The Internet has been one of the biggest technological advancements in the world. It has helped connect people internationally via social media websites, such as Facebook, My Space, and Linked In. The Internet has also made things easier for businesses and has allowed the dissemination of many types of information to people all over the world. Unfortunately, the Internet has also been abused and used to exploit people, in terms of cybercrimes. While laws exist regarding many of these crimes, these criminal actions can often be difficult to prosecute, due to jurisdiction issues that are not so easily delineated and outlined.
According to Bendiek (2014, p.7), who explains the prosecution of cybercrime, “The technical and legal uncertainty surrounding these questions are why traditional boundaries are now blurred, because now it is not always possible to determine where the hardware and software of information and communications technology is located within national borders.”
However, it is easier to prosecute cybercrimes that are committed within the United States than outside of it. This is referred to as executive jurisdiction, which is defined as the legal power of one state to engage in actions inside the territory of a different state. While this type of jurisdiction still requires all states involved to acknowledge by law the actions of jurisdiction that are engaged in by another state, these cybercrimes are easier to prosecute than borderless crimes that do easily fall into certain jurisdictions. Locating the ISP address and physical location of a foreigner is a challenge .
Many crimes are committed on the Internet when two or more individuals from two different countries engage in communications. This is often the case with child pornography. One party is usually transferring or uploading files to another person. Once the transfer of files occurs between the two parties, this is where the action becomes a crime. A major factor in Internet crime is being able to show that the crime has an influence on interstate or international commerce in some way. In the case of child pornography, if money is involved or pictures or videos are sold, this makes it easier to prosecute the crime, as interstate or foreign commerce being affected is easier to prove. In addition to this, the individual who is being charged with a crime, the perpetrator must also have enough evidence against him or her to show that the accused used the Internet in relation to the crime. The geographic location of the computer must also be proven. What often happens is that law enforcement obtains a search warrant for the accused’ address, the accused’ computer seized by the government for the purpose of finding evidence of the crime, such as child pornography files and evidence of electronic communications between all parties involved (Eltringham, 2015).
Extraterritoriality is an issue involving jurisdiction that makes things harder. It is defined as being exempt from the laws of a nation. However, since the Patriot Act was created, denying extraterritoriality has been easier. Segments of the Patriot Act were changed, the changes stating that any individual who lives outside of United States that takes parts in an act that was committed inside the jurisdiction of America can be jailed, fined, and forced to pay penalties if the action “involves an access device issued, owned, managed, or controlled by a financial institution, account issuer, credit card system member, or other entity within the jurisdiction of the United States” (Eltringham, 2015, p. 115) and “the person transports, delivers, conveys, transfers to or through, or otherwise stores, secrets, or holds within the jurisdiction of the United States, any article used to assist in the commission of the offense or the proceeds of such offense or property derived therefrom” .
As stated in this paper, jurisdiction in relation to Internet regulation has been an issue that has been hard to rectify. Cybercrimes are difficult to prosecute, due to the fact that one must prove that interstate and foreign commerce are being affected. Extraterritoriality is another factor that is connected to jurisdiction and the Internet, some foreign individuals not bound by the laws in a certain nation. Child pornography is a crime that has received much focus, the burden of proof also focusing on interstate and foreign commerce, as well as proving the geographic location of the computer. However laws such as the Patriot Act have made jurisdiction and internet regulation issues easier to handle, the burden of proof easier and prosecuting these internet crimes more likely to take place to create a safer nation for its citizens.
- Bendiek, A. (2014). Tests of partnership. SWP Research Paper 5. Berlin, Germany: German Institute.
- Eltringham, S. (2015). Prosecuting computer crimes . Washington D.C.: Office of Legal Education Executive Office for United States Attorneys .
- Jones, D. (2014). Should there be a new body of law for cyber space? Twenty Second European Conference on Information Systems, (pp. 1-7). Tel Aviv .