Volume IV, Issue 2, Winter 1997


State Criminal Laws in Cyberspace: Reconciling Freedom for Users with Effective Law Enforcement

Sean M. Thornton[*]


Cite As: Sean M. Thornton, State Criminal Laws in Cyberspace: Reconciling Freedom for Users with Effective Law Enforcement, 4 RICH. J.L. & TECH. 5, (Winter 1997) <http://www.richmond.edu/~jolt/v4i2/thornton.html>[**].


I. Introduction

II. Cyberspace Freedom and Local Law Enforcement: Mutually Exclusive Policies?

A. The Granite Gate Affair

B. Jurisdiction as a Threat to Freedom in Cyberspace

C. Jurisdiction as a Vindication of State Sovereignty

III. The Constructive Presence Doctrine

A. Constructive Presence in American Law

B. Constructive Presence in International Law

C. Obtaining Personal Jurisdiction Over Foreign Actors

IV. Cyberspace and Criminal Jurisdiction

A. U.S. Developments: Willingness to Prosecute Cyberspace Offenses

B. International Developments: Substantive Support for Extraterritorial Jurisdiction over Cyberspace Activities, But Procedural Hurdles Remain

C. Academic Developments: Cyberspace as a Separate Jurisdiction?

V. Why State Criminal Laws Should Apply to Online Gambling

A. Asserting Jurisdiction Vindicates Sovereignty

B. Asserting Jurisdiction Will Not Necessarily Threaten a User's Freedom

VI. Conclusion


I. Introduction

{1} With the proliferation of online activities in recent years, legal thinkers and the criminal justice system have faced new questions concerning the conflict of state criminal laws. These new questions have old answers; the doctrine of constructive presence has established a state's authority to prescribe an out-of-state activity that has in-state effects. Beyond the mechanical application of jurisdictional rules, however, there lie deeper policy questions concerning the fairness of subjecting computer users to multiple, inconsistent bodies of law. Cyberspace exists in all jurisdictions, and in no particular jurisdiction, at once. There is an apparent tension between the free flow of cyberspace and the sovereignty of those territories which it touches.

{2} This paper demonstrates that a state may exercise criminal jurisdiction over online activities originating elsewhere and that such jurisdiction is appropriate notwithstanding the potential conflict of criminal laws. Online gambling provides an excellent example of how the laws and policies of different states may collide. In some states, gambling is perfectly legal and socially acceptable; in many others, gambling constitutes a moral outrage and is vigorously suppressed by authorities. Online technology has circumvented territorial boundaries, and authorities in anti-gambling states are learning that every personal computer can provide local residents a direct link to a glittering "virtual casino" headquartered elsewhere. This paper focuses on gambling as the controversial activity, with emphasis on the facts of a recent case in Minnesota. It is hoped, however, that the principles of law and policy delineated in this paper can be applied to other online activities that are legal in one jurisdiction but not another.[1]

{3} Part I addresses two conflicting policies implicated by the exercise of criminal jurisdiction over online activities. Perhaps online activities that traverse several jurisdictions should not be limited to whatever withstands the scrutiny of the least tolerant state. On the other hand, states should be able to regulate what transpires within their borders. The rest of the paper attempts to reconcile these policies. Part II reviews the scope of criminal jurisdiction over activities conducted partially out-of-state, in both the interstate and international contexts. Under traditional doctrine, states such as Minnesota may prescribe out-of-state activities that cause effects in Minnesota. Part III assesses some legal issues unique to cyberspace offenses, particularly the problems of international extradition, and discusses alternatives to regulation by territorial governments. Finally, Part IV rejects the proffered alternatives and explains why state criminal laws should apply to online activities such as gambling. The exercise of jurisdiction would vindicate state sovereignty but would not necessarily limit online activities to the lowest common denominator. To the contrary, law can be a catalyst for technological and procedural changes that maximize the internal diversity of cyberspace.

II. Cyberspace Freedom and Local Law Enforcement: Mutually Exclusive Policies?

{4} If a state asserts criminal jurisdiction over online activities, there is a potential conflict between two profound policy interests: the free development of cyberspace and the needs for effective law enforcement in particular states. A recent Minnesota case involving online gambling highlights the apparent tension between freedom and sovereignty.

A. The Granite Gate Affair

{5} Granite Gate, a Nevada corporation, planned to establish an online casino, wherein users could enter a credit card number to bet on casino-style games. Such gambling is legal in Nevada, and Granite Gate was fully licensed and regulated by Nevada authorities.[2] The games offered by Granite Gate, however, would not be legal in Minnesota, where authorities prohibit most forms of gambling.[3] The Minnesota Attorney General announced that the proprietors of online services which are accessible from within Minnesota and which violate Minnesota laws would be subject to criminal prosecution.[4]

{6} Rather than prosecute, the Minnesota Attorney General filed a civil consumer-protection suit against Granite Gate and its proprietor. The complaint alleged that Granite Gate committed fraud and deceptive trade practices by advertising that its services do not violate federal gambling laws.[5] Under 18 U.S.C. § 1084, federal law does prohibit the use of wires to transmit gambling information across state lines.[6] Section 1084, however, does not pre-empt prosecution under state laws.[7] Thus, criminal prosecution under state laws remains an option, provided that the state has authority to prescribe an out-of-state activity. The American legal system, and American society, may be unwilling to accept that a Nevada businessman, acting lawfully in Nevada, might be hauled into a Minnesota criminal court and sent to prison for his acts in Nevada.

{7} In the Granite Gate case, the Minnesota Attorney General has taken the less inflammatory approach of asserting civil jurisdiction under an unambiguous federal statute.[8] This paper focuses on the harder questions raised by the Granite Gate affair: whether state criminal laws can punish out-of-state providers of gambling services and, if so, whether such extraterritorial application of state criminal laws is good policy. Such questions are not merely abstract. The Justice Department has declined to enforce §1084 against online gambling operations and instead has deferred to state prosecutors.[9] The attorneys general of several states have been eager to fill the void left by federal prosecutors, and they, too, have asserted that their criminal laws can apply to online activities conducted from out of state.[10]

B. Jurisdiction as a Threat to Freedom in Cyberspace

{8} The assertion by various attorneys general that state laws apply to out-of-state proprietors of online services presents society with a potentially troubling choice. Freedom in cyberspace and the sovereignty of states appear to conflict. An exercise of jurisdiction may stifle the growth of online activities, but if online activities do not conform to local standards, the state interest in maintaining order within its territory may be undermined.

{9} If cyberspace enterprises like Granite Gate are subjected to the conflicting criminal laws of all territorial jurisdictions, online activities might be limited to the lowest common denominator.[11] Granite Gate might cease providing services altogether rather than risk prosecution in a remote forum, just as CompuServe prevented all its customers from accessing certain discussion groups because they were deemed illegal in Germany.[12]  For several weeks in early 1996, American subscribers to CompuServe could not engage in speech protected by their First Amendment because the subject of their speech is outlawed in Germany.[13] Thus, the spoil-sports among territorial authorities might force the entire world to play by their rules. Because Minnesota prohibits gambling, Nevadans might not be able to gamble online, even though their own state would allow them to do so. Cyberspace's potential as a vehicle of communication and entertainment might be limited to whatever activities meet the approval of the most repressive regimes.

C. Jurisdiction as a Vindication of State Sovereignty

{10} States, however, do have a legitimate interest in enforcing their laws on their own soil. Minnesota authorities have prohibited gambling because they believe it has negative moral and social repercussions.[14] Minnesota's police power and sovereignty would be undermined if Minnesotans cannot gamble in taverns or casinos, but can gamble from personal computers in their homes, businesses, or schools. A conflict-of-laws regime that fails to recognize the local sovereign's interest in controlling such activities would be inherently unstable.[15]

{11} State authorities in this context are not simply twentieth century Luddites, vainly trying to halt the march of progress. If cyberspace is to become part of everyday life, it should conform to society's everyday expectations of order and decency. Singapore, for example, prides itself on maintaining an orderly, wholesome society. Singapore's government has encouraged the widespread use of the Internet. To reconcile its interests in maintaining decency and encouraging the growth of computer networks, Singapore has required the use of special software programs to filter offensive materials.[16] "We refuse to accept that the free flow of information [in cyberspace] means allowing an environment for crime and sleaze to flourish," explained Singapore's minister of information.[17] The problem for international online activities, of course, is that Singapore's definition of "crime and sleaze" might be considerably less tolerant than America's.

{12} Thus, a consumer-protection suit in a Minnesota state court raises profound questions of how the criminal laws of some jurisdictions will affect online activities carried on elsewhere. Two laudable policies appear to conflict--the freedom of borderless cyberspace and the maintenance of order within physical jurisdictions. How does the law resolve the problem of online activities that are legal in some jurisdictions but not others?


III. The Constructive Presence Doctrine

{13} Under the doctrine of constructive presence, online casinos would be subject to the laws of those jurisdictions wherein their effects are felt. Even when the defendant's actions are perfectly legal in the state where he is acting, American courts have long held that he can be punished in any state where the effects of his actions violate local laws. International law also recognizes the doctrine of constructive presence, so a foreign proprietor of an online casino could be held accountable in an American state.

A. Constructive Presence in American Law

{14} The scope of a state's criminal jurisdiction is generally restricted to its territory.[18] At least part of an activity must take place within the physical territory of a state before its legislature can prohibit that activity. Because people and things move freely among states, a state's laws may apply extraterritorially to reach a perpetrator of a crime with in-state effects. The law might have reason to be more lenient, however, on an out-of-state defendant who inadvertently violates local laws while acting within his own state.[19] Cases from the early twentieth century suggested that one state could not punish an out-of-state actor who acted lawfully in his own state, even if his actions caused detrimental effects in the first state.

{15} In Nielsen v. Oregon,[20] the Supreme Court held that where two states have concurrent jurisdiction, one state cannot disregard the authority of the other for a legal act done within its own territorial limits. By an Act of Congress, Oregon and Washington exercised concurrent jurisdiction over the Columbia River. Oregon, but not Washington, prohibited fishing on the river with so-called "purse nets."[21] Mr. Nielsen, who held a Washington state fishing license, was caught fishing with a purse net on the Columbia River. The Oregon circuit court convicted him. The Supreme Court unanimously overturned the conviction. The Court framed the issue starkly:

Can the State of Oregon, by virtue of its concurrent jurisdiction, disregard [Washington's] authority, practically override the legislation of Washington, and punish a man for doing within the territorial limits of Washington an act which that state had specifically authorized him to do? We are of the opinion that it cannot.[22]

Nielsen acted in Washington, and under the authority of Washington law. Yet, under the concurrent-jurisdiction regime, he acted simultaneously in Oregon, where his activities were illegal. By analogy, Granite Gate physically acts within Nevada, and under the authority of Nevada law, when it receives bets from Minnesota users--and yet, through dimensionless cyberspace, the actions also take place in Minnesota and break Minnesota law. Nielsen benefitted from the less stringent of the two applicable laws. If we substitute Nevada for Washington, and Minnesota for Oregon, we might have our answer to the Granite Gate problem. An exercise of state jurisdiction would appear to violate the sovereignty principles underlying the Nielsen decision.

{16} In Beattie v. State,[23] an Arkansas circuit court convicted a Missouri rancher when he turned his cattle loose to graze in Missouri, and they wandered into Arkansas, which prohibited free-ranging. The Supreme Court of Arkansas overturned Beattie's conviction with the simple explanation that "the Legislature of this state has no power to punish a resident of Missouri for a lawful act done in that state."[24] The court held that even if Beattie had expected the cattle to enter Arkansas, he could not be punished because he acted in Missouri, where free-ranging was legal.[25] Granite Gate is authorized to administer games of chance in Nevada. Under the Beattie rationale, Granite Gate could not be prosecuted under the criminal laws of other states, even where interference with the gambling policies of such states is foreseeable.

{17} Nielsen and Beattie suggest that the Nevada proprietor of an online casino would not be subject to criminal jurisdiction in other states from which users could access the casino. However, there has been an important change in American criminal law since those cases were decided. Soon after Nielsen and Beattie, American courts began to recognize the doctrine of "constructive presence." Any state that feels the effects may punish for an out-of-state action. To use a popular example, a person cannot stand in one state and fire a gun into another state with impunity.[26]

{18} The great shift occurred in 1911, when the Supreme Court first articulated the doctrine of constructive presence. In Strassheim v. Daily,[27] a Michigan court convicted an Illinois man for bribery and for defrauding the state. Daily had bribed a Michigan state official who was visiting Chicago and induced him to overpay for inferior, used machinery. Daily never visited Michigan until long after the Chicago incident.[28] The Court concluded that Michigan had jurisdiction to punish the Illinois activities. "Acts done outside a jurisdiction, but intended to produce and producing detrimental effects within it, justify a state in punishing the cause of the harm. . . ."[29] Strassheim has been widely followed in state courts that have used the constructive presence doctrine to augment the state's authority to prescribe out-of-state conduct.[30] State law now reaches out-of-state defendants whose activities have in-state effects, whether or not the action was a crime where the defendant physically acted.[31]

B. Constructive Presence in International Law

{19} The scope of a state's prescriptive jurisdiction over cyberspace will have not only national but also international implications. For example, the gambling service offered by Granite Gate purports to be "based in the country of Belize,"[32] perhaps in an attempt to avoid litigation in the United States. The Minnesota and Florida attorneys general, however, insist that even foreigners acting in their own countries could be subject to state prosecution for their online activities.[33] The threat of criminal prosecution overseas has prompted drastic responses from the American-based Internet access provider CompuServe, which blacked out certain online discussion groups to users of every nationality in order to prevent prosecution in Germany.[34]

{20}  International law has long recognized the constructive presence doctrine familiar in domestic law.[35] American states possess no authority to interact directly with foreign nations,[36] but states may exercise prescriptive jurisdiction over foreign activities that have local effects to the same extent as the federal government.[37]

{21} In S.S. Lotus,[38] the Permanent Court of International Justice held that Turkey could imprison a French sailor who allowed his steamship to collide with a Turkish vessel in the Mediterranean.[39] By international legal fiction, a ship has been long treated as part of the physical territory of the state whose flag it flies;[40] thus, the French ship was French territory, and the Turkish ship was Turkish territory. France protested that Turkey wielded no jurisdiction over an act committed on the high seas by a foreigner aboard a foreign vessel.[41] The court disagreed, finding that the effects of the sailor's negligence were felt in Turkish territory.[42] S.S. Lotus has been recognized as the first articulation of constructive presence in international law.[43] By extension, constructive presence would also allow an American state to assert jurisdiction over foreigners whose actions abroad have detrimental local effects.[44]

C. Obtaining Personal Jurisdiction Over Foreign Actors

{22} Once prescriptive jurisdiction over the activity has been established, obtaining personal jurisdiction over an out-of-state defendant is a separate procedural matter and the details are beyond the scope of this short paper.[45] When the defendant is in another American state, that state is obliged by federal law to extradite the defendant.[46] Internationally, extradition for online offenses has been complicated by out-of-date treaties and gaps in existing law. The problems of international extradition for cyberspace offenses are discussed in more detail in Part III.B below.

{23} Thus, in both the interstate and international contexts, constructive presence would appear to provide a basis for prescriptive jurisdiction over online gambling services based elsewhere. However, Strassheim and S.S. Lotus were decided decades before the birth of cyberspace.[47] Perhaps the characteristics of cyberspace might challenge the legitimacy and feasibility of criminal jurisdiction by territorial authorities.


IV. Cyberspace and Criminal Jurisdiction

{24} This part examines certain legal developments unique to cyberspace offenses. At the national level, courts have willingly applied the criminal laws of their respective jurisdictions to online activities originating elsewhere. At the international level, law enforcement officials and diplomats have demonstrated the same willingness, but they have faced procedural hurdles in extraditing foreigners who have violated domestic laws. Some commentators have recommended that the law adapt to the special features and possibilities of cyberspace; others, more radical, urge the recognition of cyberspace as a separate jurisdiction.

A. U.S. Developments: Willingness to Prosecute Cyberspace Offenses

{25} Some United States courts have reinterpreted criminal laws to meet the needs of law enforcement in cyberspace and have applied the standards of a particular state to online activities traversing several states. The Granite Gate consumer-protection suit is still pending. While my research has uncovered no criminal decisions concerning interstate online gambling,[48] two recent federal cases illustrate the approach a state court could take in allocating prescriptive authority.

{26} In United States v. Thomas,[49] the U.S. Court of Appeals for the Sixth Circuit applied the community standards of Memphis, Tennessee, to determine the obscenity of pictures downloaded from a California-based computer bulletin board service (BBS). Acting on a tip, a federal agent in Memphis applied for a password to join the BBS and then downloaded several sexually-explicit photographs. The Thomases, who operated the BBS from their home in northern California, were convicted for interstate transportation of obscene materials.

{27} Obscenity is determined by the standards of the community surrounding a trial.[50] At their trial, the Thomases maintained that the relevant standards should be the more lenient ones of their physical location, near San Francisco.[51] The Electronic Frontier Foundation, in an amicus brief, argued that the online community itself provided the relevant standard.[52] The circuit court declined both alternatives and affirmed the district court's choice of Memphis--the place of the trial--as the relevant community. The images were downloaded there, and, "[i]f Defendants did not wish to subject themselves to liability in jurisdictions with less tolerant standards for determining obscenity, they could have refused to give passwords to members in those districts. . . ."[53]

{28} In Playboy Enterprises, Inc. v. Chuckleberry Publishing, Inc.,[54] the U.S. District Court for the Southern District of New York held an Italian defendant in contempt of court for failing to prevent American users from accessing the defendant's Web site based in Italy. The Italian defendant published a "male sophisticate magazine" under the title Playmen.[55] The American publishers of Playboy, a similar publication, obtained an injunction in 1981 to prevent the "publishing, printing, distributing or selling in the United States" of Playmen.[56] The court in Chuckleberry found that the Web site, created in 1996, violated the terms of the 1981 injunction insofar as users physically located in the United States could view and download images.[57] The court did not question Playmen's right to maintain the Web site in Italy, but held that Playmen had an affirmative duty to prevent American users from accessing the site:

While this Court has neither the jurisdiction nor the desire to prohibit the creation of Internet sites around the globe, it may prohibit access to those sites in this country. Therefore, while [the defendant] may continue to operate its Internet site, it must refrain from accepting subscriptions from customers living in the United States.[58]

Thus the burden rests with the proprietor of the overseas Web site, not the local user, to ensure compliance with local laws.

{29} The Thomas and Chuckleberry opinions suggest that cyberspace activities are subject to the laws of the physical jurisdictions in which they surface, not just those in which they originate. By extension, it seems Granite Gate cannot hide behind Nevada laws permitting gambling if its games of chance are accessible from states where gambling is illegal.

B. International Developments: Substantive Support for Extraterritorial Jurisdiction over Cyberspace Activities, But Procedural Hurdles Remain

{30} The constructive presence doctrine has been invoked in international cyberspace incidents. Although the constructive presence doctrine provides substantive support for a state's exercise of criminal jurisdiction over a foreign online gambling service,[59] international law enforcement also requires extradition of the accused. Under current treaties, online offenses are not necessarily extraditable. However, diplomats and international organizations are working to close this gap in international criminal procedure. Gradually, extradition procedures should be modified to account for online offenses.

{31} Law enforcement officials have cited constructive presence as the basis of jurisdiction over online crimes of an international character. German prosecutors invoked the constructive presence doctrine in the string of investigations relating to the CompuServe affair. When Canadian neo-Nazi information was accessible online in Germany, "the scene of the crime [was] all of Germany."[60] When an Argentine university student accessed sensitive American military networks from his home in Buenos Aires, in violation of U.S. law, he was constructively present in the United States.[61] In the same way, constructive presence principles would grant Minnesota jurisdiction over an online casino that affected Minnesota, whether it was operated in Nevada or Belize.

{32} Although an American state would possess jurisdiction to prescribe foreign online gambling services that might be available to its citizens, jurisdiction to adjudicate would be more difficult to obtain because it depends upon the foreign nation-state's willingness to extradite.[62] As a matter of domestic U.S. law, one American state is obliged to extradite to another[63] but there is no duty to extradite under international law. Any such duty arises solely from the particular language of individually-negotiated treaties,[64] which may not yet encompass online offenses. Traditionally, an extradition treaty specifies certain serious crimes for which the parties must extradite. A nation-state may refuse extradition for any offense not enumerated in the treaty. More recent extradition treaties tend to be predicated on double-criminality: rather than enumerate every conceivable crime, the two parties provide that the act for which extradition is requested must be a crime according to the laws of both nations.[65] Thus, in the international arena it is relatively easy to prescribe behavior, but -- unlike the situation among American states -- more difficult to punish those who act from a jurisdiction where their actions are legal.

{33} Under either the enumeration or double-criminality extradition treaties, online offenses pose problems. Online offenses are not likely to be enumerated in traditional extradition treaties because they are a product of newly developed technology.[66] For the same reason, online activities are not likely to be categorized as crimes in any two given nations; thus the double-criminality requirement of some extradition treaties may be difficult to meet. There is also a gap between the developed and developing countries in the definition and punishment of computer offenses.[67] A former President of the International Court of Justice expressed alarm at the failure of international law to keep pace with technological developments.[68] International bodies also have urged the harmonization of national laws to prevent crime havens.[69] But in many nation-states, as in certain American states, gambling is perfectly legal and the double-criminality requirement cannot be satisfied. Thus, for the time being, an online casino may be safe and sound abroad.

{34} The problem of extradition for cyberspace offenses was illustrated in the spring of 1996. An Argentine university student allegedly infiltrated American military computer networks -- as well as sensitive systems in Brazil, Chile, South Korea, and Taiwan -- from his home in Buenos Aires.[70] The student could not be extradited to the United States under current treaties, although he faced charges for related offenses in Argentina.[71]

{35} The extradition requirement is difficult to avoid. It is a violation of international law to invade the territory of another nation-state to abduct that state's nationals without permission.[72] The United States has flaunted the no-abduction principle in certain cases, most notably those involving Latin American drug traffickers.[73] However, American national security is perhaps less at risk in the case of online gambling. In addition, compliance with international law should be the ideal in shaping a new law of cyberspace. In the Argentine affair, which seriously implicated national security, the United States honored existing extradition treaties and did not attempt kidnaping. While international law has not evolved to provide prompt extradition of perpetrators of computer crimes, recent developments may instigate revisions of extradition treaties and the harmonization of national laws.

C. Academic Developments: Cyberspace as a Separate Jurisdiction?

{36} An alternative to state jurisdiction may be emerging: why not respect cyberspace as a separate jurisdiction, and allow the millions of users to develop their own rules for controlling access to services such as online gambling? The unique features of cyberspace may warrant its treatment as a separate jurisdiction. Attempts by state authorities to regulate online activities suffer from a lack of both feasibility and legitimacy. The anonymity of cyberspace transactions means that we cannot reasonably expect users and proprietors of online services to know the physical location of others. Indeed, because there is no correlation between Internet addresses and physical locations, cyberspace is indifferent to territorial boundaries.[74]

{37} Rather than allow territorial authorities to subject online activities to multiple and inconsistent laws, it might be better to "defer to the self-regulatory efforts of Cyberspace participants . . . ."[75] If given the chance, the users themselves might develop institutions to regulate such activities as online gambling.[76] By treating cyberspace as a different jurisdiction, actors such as Granite Gate or the Thomases would not be surprised by sudden assertions of jurisdiction in a remote forum.[77] To the contrary, "Minnesota has no special right to prohibit such activities" as online gambling because, inter alia, "[t]he state lacks enforcement power . . . and does not speak for the community with the most legitimate claim to self-governance."[78]

{38} The Electronic Frontier Foundation made a similar proposal as amicus curiae in the Thomas case.[79] When the court was determining which community's standards to apply to determine the obscenity of downloaded pictures, the Foundation suggested that the court apply the standards of the online community itself, rather than a territorial community such as San Francisco or Memphis.[80] The Foundation also argued that to subject a user to the multiple and inconsistent standards of several communities would chill free speech,[81] an echo of the policy argument that assertions of jurisdiction would limit online activities to the lowest common denominator.[82]

{39} Cyberspace presents certain challenges to the direct application of state law through the doctrine of constructive presence. In the United States, the courts have found the challenges novel but not insurmountable. The Thomas and Chuckleberry opinions suggest that online activities are subject to the laws of any territorial jurisdiction from which they are accessible. At the international level, extradition treaties have not yet been amended to take account of online offenses. There is a strong movement to revise those treaties, but, even if they are amended, the double-criminality requirement might prevent extradition of those who operate online casinos in jurisdictions where their activity is legal. Because the technology is new and indifferent to territorial borders, some commentators have urged that cyberspace be treated as a separate jurisdiction.


V. Why State Criminal Laws Should Apply to Online Gambling

{40} State criminal laws should apply to multi-jurisdictional online activities because the apparent tension between the freedom of cyberspace and the sovereignty of states is illusory. Application of state criminal laws to online activities can advance both interests. First, the only way to vindicate sovereignty is to allow the exercise of jurisdiction over out-of-state online services that violate state laws. Second, recent assertions of jurisdiction indicate that there is no lasting threat to freedom in cyberspace. Rather, the law has been a catalyst for improvement and can instigate appropriate technological and procedural responses. These technological and procedural changes help reconcile the tension between freedom and sovereignty.

A. Asserting Jurisdiction Vindicates Sovereignty

{41} Constructive presence is here to stay, in both the domestic and international contexts. Since the landmark Strassheim v. Daily and S.S. Lotus cases, discussed in Part II above, the legal system has recognized that the constructive presence doctrine is necessary to maintain order in a world of transient criminals.[83] Out-of-state actors cannot be immune from prosecution when their actions have unlawful in-state effects. The nineteenth-century rules of territoriality that predated Strassheim and S.S. Lotus did not then and cannot now adequately protect state sovereignty.[84]

{42} As an alternative to jurisdiction under the laws of multiple states, some commentators have urged that cyberspace be treated as a separate jurisdiction.[85] While this proposal might have the advantage of clarity, its prospects for immediate adoption are slim. The Thomas court was not persuaded that the standards of the online community, rather than those of Memphis, should determine whether sexually-explicit pictures are legally obscene.[86] The Chuckleberry court also imposed local territorial standards on an Italy-based site, by requiring the Italian defendants to prevent Americans from accessing material that might violate U.S. trademark laws.[87] Yet even if acceptance of cyberspace separatism grows, the potential for conflict of criminal laws does not disappear. A territorial sovereign cannot allow the harmful effects of online activities to spill over into the world of atoms, for the same reason that a sovereign cannot allow bombs to be lobbed into its territory from another.[88] When an online casino is accessible from within Minnesota, the effects of gambling clearly spill into the state. Minnesotans can lose their money and, perhaps, their morals to services similar to those of Granite Gate. Local authorities have a strong interest in preventing that loss.[89] When a sovereign has legitimate reasons to exercise jurisdiction, it should be able to do so.

B. Asserting Jurisdiction Will Not Necessarily Threaten a User's Freedom

{43} The results of applying state law would not be nearly as cataclysmic as cyberspace activists predict. To the contrary, the specter of prosecution prompts technological and procedural improvements that would, in our example, allow Nevada residents to gamble online yet still allow Minnesota authorities to prevent their citizens from doing the same. Law can be a catalyst for the progress and technological development of cyberspace.

{44} It has become axiomatic that the law cannot possibly keep up with the dizzying advancements of technology. In light of the law's purported inability to keep up with new technologies, some urge a cautious approach to cyberspace problems, allowing this field of law to develop slowly.[90] Because of cyberspace's qualities of anonymity, at least one commentator concludes that prosecution is generally impractical and urges crime prevention through the development of superior technology.[91]

{45} Until authorities intervene, however, the engineers and entrepreneurs have few incentives to address problems such as conflicting criminal laws. Technological and procedural safeguards tend to arise only in response to the threat of prosecution. Crime prevention will not occur until those potentially responsible face the real threat of prosecution. The CompuServe affair illustrates that an assertion of prescriptive jurisdiction may be the best catalyst for technological change. In response to complaints from German prosecutors concerning offensive material available through CompuServe, the company initially blocked everyone's access to the material because it lacked the technology to prevent only Germans from such access.[92] Soon after, however, CompuServe developed software for German users, and others who were offended by certain pornographic and political material, that blocked the offensive material.[93] The same software could be utilized to block access to gambling services.[94] The result has given effect to the competing interests of freedom and sovereignty. Outside of Germany, those who are interested in discussing neo-Nazi propaganda and sexual topics may do so, while inside Germany, national laws have successfully screened illegal materials. The filtering software is not perfect, as skillful users can disable it or circumvent local restrictions by accessing the Internet through more lenient countries.[95] But the fact that it was introduced at all reflects the potential for technological solutions to reconcile the tension between freedom for users and effective local law enforcement.

{46} Where technological solutions are not yet available, recent cases illustrate the potential for procedural safeguards. In the Thomas case, the provider required applications with proof of age before allowing users to download sexually-explicit material.[96] The court held that the Thomases should have denied downloading privileges to users from other jurisdictions if they did not wish to subject themselves to the standards of those jurisdictions.[97] Likewise, the Chuckleberry court required the Italian purveyor of online Playmen magazine to "either shut down its Internet site completely or refrain from accepting any new subscriptions from customers residing in the United States."[98] In its lengthy findings of fact, the district court in ACLU v. Reno noted that Web-based technologies allow servers to interrogate prospective users and require proof of age or residency.[99]

{47} At least one online gambling service has enacted preventive procedures similar to those recommended by the courts. Before a user may place bets with a Maryland-based online casino, he or she must register by submitting proof of age and residence. If registered from a jurisdiction where a particular game is illegal, the user is ineligible to play for money. These procedures were reportedly enacted to pre-empt the sort of legal action taken in Minnesota against Granite Gate.[100]

{48} National and international businesses have long existed in a world in which one activity might be subjected to the laws multiple jurisdictions. The application of U.S. antitrust laws to foreign companies does not mean that such companies need not, or cannot, comply with the laws of their own jurisdictions as well.[101] As one court reasoned in the context of international economic regulations:

Certainly the doctrine of territorial sovereignty is not such an artificial limit on the vindication of legitimate sovereign interests that the injured state confronts the wrong side of a one-way glass, powerless to counteract harmful effects originating outside its boundaries which easily pierce its 'sovereign' walls, while its own regulatory efforts are reflected back in its face.[102]

Enterprises that operate in many jurisdictions at once can and do conform to multiple laws. In the same way, a company like Granite Gate should expect to conform with the laws of all territorial jurisdictions in which it operates. The steps taken by CompuServe and the Maryland casino further illustrate that the burden of compliance is not prohibitive in the online environment.

{49} State assertion of jurisdiction over online activities has been likened to "a local lord in medieval times either trying to prevent the silk trade from passing through his boundaries (to the dismay of local customers and merchants) or purporting to assert jurisdiction over the entire known world."[103] This analogy, however, does not fairly capture the interests of sovereigns such as Minnesota or Germany or Singapore. Rather, an assertion of jurisdiction is the modern equivalent of asking the silk merchants to check their weapons and opium at the city gates. Territorial sovereigns generally welcome the commercial and cultural benefits of this twenty-first century "silk trade," but they cannot allow undesirable activities that they have banned - whether gambling or obscenity or neo-Nazi propaganda - to infiltrate their territories through new routes.

{50} Technological and procedural solutions are far from perfect. The unique features of cyberspace may continue to thwart attempts to exercise jurisdiction over online activities. Because computers are not inherently tied to physical locations, users now easily circumvent the restraints of certain territorial jurisdictions.[104] Anonymity is a related problem, as it remains virtually impossible to determine the location, age or identity of another user.[105] Currently available technology and procedures are, however, at least a step toward vindicating sovereignty while preserving freedom. To prevent certain activities from being driven offline entirely, as happened in the Thomas case, technology and procedures must evolve to conform with legal expectations.

VI. Conclusion

{51} A state's criminal laws can apply to online activities that originate out-of-state. Constructive presence, a principle of both domestic and international law, recognizes a state's right to regulate those out-of-state activities that cause unlawful effects within the state. The unique features of cyberspace have raised questions about the applicability of old doctrine in a new environment. In the American system, however, courts do not appear to be reluctant to apply the standards of one jurisdiction to activities originating in another. In the international system, the ability of a state to punish out-of-state actors has been hindered by extradition mechanisms which do not yet account for online offenses. However, as national laws are harmonized and as treaties are renegotiated to authorize the extradition of online criminals, states will enjoy greater authority to punish foreign online gambling operations that peddle their services to Americans.

{52} As a matter of policy, states that are affected by online activities should be able to regulate those activities through criminal penalties. Even if territorial authorities were prepared to delegate their power to cyberspace users themselves, an independent jurisdiction of "Cyberspace" is not necessary to preserve the freedom of users. The apparent tension between the sovereignty of particular states and the freedom of all cyberspace users can be reconciled. An assertion of jurisdiction serves as a catalyst for technological and procedural changes in how online operations work. The resulting changes would enhance the internal diversity of cyberspace. Nevadans would be able to gamble in Nevada, Minnesota authorities would be able to keep gambling out of their territory, and legitimate Nevada businesses like Granite Gate would be able to remain online.


[*] Sean M. Thornton recently graduated, with honors, from the Georgetown University Law Center and received his A.B. degree magna cum laude from Harvard College in 1994. Mr. Thornton is currently a law clerk for the Honorable John M. Steadman of the Court of Appeals for the District of Columbia.

[**]NOTE: All endnote citations in this article follow the conventions appropriate to the edition of THE BLUEBOOK: A UNIFORM SYSTEM OF CITATION that was in effect at the time of publication. When citing to this article, please use the format required by the Seventeenth Edition of THE BLUEBOOK, provided below for your convenience.

Sean M. Thornton, State Criminal Laws in Cyberspace: Reconciling Freedom for Users with Effective Law Enforcement, 4 RICH. J.L. & TECH. 5, (Winter 1997), at http://www.richmond.edu/~jolt/v4i2/thornton.html.

[1] Other authors have explored cyberspace aspects of state jurisdiction, but they have focused on civil rather than criminal proceedings. See, e.g., Matthew R. Burnstein, Note, Conflicts on the Net: Choice of Law in Transnational Cyberspace, 29 Vand. J. Transnat'l L. 75 (1996); Richard S. Zembek, Comment, Jurisdiction and the Internet: Fundamental Fairness in the Networked World of Cyberspace, 6 ALB. L.J. SCI. & TECH. 339 (1996). One work addresses online gambling but in the federal rather than the state criminal context. Seth Gorman & Antony Loo, Comment, Blackjack or Bust: Can U.S. Law Stop Internet Gambling?, 16 LOY. L.A. ENT. L.J. 667 (1996). The First Amendment may provide an ultimate check on state authority over online gambling, although the transmission of gambling information has been held not to be constitutionally-protected speech. Compare Reno v. ACLU, 117 S. Ct. 2329 (1997) avail. in <http://laws.findlaw.com/US/000/96-511.html> withUnited States v. Cerone, 452 F.2d 274, 286 (7th Cir. 1971) and Truchinski v. United States, 393 F.2d 637, 634 (8th Cir. 1968). This paper focuses solely on the yet unexamined question of to what extent a state may apply its criminal laws to online activities such as gambling.

[2] See State v. Granite Gate Resorts, Inc., 568 N.W.2d 715, 717 (Minn. App. 1997); see also Complaint, State v. Granite Gate Resorts, Inc., No. C6-95-7227 (Minn. Dist. Ct. filed July 18, 1995) (visited October 22, 1997) <http://www.state.mn.us/ebranch/ag/ggcom.txt> [hereinafter Complaint].

[3] See, e.g., Minn. Stat. § 609.75, subd. 1 (lotteries); subd. 2 (bets); subd. 7 (sports bookmaking) avail. in <http://www.revisor.leg.state.mn.us>

[4] See Minnesota Attorney General's Office, Law Enforcement Section, Warning to All Internet Users and Providers (visited October 22, 1997) <http://www.state.mn.us/ebranch/ag/memo.txt> [hereinafter Warning].

[5] See Complaint, supra note 2, ¶¶ 18-24.

[6] And commentators agree that the federal laws would and should apply to online gambling. See Gorman & Loo, supra note 1.

[7] "Nothing contained in this section shall create immunity from criminal prosecution under any laws of any State." 18 U.S.C.A. § 1084(c) (West 1997) avail. in <http://www.law.cornell.edu/uscode/18/1084.shtml>.

[8] The state court has found that it has personal jurisdiction over the out-of-state defendants based on a minimum-contacts analysis. State v. Granite Gate Resorts, Inc., No. C6-95-7227, 1996 WL 767431, at *6-11 (Minn. Dist. Ct. Dec. 11, 1996), aff'd, 568 N.W.2d 715 (Minn. App. 1997). As of this writing, the Granite Gate court has not reached the merits of the case.

[9] See Doug Abrahms, Gambling Explodes on the Internet as Regulators Scramble to Catch Up, Wash. Times, Apr. 11, 1996, at B7 (quoting John Russell, Justice Department spokesperson).

[10] See Warning, supra note 4; Op. Fla. Att'y Gen. 95-70 (1995) (visited October 22, 1997) <http://legal1.firn.edu/ago.nsf/aaee37715760bbce852563cc001bacf7/5bfc8db232c406828525626900683218?OpenDocument> [hereinafter Florida Opinion]; Illinois Issues Nine Charges of Fraud in Cyberspace, Interactive Marketing News, Jan. 19, 1996, available in 1996 WL 7819853. See generally Marc L. Caden & Stephanie E. Lucas, Comment, Accidents on the Information Superhighway: On-Line Liability and Regulation, 2 RICH. J.L. & TECH. 3, ¶¶ 83-86 (Feb. 13, 1996) <http://www.richmond.edu/~jolt/v2i1/caden_lucas.html> (describing "patchwork approach" of state authorities to online gambling).

[11] Cf. ACLU v. Reno, 929 F. Supp. 824, 877-78 (Dalzell, J.) (predicting that the Communications Decency Act of 1996 would cause users to "censor their speech so that it is palatable in every community"), aff'd, 117 S. Ct. 2329 (1997).

[12] See John Markoff, On-Line Service Blocks Access to Topics Called Pornographic, N.Y. Times, Dec. 29, 1995, at A1.

[13] The CompuServe ban was lifted in February 1996, after CompuServe developed software for its German subscribers to filter out the illegal material. See Peter H. Lewis, An On-Line Service Halts Restriction on Sex Material, N.Y. Times, Feb. 14, 1996, at A4.

[14] See Steve Kinsella & Joe Loveland, Minnesota A.G. Files Legal Action Against Individuals Involved in Computer On-Line Scams, July 18, 1995, available in LEXIS, Hottop Library, Extra File.

[15] See Joel P. Trachtman, Conflict of Laws and Accuracy in the Allocation of Government Responsibility, 26 Vand. J. Transnat'l L. 975, 1048 (1994) ("This is nothing less than the principle that each community should have control over its own destiny and be able to negotiate with other communities, or foreign individuals, when their destinies collide.").

[16] See Darren McDermott, Singapore Posts Restrictions on the Net, Asian Wall St. J., Mar. 6, 1996, available in 1996 WL-WSJA 3328933.

[17] Jon Auerbach, Fences in Cyberspace: Governments Move to Limit Free Flow of the Internet, BOSTON GLOBE, Feb. 1, 1996 (quoting George Yeo, Singapore's Minister of Information).

[18] See LEA BRILMAYER, AN INTRODUCTION TO JURISDICTION IN THE AMERICAN FEDERAL SYSTEM 321 (1986). See also B.J. George, Jr., Extraterritorial Application of Penal Legislation, 64 MICH. L. REV. 609, 626 (1966) (lamenting the "triumph of the rote of the territorial principle over the pragmatic needs of law enforcement").

[19] For a general discussion of the "rule of lenity" in interpreting criminal statutes, see WILLIAM N. ESKRIDGE, JR. & PHILIP P. FRICKEY, LEGISLATION: STATUTES AND THE CREATION OF PUBLIC POLICY 655-75 (2d ed. 1995).

[20] 212 U.S. 315 (1909) avail. in <http://laws.findlaw.com/US/212/315.html>.

[21] Id. at 315.

[22] Id. at 321. See also Hyde v. United States, 225 U.S. 347, 362-363 (1912) avail. in <http://laws.findlaw.com/US/225/347.html> (if a crime originates elsewhere but is "consummated" within a given jurisdiction, that jurisdiction may apply its criminal laws).

[23] 73 Ark. 428, 84 S.W. 477 (1904).

[24] Id.

[25] See id. ("Nor do we think it would alter the case if the defendant knew at the time he turned them at large in Missouri that they would probably come into Arkansas.").

[26] See YALE KAMISAR ET AL., MODERN CRIMINAL PROCEDURE 1077 (8th ed. 1994) and George, supra note 18, at 618, for a deeper discussion of this situation. See also State v. Rossbach, 288 N.W.2d 714 (Minn. 1980) (asserting jurisdiction over Native American who fired gun from tribal reservation into state territory); State v. Winckler, 260 N.W.2d 356 (S.D. 1977) (same).

[27] 221 U.S. 280 (1911) avail. in <http://laws.findlaw.com/US/221/280.html>

[28] See id. at 284-85.

[29] Id. at 285 (Holmes, J.)

[30] See, e.g., People v. Blume, 443 Mich. 476, 480, 505 N.W.2d 843, 845 (1993) (citing Strassheim v. Daily, 221 U.S. 280 (1911) to assert jurisdiction over out-of-state conspiracy to distribute cocaine). See also Pennington v. State, 308 Md. 727, 521 A.2d 1216 (1987) (obstruction of justice perpetrated in Washington, D.C., constructively present in Maryland); State v. McCurley, 627 So.2d 339 (Miss. 1993) (Mississippi bank-fraud defendants constructively present in Louisiana); State v. Sparks, 701 S.W.2d 731 (Mo. App. 1985) (out-of-state defendant constructively present when he received livestock stolen from Missouri).

[31] And unlike the hapless defendants in Nielsenand Beattie, the proprietors of online casinos cannot credibly argue that their interstate presence is inadvertent. See Linda Kanamine, Gamblers Stake Out the 'Net, USA TODAY, Nov. 17, 1995, at A1 (describing online casino based in Turks and Caicos that serves 25,000 registered gamblers from four continents).

[32] State v. Granite Gate Resorts, Inc., 568 N.W.2d 715, 717 (Minn. App. 1997) (reproducing text of Granite Gate's homepage).

[33] See Warning, supra note 4; Florida Opinion, supra note 10. The Florida official, however, is less optimistic about the ability of state authorities to detect and apprehend foreign perpetrators of online offenses. Florida Opinion, supra note 10.

[34] See Markoff, supra note 12.

[35] See OPPENHEIM'S INTERNATIONAL LAW § 137, at 458 (Robert Jennings & Arthur Watts eds., 9th ed. 1992); Restatement (Third) of the Foreign Relations Law of the United States § 403 (1987).

[36] See Zschernig v. Miller, 389 U.S. 429, 432 (1968) avail. in <http://laws.findlaw.com/US/389/429.html> (contending that the federal system forbids "an intrusion by the State into the field of foreign affairs which the Constitution entrusts to the President and the Congress").


[38] (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10 (Sept. 7).

[39] See id. at 30.

[40] See Restatement (Third) of the Foreign Relations Law of the United States §§ 501, 502.

[41] See S.S. Lotus, 1927 P.C.I.J. at 7.

[42] "[T]he courts of many countries, even of countries which have given their criminal legislation a strictly territorial character, interpret criminal law in the sense that offenses, the authors of which at the moment of commission are in the territory of another state, are nevertheless to be regarded as having been committed in the national territory, if one of the constituent elements of the offense, and more especially its effects, have taken place there." Id. at 23 (emphasis added). See generally Rollin M. Perkins, The Territorial Principle in Criminal Law, 22 HASTINGS L.J. 1155 (1971) (equating pure territoriality with effects-based territoriality).

[43] See Oppenheim's, supra note 35, § 137, at 460 n.13 & § 140, at 478.

[44] See id. § 137, at 467 n.9 (conceding that although the editors were early advocates of a different rule, "[t]here are now very few writers who deny absolutely the right of a state to punish aliens for crimes committed abroad").

[45] Recall that criminal cases involve a different sort of personal jurisdiction from that contemplated in civil matters. For a discussion of civil personal jurisdiction, see Burnstein, supranote 1, and Zembek, supra note 1.

[46] See U.S. Const. art. IV, § 2, cl. 2 (requiring states to cooperate with one another in the apprehension and extradition of fugitives) <http://www.law.emory.edu/FEDERAL/usconst/art-4.html#sec-2http://www.law.emory.edu/FEDERAL/usconst/art-4.html#sec-2>; 18 U.S.C.A. § 3182 (West 1997) (requiring any state to extradite the defendant to any other state upon a simple showing that he has been indicted under the laws of the requesting state) <http://www.law.cornell.edu/uscode/18/3182.html>.

[47] See Reno v. ACLU, 117 S. Ct. 2329, 2334 (1997) avail. in <http://laws.findlaw.com/US/000/96-511.html> (discussing the origins of the Internet in 1969).

[48] There have been, however, a few cases concerning intrastate online gambling networks. The resulting decisions have not treated cyberspace gambling any differently than ordinary gambling. See People v. Weathersby, 514 N.W.2d 493 (Mich. 1993) (upholding conviction of operators of intrastate online gambling network under conventional state gambling statutes).

[49] 74 F.3d 701 (6th Cir.) avail. in <http://laws.findlaw.com/6th/960032p.html>, cert. denied, 117 S. Ct. 74 (1996).

[50] See id. at 710-11 (citing Miller v. California, 413 U.S. 15 (1973)).

[51] See id. at 711.

[52] See Brief for Amicus Curiae Electronic Frontier Foundation, United States v. Thomas, 74 F.3d 701 (6th Cir. 1996) (Nos. 94-6648 & 94-6649) (visited March 24, 1997) <http://www.eff.org/pub/Legal/Cases/AABBS_Thomases_Memphis/eff_aa_041995_amicus.brief>. See infra notes 74-82 and accompanying text for further discussion of the argument that cyberspace be treated as a separate jurisdiction.

[53] Thomas, 74 F.3d at 711.

[54] 939 F. Supp. 1032 (S.D.N.Y. 1996) avail. in <http://www.bna.com/e-law/cases/playmen.html>.

[55] Id. at 1033.

[56] Id.

[57] See id. at 1039.

[58] Id. at 1040.

[59] See supra notes 32-43 and accompanying text.

[60] Silvia Ascarelli, Two On-Line Services Companies Investigated in Racial Hatred Case, WALL ST. J., Jan. 26, 1996, at B2 (quoting Wolfgang Kneip, spokesperson of Mannheim prosecutor's office).

[61] See Pierre Thomas & Elizabeth Corcoran, Argentine, 22, Charged with Hacking Computer Networks, WASH. POST, Mar. 30, 1996, at A4. However, the Argentine cannot be punished for violating U.S. law because the extradition treaties between the United States and Argentina do not cover online offenses.

[62] See generally BARRY E. CARTER & PHILLIP R. TRIMBLE, INTERNATIONAL LAW 813-817 (2d ed. 1995) (describing typical extradition procedure); Ethan A. Nadelmann, The Role of the United States in International Enforcement of Criminal Law, 31 HARV. INT'L L.J. 37, 64-74 (1990).

[63] See supra note 45 and accompanying text.

[64] See OPPENHEIM'S, supra note 35, § 415, at 948; Nadelmann, supra note 62, at 64-71.

[65] See OPPENHEIM'S, supra note 35, § 419, at 958.

[66] See Association International de Droit Pénal, Resolutions of the AIDP-Colloquium, Würzburg 1992 ¶ 21, in INFORMATION TECHNOLOGY CRIME: NATIONAL LEGISLATIONS AND INTERNATIONAL INITIATIVES 627, 632 (Ulrich Sieber ed., 1994).

[67] See Ulrich Sieber, Computer Crimes and Other Crimes Against Information Technology, in Information Technology Crime, supra note 66, at 5, 11-12.

[68] See Manfred Lachs, Thoughts on Science, Technology and World Law, 86 AM. J. INT'L L. 673, 695 (1992).

[69] See Donald K. Piragoff, Presentation of the Draft United Nations Manual on Prosecution and Prevention of Computer Crime, in INFORMATION TECHNOLOGY CRIME, supra note 66, at 607; Association International de Droit Pénal, supranote 66, at 627; see also Adam G. Ciongoli et al., Computer-Related Crimes, 31 AM. CRIM. L. REV. 425, 446 (1994) (noting need for international solutions to online offenses).

[70] See Thomas & Corcoran, supra note 61, at A4.

[71] See Ross Kerber, Man Charged with Entering Computer Files, WALL ST. J., Apr. 1, 1996, at A7.

[72] See OPENHEIM'S, supra note 35, § 119, at 387.

[73] See, e.g., United States v. Alvarez-Machain, 504 U.S. 655 (1992) avail. in <http://laws.findlaw.com/US/504/655.html>; United States v. Noriega, 746 F. Supp. 1506, 1513 (S.D. Fla. 1990) (citing Strassheim v. Daily, 221 U.S. 280 (1911), to establish effects-based jurisdiction over abducted Panamanian defendant); see also OPENHEIM'S, supra note 35, § 119, at 389 n.16 (noting American approval of abduction); Nadelmann, supra note 62, at 71-74 (describing "alternatives to extradition," including abduction).

[74] See David R. Johnson & David Post, Law and Borders--The Rise of Law in Cyberspace, 48 STAN. L. REV. 1367, 1370-76 (1996).

[75] Id. at 1367.

[76] To enforce cyberspace rules, a systems operator or other official could prohibit punished users from accessing the Internet. See id. at 1388.

[77] "[Y]ou would know to abide by the 'terms of service' established by CompuServe or America Online when you are in their online territory, rather than guess whether Germany, or Tennessee, or the SEC will succeed in asserting their right to regulate your activities and those of the 'placeless' online personae with whom you communicate." Id. at 1380.

[78] Id. at 1383.

[79] See supra notes 49-53 and accompanying text.

[80] See Brief for Amicus CuriaeElectronic Frontier Foundation, supra note 52, at 12-13.

[81] See id. at 16.

[82] See supra notes 11-13 and accompanying text.

[83] See also ROBERT A. LEFLAR, AMERICAN CONFLICTS LAW § 113, at 229 (3d ed. 1977) (noting that a strict territorial theory, without mitigating fictions such as constructive presence, would help criminals who were careful about their travel plans).

[84] See Perkins, supra note 41; George, supra note 18; Daniel L. Rotenberg, Extraterritorial Legislative Jurisdiction and the State Criminal Law, 38 TEX. L. REV. 763 (1960).

[85] See supra notes 74-82 and accompanying text.

[86] See United States v. Thomas, 74 F.3d 701, 710-11 (6th Cir. 1996) avail. in <http://www.law.emory.edu/pub-cgi/print_hit_bold.pl/6circuit/jan96/96a0032p.06.html?united+states+and+%20thomas#first_hit>. See supra notes 49-53 and accompanying text.

[87] See 939 F. Supp. 1032, 1041 (S.D.N.Y. 1996). See supra notes 54-58 and accompanying text.

[88] See David G. Post, Cancelbunny and Lazarus Battle it out on the Frontier of Cyberspace&SHY;and Suggest the Limits of Social Contracts, Reason, Apr. 1996, at 29, 33.

[89] As the Minnesota attorney general remarked, "This [Granite Gate's service] is classic consumer fraud and illegal gaming, offering computer users nothing more than the opportunity to lose their money, break the law and, in some cases, break their heart[s]." Kinsella & Loveland, supra note 14.

[90] See Lawrence Lessig, The Path of Cyberlaw, 104 YALE L.J. 1743, 1745 (1995) (advocating ad hoc, case-by-case approach similar to the development of the common law).

[91] See Michael P. Dierks, Computer Network Abuse, 6 Harv. J.L. & Tech. 307 (1993). Cf. Johnson & Post, supra note 74, at 1373 n.20 ("It is our contention that posting offensive materials in areas where unwilling readers may come across them inadvertently raises different problems that are best addressed by those who understand the technology involved, rather than by extrapolating from the conflicting laws of multiple geographic jurisdictions.").

[92] See Markoff, supra note 12, at A1.

[93] See Lewis, supra note 13, at A4.

[94] See Hiawatha Bray, CompuServe Sets German Plan, Boston Globe, Feb. 14, 1996, at 42. See alsoACLU v. Reno, 929 F. Supp. 824, 840 (E.D. Pa. 1996) aff'd., 117 S.Ct. 2329 (1997) (listing categories of Web sites, including gambling-related and sexually explicit sites, that can be blocked with existing software).

[95] See Auerbach, supra note 17 (describing how German users circumvent local regulations).

[96] See Brief for Amicus CuriaeElectronic Frontier Foundation, supra note 52 avail. in <http://www.eff.org/pub/Legal/Cases/AABBS_Thomases_Memphis/eff_aa_041995_amicus.brief>.

[97] United States v. Thomas, 74 F.3d 701, 711 (6th Cir. 1996) avail. in <http://www.law.emory.edu/pub-cgi/print_hit_bold.pl/6circuit/jan96/96a0032p.06.html?united+states+and+%20thomas#first_hit>.

[98] 939 F. Supp. 1032, 1041 (S.D.N.Y. 1996) avail. in <http://www.bna.com/e-law/cases/playmen.html>.

[99] See 929 F. Supp. 837, 845 (E.D. Penn. 1996) avail. in <http://www.eff.org/pub/Censorship/Exon_bill/960612_aclu_v_reno.decision>, aff'd, 117 S. Ct. 2329 (1997) avail. in <http://laws.findlaw.com/US/000/96-511.html>.

[100] See Margaret Webb Pressler et al., Gambling on the Web, Wash. Post, Apr. 8, 1996, at F3.

[101] See Trachtman, supranote 15.

[102] Laker Airways Ltd. v. Sabena, Belgian World Airlines, 731 F.2d 909, 923 (D.C. Cir. 1984).

[103] Johnson & Post, supra note 74, at 1394.

[104] See Auerbach, supra note 17.

[105] See Dierks, supra note 91, at 333. See also David G. Post, Knock Knock, Who's There?, AM. LAW., Dec. 1995, at 113.

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