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All online business beware

Last week, NZ police raided the home (the media keep saying "mansion") of Kim Dotcom and arrested several people on a number of charges, including copyright infringement plus aiding and abetting copyright infringement.

Since then, many people have been asking "how can NZ police be arresting a German citizen on behalf of US authorities when he has never been US-based and operates his online business from Hong Kong?"

I think this story from Arstechnica goes a good way to explaining exactly how the US authorities can claim to have jurisdiction over the actions of a foreign citizen operating a business which is outside the USA.

However, every single individual or business who conducts activities online ought to be a little worried right now.

If the Arstechnica explanation is correct, then it would appear that virtually every individual and business with an online presence is effectively exposed to the laws of every country where that presence is accessible.

What a nightmare!

The Ars article talks about the establishment of a nexus between the site operator and the jurisdiction involved, making it clear that once such a link is alleged, foreign laws can be invoked and, if treaties are in place, extradition could be sought.

Now, given the growing number of frivolous prosecutions being taken of late, especially in respect to copyright issues (just look at the fiasco wrought by Righthaven).

Now it might be comforting to think that you can't be convicted under another country's laws unless you've actually deliberately targeted their markets - but before you get too smug, remember that you can still be extradited and prosecuted -- the burden of proving your innocence still being an expensive and onerous one.

The sad fact is that there are plenty of people and companies who think nothing of abusing the legal system to penalise their competitors -- and I can foresee some rather nasty attempts, in the wake of the MegaUpload case.

Now that they have effectively gained a precedent, you can be sure that the members of the RIAA and MPAA will be ramping up their prosecutions of off-shore sites they deem to be infringing their copyrights.

Given the inconsistencies that still exist within the copyright laws of various nations I can see plenty of scope for businesses which are operating well within the provisions of their own country's laws falling foul of US laws and being threatened or actually prosecuted from afar -- simply because US citizens "could" use the service if they chose to.

Does this mean that the only safe way to conduct online business is to firewall all traffic from outside your own jurisdiction?

Quite possibly so.

Of course the criteria for applying a foreign country's laws to your activities is that you must be actively soliciting business from, or conducting business in -- that country. This may be all well and good -- if you're not actively doing so then you're unlikely to be convicted. However, you may still be charged and prosecuted -- the threshold of proof being much lower for the laying of charges and commencement of a prosecution than for securing a conviction.

For many, many years, I have advocated for the creation of a new jurisdiction that would cover cyberspace. The current setup where each country tries to police its own little segment of the ether is ridiculous and creates ridiculous confusion/injustice.

Let's define cyberspace as a separate place and draw up some global legislation to which all countries (who want to be connected) must subscribe.

Yes, that would be a monumental task but at least it would keep the bureaucrats busy (and thus out of our hair) for quite some time.

All in favour? (US citizens excluded for legal reasons -- because I don't want to be arrested at dawn by police acting on behalf of the FBI in response to someone who dislikes what I've written)...

More thoughts from me on the MegaUpload saga.

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