An Emerging Ontology of Jurisdiction in Cyberspace

David R. Koepsell


Over the past 100 years, as international commerce has expanded, nations have grappled with ever-changing notions of legal jurisdiction. When conflicts arise in commerce, and where crimes are perpetrated across or involving borders, courts must determine the applicable laws based once upon ancient notions of legal jurisdiction. The old rule of lex loci delicti has often and increasingly been abandoned in favor of contractual notions and rules determined by treaties. Under the old rule, the place of the crime determined the applicable law. As well, where the contract was negotiated determined the applicable law of contract. As the speed and frequency of trade and travel over national borders has increased, so have the modifications that have been necessary to accommodate legal conflicts involving both. A good amount of commercial litigation involves issues of international jurisdiction. Over time and with advances in technology, it became harder to determine where a particular crime took place, or where a particular contract was negotiated.

The emergence of the new information economy has complicated jurisdictional issues in commerce and crime. Many of these difficulties are simply extensions of problems that arose due to other media. Telephones and fax machines had already complicated jurists determinations of applicable laws. Even before the Internet, contracts were often negotiated without any face-to-face contact — entirely by telephone and fax. Where is such a contract negotiated? The answer to this question is critical to any litigation that may arise over such contracts. The laws of contract are often quite different from one jurisdiction to the next.

The Internet has, of course, muddied the waters even further. The Internet has brought with it new forms of communication which make determining the loci of acts even more complicated. Where are contracts negotiated when they are negotiated in cyberspace? Business is being conducted in chat rooms, on web sites, and through e-mail. Each of these is technically distinct from telephones and fax machines. More importantly, these tools are ontologically different, in varying degrees, from traditional methods of communication. The question is, are these ontological differences sufficient to warrant new legal notions of jurisdiction in cyberspace?

Only a thorough ontological analysis of the parts of cyberspace and acts “in” it can reveal the answers to the legal questions posed by this new medium. Traditional legal analyses have relied, in part, on a crude legal ontology. That is, courts have grappled with notions of the topology and mereology of the world and legal objects when considering questions of jurisdiction. However, new methods in the ontology of legal objects, most notably Searle’s recent contributions to the field, have afforded philosophers and jurists a mostly unexplored means for resolving practical problems which have arisen. A proper examination of these problems can only be undertaken by first asking questions such as: what is a contract anyway? Where do these things exist after all? Searle’s examination of social objects opens the door for a critical examination of emerging notions of jurisdiction in cyberspace and beyond.