Exercise of jurisdiction by a country/court is generally confined to its own territorial limits. However, in the modern times when information and communication technology (ICT) is involved, the traditional jurisdiction rules do not apply. To meet the needs of such situations, courts have developed the concept of long arm jurisdiction where the courts exercise the jurisdiction even when the subject matter of dispute or accused resides in another country.
To invoke such long arm jurisdictions, courts have to establish a nexus between the culpable act of the accused and its adverse effect in the jurisdiction of the court exercising such power. Further, extradition, mutual legal assistance treaty (MLAT)
and conflict of laws in cyberspace
also assume significance in such circumstances.
However, exercise of such long arm jurisdiction is not always legal and constitutional. This is the reason why we must stress upon civil liberties protection in cyberspace
without which such intrusive jurisdictional acts can be catastrophic. Take the example of the recent expansion
of the Rule 41 of the Federal Rules of Criminal Procedure by US Supreme Court. While the Department of Justice of US is trying to pass the amendment as a simple modification yet its ramifications
are global in nature. The least impact of exercising of such long arm jurisdiction would be violation of civil liberties and cyber laws of different countries.
This is a situation where even the self defence
would not sufficient and nations and individuals would try their hands upon aggressive defence
. There would be a sudden change from the defensive cyber security strategy to an offensive cyber security strategy
around the world. The limits
to legitimate exercise of self defence would ceases to exist. In the absence of international cyber law treaty
and international cyber security treaty
(PDF), this limit has to be judged and guided by the principle of private international law.
See International Legal Issues Of Cyber Security