Does a particular sovereign have authority to enforce its laws against an individual or entity that commits a crime in cyberspace that effects the sovereign’s citizens? This is a recurring question involving cyber-based crimes. Cyber invasions, hacking, ransomware attacks, organized identity theft, trafficking in a vast array of illicit items, including stolen property, personal data, scientific secret information, and the laundering of e-currency, to name a few, may be done through individuals or organized entities operating covertly in cyberspace.1 Such activity may operate globally, and poses a distinct evil by reason of the Internet’s unique capacity to conceal individuals, entities and transactions involved in illicit conduct, combined with the potential that critical evidence may at any time before it is secured by the sovereign turn evanescent. Moreover, cyber crime presents an additional hurdle inherent in cyberspacepotential conflicts in jurisdiction and evidentiary rules. These conflicts naturally pose certain challenges for the practitioner engaged in litigation involving such illicit cyber conduct, which this article will address.
Conflicts in the Cyber Crime Arena
The framers of the U.S. Constitution settled potential conflicts in jurisdiction between the states and the federal government by the inclusion of the "supremacy clause," establishing that federal law is "the supreme law of the land, and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the Contrary notwithstanding."2 Accordingly, conflicts among the states may be more frequent in the cyber crime arena. The question of what state has the most appropriate territorial jurisdiction or what county of it has the most appropriate geographical jurisdiction, otherwise known as venue, tends to arise when the criminal is cyber-based, and ignores state or county borders.
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