Daniel E. Troy and David J. Goldstone*
Is a World Wide Web on the Internet like a television broadcast
station or is it more akin to ordinary mail? This seemingly abstract
question is critical to resolving whether those involved with a
Web site that physically exists outside of the United States, but
which transmits messages that violate U.S. criminal law, can be
prosecuted here for their "crimes."
Thanks to the First Amendment, there are not many messages to which
U.S. criminal laws apply. Even the few laws that do exist should,
in general, not be applied extraterritorially to accommodate First
Amendment interests. But there are at least some messages that may
be prohibited in the United States yet are lawful in the country
in which the speaker -- i.e., the Web site -- is located.
These may include a foreign Web site containing advertisements
about the use of drugs for a purpose not approved by the FDA, as
well as other forms of prohibited advertising; representations concerning
securities that may be for sale in the United States; and material
considered obscene. Violations of laws criminalizing these kings
of speech can carry massive fines and long prison sentences.(1)
Pending a decision by the U.S. Supreme Court on the constitutionality
of the Communications Decency Act, enforcement against a foreign
Web site containing "patently offensive" depictions of
"sexual or excretory activities or organs" as measured
by "contemporary community standards" is enjoined.(2)
Even if a U.S. company were not itself directly responsible for
maintaining an offending Web site, it nonetheless should be concerned
about its extraterritorial liability for the activities of its licensees
and affiliates abroad under the doctrines of aiding and abetting
There is no general constitutional bar to the extraterritorial
application of U.S. laws. Courts look to congressional intent, express
or implied, to determine whether a given statute should have extraterritorial
application. In construing such intent, however, courts consider
whether the application of U.S. criminal law to an act taking place
abroad is "unreasonable."(3) The Restatement (3d) of Foreign
Relations of the United States lists a number of factors that address
when such an exercise of jurisdiction is unreasonable.(4)
This multifactor analysis is worrisome because it provides little
warning to those acting abroad as to whether the United States will
seek to apply its law extraterritorially. Even the most important
of these factors -- whether an activity has or is intended to have
"substantial, direct and foreseeable effect" in the United
States -- cannot be applied mechanically.
In analyzing whether it is unreasonable to apply U.S. criminal
laws to speech emanating from a Web site based in, for example,
France or Thailand, a court might try to draw analogies from more
familiar communications media. For instance, just as a person can
receive a French broadcast only with special equipment such as a
short-wave radio, a person can access a French Web site only via
an Internet-connected computer.
The U.S. government would not, however, prosecute a Howard Stern-type
radio personality broadcasting were in English. After all, a French
broadcaster almost certainly does not intend its programs to have
substantial, direct and foreseeable effect in the United States.
The broadcaster's signals probably reach few, if any; receivers
in the United States, and its activities are regulated by French
Under this view, it might similarly be thought inappropriate to
prosecute the operator of a French Web site for transmitting indecent
material outlawed under U.S. law, unless it were specifically directed
at the United States.
By contrast, the federal government might well prosecute an individual
in Thailand who mailed obscene material to a minor in the United
States.(5) Such a person, because he is transmitting his material
to a specific, known address, can be accused of intending his or
here pornography to be received in the United States.
Determining whether a foreign Web site is more like a far-away
broadcast station or more like mail requires some understanding
about the way a Web site functions. In response to a user's request,
a Web site responds by downloading data, in chunks, back to the
requesting party at a particular IP, or Internet Protocol, address,
where those chunks are reassembled.
There is, however, no reliable means for a Web site to know in
which country the recipient of its data is located. Moreover, even
if the physical location of that Internet host -- the service through
which an individual accesses the Internet -- were known, the recipient
of the message could be connecting to that host from anywhere in
The interactions on the World Wide Web are not like broadcast transmission,
mail, phone calls or any other technology criminal law has ever
addressed. Nonetheless, a Web site's transmission of data to a particular
address may suggest that it is more like a sender of mail than a
broadcaster. If so, the foreign Web site that is characterized as
transmitting unlawful material directly to a site in the United
States may be considered to be violating U.S. law, and may be subjected
to the extraterritorial application of the U.S. criminal laws.
Government officials on both the state and federal levels, including
the Federal Trade Commission, the Securities Exchange Commission,
the Secret Service and state attorneys general, already have manifested
an intention to police the Internet. Most prominently, Minnesota
Attorney General Hubert Humphrey II in 1995 brought consumer fraud
charges against six online operations, none of which was located
There is, at least in theory, a way in which those maintaining
Web sites abroad can protect themselves. Registration of many Internet
addresses are maintained by industry entities. IP addresses are
organized, in part, on geographic location. A Web site can be programmed
to check these features of a requesting party's IP address before
replying. Because there is no absolutely reliable way to know where
the recipient of data is located, however, the effectiveness of
this approach is an open question.
To the extent the source of the request is ascertainable, prosecutors
seeking to assert jurisdiction over foreign Web sites may argue
that entities maintaining those sites must "block" unlawful
transmissions to the United States. Failure to do so could be viewed
as intending to have a substantial effect in the United States.
This argument would be buttressed by the fact that Americans dominate
Foreign entities who know that they are maintaining Web sites with
material that may violate U.S. law would be wise to consider trying
to implement such a blocking mechanism. Other, less effective measures
that also might be considered are blocking out access by leading
Internet providers in the United States, such as America Online.
The use by a foreign entity of such a purposeful mechanism should
immunize that entity from U.S. prosecution; the intent not to have
a "substantial effect" in the United States would then
The potential exposure of a foreign entity should be of concern
to U.S. companies to the extent that those entities are licensees
of, or closely affiliated with a U.S. company. Even if the foreign
entity were deemed to be outside the jurisdiction of the United
States, a domestic company might still be subject to prosecution
for conspiring with it or aiding and abetting it in the commission
of a crime within the United States -- that is, the transmission
of an unlawful message within the United States.
It is not unusual for individuals to be convicted of aiding and
abetting or conspiracy when the principal has not been caught or
goes free for other reasons, such as diplomatic immunity. Although
the United States might, for reasons of international comity decide
not to exercise jurisdiction over an effect here, in the eyes of
the law a crime has nonetheless been committed. A domestic entity
participating in such a crime must still be concerned about potential
There are at least three categories of U.S. companies that should
be concerned about potential liability for unlawful speech on foreign
Web sites. The first is a company that licenses to a foreign entity
material that could be unlawful if transmitted within the United
States. To illustrate, a pornographic magazine might be concerned
if its British licensee were to post on a foreign Web site material
that the U.S. company created and licensed to the British entity.
This example assumes that such material could be characterized as
obscene -- or prohibited under the Communications Decency Act, if
its disputed provisions were to be upheld.
Licensing material arguably created criminal liability as an aider
or abettor, particularly if the U.S. company is aware that its material
is being used on the Web site and if the U.S. company is rewarded
for transmissions to the United States, such as by promotion of
the company name or by earning increased licensing fees.
Second, a U.S. company that licenses a product -- such as a pharmaceutical
-- to a foreign entity must be concerned about unlawful advertising
that can be received in the United States.
Finally, a company intimately involved with a foreign subsidiary
of affiliate that maintains a Web site with material proscribed
by U.S. law, such as representations concerning securities for sale
in the United States that do not meet SEC guidelines, has cause
for concern. Piercing the corporate veil to impute criminal liability
to affiliates is indeed difficult if normal corporate formalities
are observed. Nevertheless, cases in which affiliates of U.S. companies
are taking actions that would be illegal in the United States often
present particularly bad facts, which could inspire prosecution.
U.S. companies should monitor the Web sites of their foreign licensees
and affiliates, and perhaps encourage them to try developing the
blocking technology contemplated above. Even if blocking technology
were not entirely effective, insistence by a U.S. licensor that
the foreign entity employ such technology should obviate any finding
that the U.S. company intended to aid and abet in the violation
of U.S. laws.
*Dan Troy is a partner, and Mr. Goldstone an associate, at Washington,
D.C.'s Wiley, Rein, & Fielding. They specialize in communications
law and litigation. Mr. Troy is also an associate scholar of legal
studies at the American Enterprise Institute. Mr. Goldstone is a
trial attorney in the computer crime and intellectual property section
of the Department of Justice. The opinions expressed in this article
are solely those of the author and do no necessarily reflect the
views or policies of the Department of Justice.
- See, e.g., 21 U.S.C. 331(a), 333 and 352 (n),
and 21 C.F.R. 202, 1(e) (6)(i) (drug advertising): 15 U.S.C. 78k
(b), 78ff(a) and 17 C.F.R. 240.10b-5 (securities); and 47 U.S.C.
- Key provisions of the Communications Decency
Act were struck down as unconstitutional by a three judge panel
of the U.S. District Court for the Eastern District of Pennsylvania
June 12, American Civil Liberties Union v. Reno; American Library
Assoc. Inc. v. U.S. Dep't of Justice, 929 F. Supp. 824 (E.D. Pa.
1996). The Department of Justice filed a notice of appeal to the
Supreme Court July 1. Should the high court reverse foreign Web
sites containing material considered indecent under the act could
be subject to prosecution. For information on the lawsuits. see
http://www.edt.org/clec/index.htm and hhtp:/www.aclu.org/issues/cyber/trial.htm.
- U.S. v. Felix-Gutierrez, 940 F. 2nd 1200.
1204 (9th Cir. 1991), cert. denied, 508 U.S. 906 (1993) (citing
U.S. v. Bowman, 260 U.S. 94 (1922)).
- Restatement (3d) of Foreign Relations of the
United States, Secs. 402. 403 (1987).
- That is, the government might prosecute this
person if the United States could exert control over him, either
by virtue of his presence here or an extradition demand.