In response to my initial post on Hageseth v. Superior Court, my co-blogger David P. writes:

  The court is probably correct that the "traditionally applicable legal principles" permit it to assert jurisdiction over the defendant; the harder question is whether those "traditionally applicable legal principles" become utter nonsense in a networked world.
  The "traditionally applicable legal principle" here is what the court calls the "detrimental effects theory" of extraterritorial jurisdiction: if your actions outside the jurisdiction have harmful effects inside the jurisdiction, you're subject to the jurisdiction's criminal laws.
  This principle, I submit, doesn't make sense in a world in which the "effects' of all actions are felt instantaneously everywhere on the network; applying that principle leads to the conclusion that everyone is subject to everybody's criminal jurisdiction simultaneously, and I don't think that is a sensible conclusion for a global legal system.

  I disagree. In my view, the "traditionally applicable legal principle" here isn't the "detrimental effects theory," but rather an argument Hageseth did not make: the dormant commerce clause.

  Existing dormant commerce clause doctrine largely traces David's policy concerns, as it looks at the effect of one state's regulation on other states and considers the need for a single consistent regulatory scheme. If a state statute that regulates computer usage is read to have such broad extraterritorial scope, it may be invalided on dormant commerce clause grounds. See, e.g., American Libraries Ass'n. v. Pataki, 969 F.Supp. 160 (S.D.N.Y.1997). Notably, several defendants in Californian state computer crime cases have used such arguments. Examples testing the extraterritorial scope of California state Internet luring statutes include People v. Hsu, 82 Cal. App.4th 976 (Cal. App. 2000) and Hatch v. Superior Court, 94 Cal. Rptr. 2d 453 (Cal. Ct. App. 2000).

  In my view, the real issue in Hageseth isn't whether traditional legal principles become "utter nonsense" when applied to conduct "in cyberspace." The issue is identifying the right traditional legal principle, which in this case is the dormant commerce clause. My sense is that this body of law applies quite sensibly to online conduct just as it does to offline conduct.