Internet jurisdiction revisited

Imagine that you are employed by Twitter, and decide to go to Thailand for your vacations. You are really looking forward to your trip, so you obviously tweet about it in advance. When leaving, you engage in typical Twitter banter about delayed flights, airport lounges and the indignities of modern travel. Your last tweet says “Plane about to take off”. You arrive in Bangkok only to find that there are police waiting for you at the gate, so you are arrested because Twitter has allowed the publication of insults against the Thai monarch in breach of its notoriously harsh lèse majesté laws. “This is unfair!” you shout, “There is no such law in my country!” Twitter responds, the Internet erupts with sympathy. But that does not make you less in jail. At least you may try to convince your fellow inmates to re-enact Thriller, just like in that hilarious Philippines jail video

Scenarios such as the above may be fanciful, (or not, if you’re talking about “destroying America”), but something like that must have been crossing Twitter’s executives minds when they made the announcement that they would be opening the door to removing tweets at a national level. Twitter has now created a more nuanced approach to censorship to comply with national laws. Much rage has followed the announcement, and two clear camps appear to be forming on this.

Personally I believe that the policy is the best possible solution for a global company, as the subject of Internet jurisdiction can no longer be ignored. And yes, this is a matter of jurisdiction, there may be other considerations, but the bottom line is whether a company’s executives or employees can be jailed or sued for something that has been put on their website. Unfortunately, the answer appears to be yes.

When thinking about Internet jurisdiction, you have to ask where things happen online. For example, now I am writing this in Costa Rica, whenever I hit the Publish button the bits will be stored in a server in Canada (looks like Toronto from the latest traceroute), the domain is registered by a company operating in the UK, the U.S. and Canada. The blog is accessible everywhere. Let us say that I post something defamatory (you never know, llamas can be easily offended). Would I be liable everywhere that this is read? Every instinct tells us that it should not be, but courts are increasingly in favour of trying to exercise jurisdiction if something is available in their countries. So if this post is available in Brazil and I post something that breaks some obscure law there, in theory I could be sued there. Of course, this rarely happens. We operate every day assuming that we will not be sued in exotic locations for any blog post or tweet that we publish, and for the most part, this is a rational exercise in risk assessment for individuals and small and medium enterprises.

But if you are a large Internet company with millions of daily visitors and a global reach, then your outlook to jurisdiction should be considerably more conservative. It is easy to criticise companies for making such decisions, but we are increasingly faced with a struggle between the digital and the physical, and any illusions that the Internet is a special place that cannot be regulated should have been buried long ago. If anyone harboured any hope that there is a new place called the Internet, the Megaupload arrests should have put an end to that. Moreover, we might see a precedent set whereby countries might try to claim jurisdiction based on hosting. With the rise of cloud computing, this will be an important question in the future. Will using a U.S. based cloud service make you liable in the United States? This is a question that is seldom asked, and I think that the answer is yes. At least, American courts might try to use cloud hosting as an excuse to exert jurisdiction.

The next couple of years should see a re-assessment of jurisdiction. Already the Internet is not the open environment that it was, it is being broken up and filtered along IP address borders. While these can be circumvented by the techno-elites, this is not the same of the vast majority of people. Ask any random person you meet if they know what TOR is, and they will answer you with a blank stare at best.

So for now I am willing to cut Twitter some slack and see where their new policy takes us. As far as I can tell, it is the best of a bad situation.

I just need to figure out if Lolcats are illegal somewhere.

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