online versus legal jurisdiction

I recently saw a story reported about a California court levying large fines against ISPs for not shutting down customers engaged in illegal activities (in this case, selling fake brand-name goods). (In case anyone wants to read the report I was pointed to, here's a link.)

On the list I saw this on, this sparked a handful messages, including some back-and-forth that crystallized some of my thoughts about legal jurisdiction and "online".

Specifically, someone said that this ruling affirmed that "online behaviour" is (largely) ruled by the same laws, customs and so on as "real world" behaviours.

I disagree with both parts of that. On-net behaviour is, in general, not ruled by the same laws and customs as off-net behaviour, because the latter is ill-defined. When all, or at least enough, of the parties are in the same (off-net) jursidction, then I agree, but that is so less and less often. As I put it in my on-list response, someone in Germany buys from a Japanese company through an Egyptian-hosted website paying with a US payment broker and the product ships from Brazil, and it's, um, a little less clear.

Nor do I really want it otherwise. I expect that many, perhaps even most, of my (and your, and just about everyone else's) actions on-net are illegal somewhere; why should my favourite laws be the ones that get to apply?

The real problem here is a bit like the problem I see at the core of today's intellectual property issues. In each case, the world has changed in a fairly fundamental way, but the legal system not only has not caught up but is playing head-in-the-sand, trying to pretend that its old established ways will continue to work as well as they ever have.

This is the real issue at hand. The legal notion of jursidction is based on drawing jursidctional lines geographically. This makes historical sense, because people sufficiently like-minded to share a society (and laws, which are just one particular expression of certain shared aspects of a society) historically had to aggregate geographically.

But now, long-distance communication that's almost too cheap to meter is changing that. It started with the telegraph, moved to the telephone, and now we have the Internet; until quite recently, telegrams and more recently telephone calls over long distances were expensive enough to be notably rare. (One of the pieces of good telephone manners I was taught by my parents is that when you're calling an office long distance, you say so straight off, so they can try to expedite the time you spend on the phone to keep your charges down. Today, remarking that you're calling long distance would be more likely to produce a reply like "...and?".) It's finally reached the point where true communities, in the social/psychological sense, can form without geographical proximity. This produces a need for a more flexible form of jurisdiction, one which can deal with jurisdictions which are overlapping but not nested. We don't yet have one, and the mismatch between the reality we have and the reality our legal systems evolved to deal with is making itself painfully apparent. As with most cases where there is a mismatch between the actual reality and the reality upon which a social construct is based, it will continue to make itself painfully apparent until it's fixed. And I somehow don't think the fix will be for the net to go away.

We need to fix our legal systems to handle overlapping but non-nested jurisdctions, and we need to build a legal system for the on-net jurisdiction that overlaps so now-painfully with all the geographical jurisdictions. We've made a few tentative steps towards the latter, but they won't help much until the former happens.