The Volokh Conspiracy -

[Orin Kerr, May 21, 2007 at 8:57pm] Trackbacks

Hageseth v. Superior Court: Interesting line from a California state court criminal law decision handed down today: "it makes no difference that the charged conduct took place in cyberspace rather than real space."

  The case, Hageseth v. Superior Court, involved a Colorado doctor who participated in an online pharmacy. The doctor, Hageseth, issued an online prescription to a patient in California, and was then charged criminally with practicing medicine without a license in California. Hageseth claimed that he couldn't be charged with a California crime because he was beyond California's jurisdiction, bolstered at least in part by what looks like a dormant-commerce-clause-argument-in-disguise: specifically, that it would create all sorts of trouble for California to try to regulate such conduct beyond its borders.

  The court disagreed, finding that under traditional principles of extraterritorial application of criminal law the state of California could reach the doctor's conduct. The fact that the doctor's conduct took place "in cyberspace" -- that is, using e-mail and websites -- was irrelevant. Next time maybe the defendant should argue that if you commit a crime in cyberspace rather than real space, you only have to go to cyber jail instead of real jail.

  Thanks to Tom Watson for the link.

Related Posts (on one page):

Cyberspace Jurisdiction and the Dormant Commerce Clause:
Jurisdiction in Cyberspace; A Different View
Hageseth v. Superior Court:

Comments

[David Post, May 22, 2007 at 8:49am] Trackbacks

Jurisdiction in Cyberspace; A Different View

Orin has already blogged this, but it's worth another look.
The defendant, located in Colorado, issued an online prescription to a patient in California. He never actually communicated directly with the patient; the patient had filled out an online questionnaire distributed at a website physically located outside of the US; the website was owned and operated by a Florida corporation, which forwarded the questionnaire to the defendant, and to whom the defendant directed his response; the Florida company then sent to a pharmacy in Louisiana, which shipped out the medication to the California patient.

The defendant was then charged, in California, with "practicing medicine without a license . . . in San Mateo County, California" (where the patient was location and where the medicine was shipped). The defendant argued that California could not exercise jurisdiction over him, or charge him with practicing medicine "in California," because he had never set foot in California, he had no agents acting on his behalf in California, and he had not communicated directly with anyone in California.

The court disagreed:

"Territorial jurisdiction to prosecute lies under the traditionally applicable legal principles, and it makes no difference that the charged conduct took place in cyberspace rather than real space."

Orin, I take it, agrees; he thinks this is a reasonable -- perhaps even an obvious -- resolution. "Next time," he writes, tongue presumably in cheek, "maybe the defendant should argue that if you commit a crime in cyberspace rather than real space, you only have to go to cyber jail instead of real jail."

Well, I'm not so sure it's so reasonable. There's a very deep problem here, and it won't go away just by saying "it makes no difference that the charged conduct took place in cyberspace." Here's the issue, in a nutshell. 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. Orin, I take it, will have no objections when the State of Slobovia, which has very strict rules about the unauthorized practice of law, declares him to be criminally liable for violating those rules in his postings here on the Volokh Conspiracy -- but I'll defend him in that proceeding, nonetheless.

Related Posts (on one page):

Cyberspace Jurisdiction and the Dormant Commerce Clause:
Jurisdiction in Cyberspace; A Different View
Hageseth v. Superior Court:

Comments

[Orin Kerr, May 22, 2007 at 3:06pm] Trackbacks

Cyberspace Jurisdiction and the Dormant Commerce Clause: 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.