WWW.Wildwest.Gov: The Impact of the Internet on State Power to Enforce the Law

The monumental expansion of the Internet1 over the past ten years has revolutionized the mainstream means of communications and interpersonal relations throughout the world. Through this global network of interconnected computers, all manner of data, communications, commerce, and imagery-from the most obscure scintilla of trivia, to the darkest manifestation of evil, to the most sublime works of art, literature, and science-are suddenly and immediately accessible everywhere, to everyone, all at once. In terms of the human ability to interact globally and instantaneously, this is a whole new world.2 For those charged with enforcing state law, whether civil or criminal, this new world of cyberspace has sometimes been compared to the "wild, wild west" without a sheriff.3 The metaphor is apt in the sense that, like the American frontier, the expanse of the Internet is immense and the reach of law enforcement in cyberspace is uncertain. This article will explore several significant ways in which the advent of the World Wide Web and the mainstreaming of the Internet have impacted the ability of the states to carry out their obligations to protect their citizens by enforcing their laws. In particular, this article will address three areas in which the states' law enforcement function faces new challenges as a result of the increasing use of the Internet by society. First, by greatly increasing the ease by which a state's consumers may interact with out-of-state residents in commercial and personal transactions, the Internet increases the likelihood that states will need to bring civil enforcement actions against nonresidents. Bringing civil actions against nonresidents raises issues of in personam jurisdiction. Consequently, the first, and most extensive, topic that will be discussed is the impact of the Internet on a state's ability to exercise personal jurisdiction over nonresidents in civil enforcement actions. Part I will review the Supreme Court's jurisprudence on personal jurisdiction, discuss the federal and state cases which have addressed personal jurisdiction in the context of the Internet, and suggest that the impact of the Internet on society will eventually cause some loosening of the standards necessary to establish personal jurisdiction.4 Second, the Internet also offers criminals a huge and easy-toreach pool of potential victims; so state law enforcement authorities will increasingly need to respond to cybercrimes that are perpetrated and located outside the boundaries of territorial jurisdiction. To respond to these crimes, state prosecutors will either need to pursue cases against out-of-state residents or secure the assistance of sister states in prosecuting the offenders. Part II of the article will consider some of the case law relating to criminal prosecutions involving extraterritorial conduct and will apply the rules of these cases in the context of Internet-related crimes. Third, in addition to presenting challenges to state law enforcement in the context of both civil and criminal jurisdiction, the Internet also creates new investigative challenges for state authorities. For example, the Internet can offer wrongdoers a veil of anonymity due to difficulties in tracing the source of electronic connections. Moreover, the architecture of the Internet permits Internet Service Providers ("ISPs") to provide services and store electronic data for persons located anywhere in the world. To conduct investigations in this environment, state investigators need to gather electronic evidence located in other jurisdictions. Thus, Part III will discuss a state's authority to pursue transborder investigations, identify the problems faced by states in this area, and suggest several solutions. In each of these three categories, this article will suggest a number of proposals to enhance the state's ability to continue its traditional role of protecting its citizens in the online world. I. …