[x-pubpol] Explainer: How can the US seize a "Hong Kong site" like Megaupload?

[Joly MacFie]

http://arstechnica.com/tech-policy/news/2012/01/explainer-how-can-the-us-seize-a-hong-kong-site-like-megaupload.ars



 Why would Megaupload, based in Hong Kong, be subject to US copyright laws
and to the Digital Millenium Copyright Act?

"Because events on the Net occur everywhere but nowhere in particular,"
wrote law professors David Johnson and David Post in a 1996 *Stanford Law
Review* article, "no physical jurisdiction has a more compelling claim than
any other to subject these events exclusively to its laws." The flip side
was that *every* jurisdiction might make a claim—after all, Internet
publishing is "borderless," right?

But there were some principles useful for thinking through questions of
jurisdiction. For instance: where did the actual harm occur? As law
professor Jack Goldsmith countered in another well-known law review article
from the time ("Against Cyberanarchy"), Internet issues aren't unique from
traditional international harms. "Both involve people in real space in one
territorial jurisdiction transacting with people in real space in another
territorial jurisdiction in a way that sometimes causes real-world harms,"
he wrote. "In both contexts, the state in which the harms are suffered has
a legitimate interest in regulating the activity that produces the harms."

Surely there must be limits, though. It would be absurd for some resident
of Australia to build a perfectly legal site for other Australians but to
be arrested and extradited to the US for violating US law. But it's not so
absurd once a "nexus" has been established between our mythical Australian
and the US. Say the site advertises in the US, or accepts payments in US
dollars, or splashes a big banner on its front page saying, "Welcome,
Yanks!" All are evidence of a US "nexus" that goes beyond incidental and
unintentional contact, and all might weigh against the Australian's plea
that the US has no jurisdiction over his actions.
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