Definition of State Jurisdiction in the Digital Space

Yakunina Anastasiya Vladimirovna Postgraduate student of the Department of State and Administrative Law, Samara National Research University named after Academician S.P. Korolev 443086, Russia, Samara region, Samara, Moskovskoe highway, 34 yakunina@urlife.pro Other publications by this author

During its existence, the Internet has undergone a complex but rather rapid development and has become an integral element of the modern information society. If in the last century the main means of information exchange was mail, then in the modern information society the Internet is becoming the main means of communication and information exchange. And if in the early 90s only a few thousand sites were registered on the Internet, today there are more than 1.13 billion websites in the world. However, the Internet, with its enormous power and ability to process large amounts of data, offers not only an abundance of opportunities, but also creates new challenges.

One of the most discussed topics in theory and practice is the issue of determining the jurisdiction of the state in the digital space. The complexity of this problem is determined by the need to preserve the global connectivity of the Internet space while simultaneously complying with national legislation, without which it is impossible to counteract abuse on the Internet and ensure human rights ^[1].

Currently, there is a small amount of work dealing with the issues of determining the jurisdiction of the State in the digital space. This study is based on the work of such scientists as V. V. Arkhipov, R. F. Azizov and V. B. Naumov, analyzing both the general provisions of Internet regulation and its individual legal problems ^{[2, 3, 4]}.

In the theory of law, the concept of "jurisdiction" is given a predominantly territorial character. It is defined as a manifestation of the sovereignty of the State and the scope of state power within a certain territory, which ends at its border, respectively, the territorial principle is attributed to the basic principles of jurisdiction.

Thus, the exercise of State jurisdiction depends on the establishment of clear boundaries. However, actions performed on the Internet take place in the digital space, where it is not always possible to identify the person who committed a legally significant action and the territory in which it was committed ^{[5, pp. 99-101]}.

In modern world practice, an opinion is expressed on the attribution of the Internet space to neutral territories with an international regime, by analogy with the regime established on the territory of Antarctica, in outer space, in relation to celestial bodies, etc. ^[6].

Meanwhile, in our opinion, the implementation of this proposal is unlikely, since this approach is overly generalized and insufficiently complete ^[7]. With regard to neutral territories and spaces, the legal regime is established by special international agreements, respectively, we are talking mainly about public law relations, and vice versa, the Internet sphere mainly affects the interests of individuals who occupy a significant dominant position in the market and fall under the jurisdiction of various states, which often leads to conflicts of public and private interests.

Another popular point of view on solving the jurisdictional problem on the Internet is the limitation of the state's competence to national domain names ^{[8, pp. 115-122]}, i.e. the establishment of sovereignty over the national domain zone. The main argument in favor of this approach is that "the domain name system cannot be used in such a way that it can become an instrument of censorship." The most prominent proponent of this approach was John Gilmore, one of the founders of the Electronic Frontier Foundation.

In Russia, a similar provision is partially implemented in the arbitration procedural legislation (Article 247 of the APC of the Russian Federation), according to which arbitration courts consider cases involving foreign persons if the dispute arose from relations related to the state registration of domain names and other objects and the provision of services in the international association of Internet networks in the territory of the Russian Federation Federation ^[9]. It is important to note that, within the framework of the provisions set out in this article, a significant number of disputes are subject to alternative resolution procedures, these include conflicts related to domain names in top-level domains (gTLDs), as well as disputes over country code top-level domains (ccTLDs). Let's assume a case where a person, physically located on the territory of one state, uses a domain belonging to another state. In this case, the subject is consciously located in the jurisdiction of the domain name that he uses. According to A. Abdujalilov, in this case the physical location of such a person will be secondary ^[10]. A. Y. Rykov adheres to a similar position: "Due to the complexity of applying territorial criteria to online activities, the only identifying feature of a person and his territorial affiliation is the address of an Internet site certifying the connection of a particular participant in the transaction with the state where the corresponding The Internet resource has been registered."

In our opinion, this approach seems reasonable. However, there are a number of difficulties. For example, it is impossible to say with full confidence that the owner has registered the site in the domain zone of his country. In addition, there are domains that do not indicate their nationality (.biz, .com, .info, .org, etc.). In such a situation, one should be guided by the national legislation of the site owner, since it is the site that acts as a platform for the parties to enter into legal relations in the digital space, which means that it is the site thataries will be the "place" of the offense.

In Russia, as in other countries, there is a need to strengthen regulation of issues of establishing state jurisdiction in the digital space. In the period from 2019 to the present, our country is actively working in the field of regulation of Internet communications. For example, in May 2019, the law "On Amendments to the Federal Law "On Communications" and the Federal Law "On Information, Information Technologies and Information Protection", known as the "Law on the Sovereign Internet", was adopted, aimed at creating a national Internet traffic routing system. However, to date, the possible results of the implementation of the law are ambiguous, since the legislator has not developed reasonable proposals on the rules for establishing the jurisdiction of the state on the Internet. It is assumed that the new law should provide mechanisms for protection against external threats, while the legislator did not determine what should be considered an external threat, in fact leaving this issue to the discretion of the Government of the Russian Federation. We believe that such a gap in legislation is untenable, since it can lead to a situation where the state has the opportunity to arbitrarily close certain servers to users and, therefore, thereby limit the rights of its citizens to access information without a court decision.

In our opinion, such regulation of the state's Internet jurisdiction is completely unacceptable from the point of view of freedom of information and access to the Internet, since it provides an opportunity for the state to censor content on the Network and will hinder the development of Internet relations. To solve such problems, it is necessary to supplement the current legislation with norms establishing rules for the application of Russian legislation in determining jurisdiction in the Russian segment of the Internet, which will strengthen control over compliance with legislation on the Internet and greatly simplify the work of law enforcement.

Different jurisdictions have different definitions of what content and online behavior is illegal. The distribution of certain materials on the Internet is considered illegal in all jurisdictions (for example, those promoting child abuse), while attitudes towards other information may vary depending on the law and order of a particular country. When information is distributed on the Internet, access to it may be regulated by the legal norms of several States. For example, some countries believe that if an information resource is available to their citizens, then regardless of where the server is located, it must be subject to the jurisdiction of these countries ^[11].  One of the earlier and often cited cases illustrating the problem of determining the jurisdiction of the state on the web is the case of the American company Yahoo!. The case concerned a violation of French law prohibiting the sale of Nazi memorabilia, whereas the auction site Yahoo.com The site where these items were offered for purchase operates under the jurisdiction of the United States, where their turnover was and remains legal.

A technical approach was used to resolve the dispute, namely, geolocation and access filtering programs were used. Yahoo! was forced to identify users who came to the site from France and block their access to web pages showing items related to the ideology of Nazism. Later, the Yahoo! portal announced a complete ban on the sale of Nazi symbols at its online auctions.

However, we believe that in such a situation, differences between national legislative systems are inevitable. Therefore, it is important to develop a common approach to determining the jurisdiction of a state in the digital space, based on the principles and norms of international law, which will avoid uncertainty in this area, as well as strengthen trust between all participants in digital communication.

Thus, as a result of our research, we have identified three main approaches to understanding the jurisdiction of the state in the Internet space:

• The first approach is based on the principle of "territorial sovereignty", according to which each country has exclusive rights to its territory and is responsible for regulating activities carried out within its physical borders ^[12].

• The second approach, called multistakeholderism ^{[13, pp. 8-9]}, implies the participation of all stakeholders in building relationships in the digital environment and strives for a global regulatory regime that will be established at the international level in accordance with an agreement between the governments of all states (acting on their own behalf or represented within the framework of intergovernmental organizations), private corporations (representing telecommunications and other market segments), as well as civil society representing the interests of users ^[14].

• The third approach is the so-called jurisdictional autonomy, based on the ideas of private self-regulation of technology companies and influential media by creating their own rules and regulations. Of course, tech giants currently play a role in regulating relations related to the use of the Internet, on an equal basis with state governments, for example, setting standards for what users can post on social networks. However, the companies themselves are not interested in solving more serious problems related, for example, to the data economy. The interests of influential media and technology companies are not in fair and democratic regulation, but in making a profit ^[15]. An example of this is the recent copyright dispute between Google and the Australian government, which requires the company to pay for news content that it reuses on its platforms.

To date, all three levels of Internet regulation are used, since due to the specifics of the network, none of these approaches is independent, sufficient or the only possible one – they are all interconnected and interdependent to a sufficiently high degree ^{[16, pp. 1032-1034]}. In our opinion, over time, this will allow us to create a more flexible and effective system for regulating the digital space, since it combines the interests of all stakeholders.

Currently, the Internet is not only a means of cross-border mass communication, which is vital for a person, but also a source of challenges to the sovereignty of the state. Individual States seek to strengthen their authority in the digital environment by trying to manipulate the network to promote their interests through legal restrictions and prohibitions. Nevertheless, the Internet remains dynamic, constantly developing and improving the means of anonymization in order to overcome legal restrictions that many network users perceive as unjustified.

The high dynamism of the Internet became evident during the events in Belarus in August 2020. Against the background of protests caused by disagreement with the official results of the presidential elections, the Belarusian authorities have made an unprecedented attempt to completely block Internet access in the country, including by introducing technical traffic speed limits. Despite the efforts made, the opposition channels in Telegram continued their activities. The platform independently took measures to hide its activity, using modern software and changing the IP addresses of users, including using new addresses from cloud services.

Thus, the events in Belarus have once again confirmed that the Internet is a "supranational" network, which is a means of mass communication and capable of striking at the sovereignty of the state in its traditional sense.

In this context, it is not surprising that a variety of services, providers and other organizations involved in Internet communications will lead a political struggle within states, while having all the necessary communication resources. Therefore, Governments should modify the traditional management model, since any attempts to fully control the flow of electronic information across physical borders are likely to be unsuccessful and will lead to even greater resistance from society and the business sector.

We believe that the effectiveness of solutions depends on coordinated actions. It is important to intensify dialogue between all stakeholders, paying special attention to problems related to Internet regulation, in order to develop effective tools for their resolution.

In order to promote more equitable and equitable global Internet governance and build a society with a common future in cyberspace, the international community should, in the common interests of humanity, respect and determine the jurisdiction of the State in cyberspace in accordance with the principle of equal access and strive to find common ground, leaving aside differences. In this regard, the task arises of developing principles and methods of state regulation of digital technologies that will allow us to find a balance between public and private security, the effectiveness of public administration and at the same time ensure the protection of digital rights of citizens.