MICHAEL GEIST
Thursday, June 28, 2001
The development of cyberlaw has long been shaped by the belief that the Internet is borderless. Many observers argue that without borders, the Internet is impervious to the real-space laws that govern traditional geographic boundaries.
Courts have generally accepted this vision of the Internet, as shown by their reluctance to even consider the possibility that geographic distinctions might be possible on-line. In "American Library Association v. Pataki," for example, a 1997 U.S. case challenging a New York state law that sought to regulate obscene content found on-line, the court argued that "the Internet is wholly insensitive to geographic distinctions. In almost every case, users of the Internet neither know nor care about the physical location of the Internet resources they access."
Although the court's view of the Internet may have been correct at the time, the Internet is not static. Providers of Internet content are increasingly concerned about the physical location of Web resources and the people that access them, as are legislators and courts that may want to impose real-space limitations on the on-line environment.
Several firms, including Quova, Digital Envoy and NetGeo, have responded to those concerns by developing technologies allowing businesses to target their on-line presence to particular geographic areas, thereby reducing legal risks. These technologies also serve the interests of governments and regulators that would be able to apply off-line rules to the on-line environment.
In the business world, Canada's JumpTV has garnered considerable publicity from its plans to use geographic identification technology to limit its Internet retransmission of TV signals to Canadians.
Geographic identification technologies also have the potential to revolutionize on-line advertising. Rather than creating sites that target a local audience in order to attract local advertisers, national and global Web sites may now use geographic identification technology to guarantee advertisers that their ads will only be displayed to a local audience. Accordingly, a Toronto-based restaurant that advertises on-line will be able to reach its local target market, whether it advertises with a Toronto site or one based in Texas.
Governments and policy makers are also determining how these technologies might play a role in future Internet lawmaking. For example, a recent Canadian government consultation paper on changes to the Copyright Act contemplates forcing Internet retransmitters to limit their signals to Canadians. This suggests that policy makers feel more comfortable placing geographic limitations on on-line activity, since they appear confident that the technology will allow for effective compliance.
At the international level, the Hague Conference on Private International Law's Draft Convention on Jurisdiction and Foreign Judgments -- which has run into opposition from business and consumer groups -- is considering inserting new provisions related to on-line targeting of e-commerce. Although there are several methods of targeting e-commerce activities, technological measures are likely to emerge as a favoured approach.
While critics often point to the inaccuracy of geographic identification technologies, few users actually require perfection. Businesses want either to target their messages to consumers in specific jurisdictions, or to engage in "jurisdictional avoidance" by excluding those visitors who cannot be verified as residing in the desired jurisdiction. Regulators, meanwhile, want to develop effective and reasonable standards for asserting jurisdiction over on-line activity.
Since both business and government have a vested interest in bringing geographic borders to the on-line environment, it should come as little surprise that these technologies have appeared so suddenly. In fact, they have become available before the Internet community has had the chance to discuss the benefits, challenges, and consequences of creating e-borders -- or "zoning" the Net -- with these new technologies.
With the technology improving rapidly, it's time for the Internet legal community to address the fallout from a Web that's very different from the one to which we've grown accustomed. For better or worse, the Internet is becoming bordered.
Michael Geist is a law professor at the University of Ottawa Law School and director of e-commerce law at the law firm Goodmans LLP. His Web site is http://www.lawbytes.com.
mgeist@uottawa.ca
