Government regulating Information Technologies
Date: November 05, 2003Source: Computer Crime Research Center
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One of the most difficult and important aspects in modern jurisprudence is the question on limits of national jurisdiction concerning Internet segments.
The problem of regulating the Internet in a legal way gives rise to the following basic questions:
• Is the Internet a sphere that should be regulated with laws? What is the legal nature of this phenomenon?
• Should the state be permitted to interfere with the Internet relations? If yes, within what limits? How should the jurisdiction of various states be differentiated with reference to such relations?
• What correlation between state established obligatory rules and network community self-regulating norms should the Internet normative regulations have?
The Internet-community representatives think that the state should not be allowed interfering with electronic relations.
From this point of view, the Internet is a unique information environment having the following features:
• The Internet is neither mass media nor communication hardware. It represents a unique environment of interpersonal dialogue having a supranational character.
• The Internet as a whole or taken separately has no proprietor, belongs to no state, organization or physical person;
• An access to the Internet resource is an individual right and cannot be limited by establishing any administrative barriers preventing it from being used in a free way (licensing of access, censorship of the Internet-resource contents, etc.);
• The Internet is a completely self-regulated information environment and its users can independently determine rules of conduct when using it.
At the same time, there is an opinion that the Internet relations should be regulated to adapt the current legislation to “requirements of a virtual life”.
In this connection the legal regulation includes: laws on mass media, civil laws and civil-remedial legislation (an order of conducting transactions through the Internet including an e-signature, the validity and evidentiary force of electronic documents, recognition of domain names as objects of intellectual property, etc.); laws on competition (regarding the Internet advertisement, non-admission of misusing a free competition connected with domain names).
First, the Internet is a unique means of an information exchange including an international one. In this connection, one of the most difficult and serious problems of regulating the Internet relations is to differentiate the corresponding jurisdiction of various states.
The lawmaker undertakes some attempts to determine a place of the state in the system of Internet relations, theoretically and practically solve a problem of substantiating the state jurisdiction with reference to particular rules, transactions and crimes on the Internet.
According to Proposals on principles of the national policy of developing and using the Russian Internet segment prepared by A. Shubin [1], the vice-president of the State Duma Committee on information politics, the virtual nature of the Net does not remove it from the Russian Federation jurisdiction and in this connection the Russian legislation adjusted for the specific character of computer communications fully applies to the electronic relations.
It should be noted that the problem of national jurisdiction (concerning the right of the state to establish obligatory rules of conduct and institute proceedings against those violating them) is solved in various fields of the modern legislation by the territorial principle.
For example, the RF Criminal code (Article 11) determining limits of Russia's criminal jurisdiction indicates those or other physical objects (territory, territorial waters and air space, continental shelf, exclusive economic zone, vessel registered at the Russian Federation port, etc.) where the state can institute criminal proceedings against those committing crimes. When criminal proceedings should be instituted against foreign diplomatic representatives, Russia's military men deployed outside their native country and so on, any questions on the correlation between foreign criminal jurisdictions are solved at the international contract level.
Even at perfunctory examination of the problem of delimitating national jurisdiction concerning this or that Internet segment (an address space area) it is easy to notice that its traditional approaches cannot be applied to the Internet "virtual" relations.
Thus, the federal legislation "About regulation of Russia's Internet segment" (About use of global public information and telecommunication networks) defines the Internet Russian segment (a global public information and telecommunication network) as a set of Internet addresses coming within the Russian Federation jurisdiction. Such a legislative idea is not something new. Researchers noted more than once that by virtue of the specific character of Internet information resources every Internet-resource could "be attached" to a certain territory only by registering a domain name in the definite Internet segment.
At the same time, there is no idea or rules of establishing jurisdiction limits in the above draft. Article 1 of the draft allows drawing an indirect conclusion that the Russian Federation jurisdiction arises from using "global public information and telecommunication networks by the Russian Federation public authorities and institutions of local governing, juridical and physical persons on the Russian Federation territory ".
Base norms of the draft are contradictory. On the one hand the Russian Federation jurisdiction limits are outlined by a certain address space (obviously, .RU zone), on the other hand, an inappropriate attempt was made to attach the concept of jurisdiction in the virtual space to the physical one (national territory). When discussing a place of the state in the Internet relations, legal experts noted more than once that it was impossible to apply a classical principle of address involving an availability of a certain physically tangible connection of the subject of legal relationships with a definite territory (residence, location) to the Internet relations having no clear territorial connection with any state.
The tendency to attach juridical and physical persons to the national jurisdiction based on a usual address principle can be traced in the Regulations of the Russian Federation Ministry of Communication and Information "On order of using domain names in the Russian Internet segment" [2]: "Official web sites of Russia's juridical persons should be located only in the Russian Internet segment (.RU zone) and only on servers of licensed Internet providers". It is easy to notice that this definition does not solve a problem of establishing precise jurisdiction rules. In addition to "official" web sites (this definition is also rather relative), other ones not coming within those or other possible criteria can be available as well. The correlation between a similar duty and the Russian Federation Constitution established right to freely search, receive, transfer, produce and distribute information in any legal way (Item 4, Article 29) also remains open to question. Besides, establishing a duty to place sites in certain Internet segments does not solve a problem of determining legal regulations subject to application when Russia's juridical person comes into relations complicated with a foreign element.
The Internet relations are often impossible to attach to any territory and, hence, to any law and order because of their complexity and availability of a foreign element. It seems the most logical to give parties of these relations according to the autonomy principle an opportunity to solve problems of an applicable law and many other ones connected with settling similar transactions. However, any relations complicated with a foreign element, first, require following national legislation instructions obligatory for the parties and, second, cannot be regulated by them thereby causing the necessity to use conflict rules of national legislations. The relations regulated with criminal and administrative laws have even more problems. It should be noted that today the problem of differentiating various national jurisdictions with reference to legal relationships connected with the use of Internet-technologies can be solved by concluding a multilateral international treaty with obligatory for its participants conflict rules that allow applying those or other legal relationships to the concrete national jurisdiction. This contract should also specify general principles and a mechanism of settling conflict questions by the interested states. It is also important to gradually unify various national legislations.
As to the correlation between obligatory legal rules established by the state, rather progressive regulations of the Russian Federation legislation "On Russian Federation national policy to develop and use Internet" submitted to the Parliament hearings "On legal regulation of use of Internet in Russian Federation " of May, 18, 2000 should be noted. In particular, the legislation formulates the following main principles of regulating the Internet relations (Article 4):
1. The Internet relations in the Russian Federation are regulated by federal public authorities through the combination of the state regulation and public self-government with observing the following principles:
• Protecting human rights and freedoms established by the Russian Federation Constitution;
• Considering features of the Internet...
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