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Jurisdiction In Cyberspace

Mahima Kaul

By Anupam Chander
Yale University Press, London, 2013, pp. 296, $30.00


The argument for an electronic silk road, promoting free trade and by extension, harmonious global values and laws, is an inherently appealing idea to all digital natives used to an ‘open web’ ex­perience. Anupam Chander himself a prod­uct of parents who migrated from India to the US in search of a better life, expertly lays bare the changes in global trade patterns— and the resulting complications—in his book The Electronic Silk Road: How the Web Binds the World Together in Commerce, released in 2014 in South Asia. Aside from the easy nar­rative exploring complicated developments, Chander’s book is especially pertinent for an Indian audience, looking to profit off this free trade, often without reading the fine print. The promise of Trade 2.0 is enormous, begins Chander, but he quickly delves into the real world complications that arise out of these new exchanges. Unlike with goods trade, where a well-defined port of entry and exit serves as points for regulation and new jurisdictions, digital exchanges of services, prove to be far trickier. He raises a metaphysi­cal question: where does an event in cyberspace occur? Simply put, whose juris­diction extends to these digital transac­tions—the region where the company pro­viding the services is registered, or the re­gion where these services are consumed? The real-life examples of the ‘pirates of cyberspace’ are easier understood—the gam­bling sites operating out of Antigua where it is legal were sorely contested in the USA, where, for the most part, it is illegal. The case went to the WTO where the gambling sites argued that they were simply provid­ing entertainment services while the US ar­gued that this sort of activity would promote fraud, money laundering and underage gam­bling. The WTO sided with the US. An­other case, familiar to most young people, is of the file-sharing site, The Pirate Bay, that is under constant legal threat from copyright holders because of the ‘illegal’ downloading of materials that includes movies and music. The founders have even been convicted of copyright infringement under Swedish law, and have since moved their domain name from .org to the Swedish address .se to avoid the risk of seizure of their domain name by the US authorities. This move too, speaks to the parallel ju­risdictions that exist in cyberspace, compli­cating its ‘free flow.’ In fact, the domain name system ...

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