EMERGING

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<strong>EMERGING</strong> MARKETS: A Review of Business and Legal Issues technology casts doubt on the whole system of international law with its geographical territoriality doctrine. For instance, a criminal being geographically situated in China or Russian Federation can perpetrate a bank system in the U.S., or break the computer network in France and send viruses to its users, or place information that contain child pornography on the website that geographically is situated in Spain (let us also take into account that this site can be accessed by the indefinite number of Internet user from different countries of the world). In these examples that routinely take place in the virtual environment cybercriminals possessing certain practical skill can perpetrate targets in other countries not even leaving their homes. The offender and actual targets are separated by great distances, and the only connection between them is the network that binds its users. So what should be considered the place of perpetration of the cybercrime or, in other words, how can we define its territorial element? In general theory of Criminal Law a place of perpetration is understood as an objective category that represents a basis for application of territorial jurisdiction of the state. The last relies on the territorial supremacy of the state, which lies in its sole right to exercise jurisdiction, including criminal jurisdiction, over its territory, if other is not provided in the norms of International Law or in its international agreements. By general rule the place of perpetration is defined as the territory where harmful activity took place and where harmful consequences happened, or where accessories to a crime acted 1 . With regard to cybercrimes, harmful actions and results frequently take place at the very least in two countries, which will have an equal right to prosecute an illegal conduct (for example, a criminal cracks a server in another country and steals personal information of its users) 2 . But it seems almost impossible to identify a geographical place of perpetration in cases of computer viruses’ distribution 3 or 1 Blum M.I. Effect of Soviet Criminal Law in Space. – Riga, 1974. – P. 133. 2 In these fairly straight forwarded cases we do not take into account that a criminal might use Internet servers that are geographically situated in the third countries for committing a crime. 3 For instance in 2000 notorious virus “ILOVEYOU” cloaked itself with an e-mail message and once opened rapidly spread worldwide, causing billions of dollars in damage and halting corporate networks. Causing damage to computer information of the victim it redirected Microsoft Internet Explorer surfers to a predetermined website where a separate program scanned the victim’s computer for passwords and log-in names. After this the virus sent a copy of itself to every name in the user’s address book, overloading computer Page 86 Volume 1, April 2009
<strong>EMERGING</strong> MARKETS: A Review of Business and Legal Issues in placing child pornography on the Internet server which is accessible from almost any country of the world. Foresaid examples prove that development of such technologies as Internet change traditional understanding of territory and space. Internet binds computers of all its users in the integrated network that goes beyond conception of geographical borders. Erin L. Anselmo outlines that interrelation between addresses of Internet sights place an additional complexities in conception of territory in Internet. Due to the cross-references of Internet sights their division is conditional. Internet addresses are non-material, and even their URL indicators of the state (“.ua”, “.ru”, “.pl”) should not necessarily be exact 1 . This means that there is no strict relation between Internet addresses and their real geographical position. Addresses may stay invariable, at the time when servers may change their geographical location. So Internet as well as cybercrimes committed in Internet can’t be viewed in the notions of traditional conception of territory and space. It represents a separate virtual space that exists beyond a physical world, and therefore is often referred as cyberspace. 3. Criminal jurisdiction and international norms concerning computer crimes’ prosecution. Extraterritorial nature of Internet places a number of obstacles on effective control over cybercrime threats and creates conflicts of criminal jurisdictions. Cybercrimes hardly fit in to the conception of traditional principles of jurisdiction under International Law 2 , though international agreements concerning transnational crimes and practice of national courts still hold old formulas. systems worldwide. See: Shannon C. Sprinkel. Global Internet Regulation: The Residual Effects Of The "ILOVEYOU" Computer Virus And The Draft Convention On Cyber-Crime. 25 Suffolk Transnat'l L. Rev. 491, p. 493 (2002). 1 Erin L. Anselmo. Cyberspace in international legislature: Is territorial principle in International Law denied by the development of Internet? – Economic Strategies, 2006, №2. / http://www.inesnet.ru/magazine/mag_archive/free/2006_02/anselmo.htm 2 Present system of international law is based on five theories of criminal jurisdiction identified in Harvard Research on International Law, 1935: territorial; protective; nationality; universal; and passive personality. See: Harvard Research in International Law, Jurisdiction with Respect to Crime, 29 AM. J. INT'L L. 474 (1935). Page 87 Volume 1, April 2009
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EMERGING

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