State Criminal Jurisdiction in Cyberspace: Is There a Sheriffon the Electronic Frontier?**This article is adapted and excerpted from a forthcoming article by the author sponsored by the NationalAssociation of Attorneys General.How far can state criminal authorities go in prosecuting crimes committed over the Internet, sometimescalled "cybercrimes"? If several Michigan investors lose their life savings to a (hypothetical) scam offeredon a fraudulent website called "GoldBars4U.com" which gives a real-world address in Florida but ishosted by an Internet service provider in Ohio, can a Michigan state or county prosecutor charge the out-of-state perpetrator and make it stick?U.S. Attorney General Janet Reno recently highlighted the issue of unlawful conduct on the Internet in aspeech to the National Association of Attorneys General at Stanford University in Palo Alto, California.After extolling the positive wonders of the Internet, Attorney General Reno explained:There is a dark side. A dark side in terms of traditional crime, of threats, child pornography,fraud, gambling, stalking, and extortion. They are all crimes that, when perpetrated via theInternet, can reach a larger and more accessible pool of victims, and can transform localscams into crimes that encircle the globe. By connecting a worldwide network of users, theInternet has made it easier for wrongdoers to find each other, to congregate, to socialize, andto create an online community of support and social reinforcement for their antisocialbehaviors.1As the Internet increasingly becomes one of the mainstream forms of person-to-person communication,local law enforcement authorities will find themselves confronted with citizen complaints of crimes byperpetrators who are not located within their jurisdiction. Although Internet crimes of national orinternational scope may become federal cases,2state and local authorities must be prepared to cope withcitizen complaints of Internet crimes that fall within their traditional areas of primary responsibility.What is the law that allows a state to exercise jurisdiction in cases when the crime occurs outside thestate’s territorial boundaries? In Michigan, the common law rule first adopted in 1911 by the U.S.Supreme Court3is still the law of the land. In some other states, the reach of extraterritorial jurisdiction iscodified in specific statutes.4THE DETRIMENTAL EFFECTS TESTIn 1911, Justice Oliver Wendell Holmes wrote the opinion for the Supreme Court in Strassheim v Daily,5a case that arose in Michigan and is still cited today as authority for the proposition that a state mayexercise criminal jurisdiction over acts committed outside the territorial boundaries of a state. InStrassheim, the Supreme Court stated:Criminal Lawby Terrence BergPage1of7Article: State Criminal Jurisdiction in Cyberspace: Is There a Sheriff on the Electronic Fronti...11/25/2007http://www.michbar.org/journal/article.cfm?articleID=94&volumeID=8[a]cts done outside a jurisdiction, but intended to produce and producing detrimental effectswithin it, justify a state in punishing the cause of the harm as if he had been present at theeffect, if the state should succeed in getting him within its power.To satisfy the minimum requirements for an exercise of criminal jurisdiction over out-of-state conduct,there must be (1) an act occurring outside the state, which is (2) intended to produce detrimental effectswithin the state, and (3) is the cause of detrimental effects within the state. Unlike the jurisdictionalanalysis in civil cases, the "minimum contacts" analysis does not apply when determining criminaljurisdiction.6In criminal cases, the analysis focuses on the intent of the defendant and the effects withinthe forum state.In 1993, the Michigan Supreme Court had occasion to apply the Strassheim rule. In People v Blume, theCourt concluded that jurisdiction could not be exercised over a Florida co-conspirator who had soldcocaine to a Michigan resident where there was insufficient proof that the Florida resident had intendedthat the cocaine be distributed in Michigan.7The Blume court interpreted Strassheim as requiring both"specific intent to act and the intent that the harm occur in Michigan."8Proof that the defendant knew theperson to whom he sold the cocaine in Florida was from Michigan and would eventually return there wasnot considered sufficient to show that the defendant intended the cocaine to be sold in Michigan.9The Blume decision was largely governed by its facts, i.e., the lack of any proof that the defendant agreedwith the objects of the conspiracy or intended to affect Michigan. The Court made it clear that proof of acontinuing drug supplier relationship, or repeated conduct, or knowledge of the co-defendant’s intentwould "certainly" have meant a different outcome.10The challenge for prosecutors in charging cybercriminals based on acts committed out-of-state will begathering sufficient proof that the defendant intended to cause harm in Michigan. Certainly in cases wherethe defendant ships contraband to Michigan, or receives payment from Michigan citizens or engages in acontinuing course of conduct that affects Michigan, the intent to affect the forum will be easy to prove.11Webserver logs that keep a history of web visits that can be tracked to Michigan citizens may also berelevant to proving knowledge and intent to impact the state.STATE STATUTES GRANTING EXTRATERRITORIAL JURISDICTIONMany state legislatures have enacted jurisdictional statutes12codifying bases of jurisdiction similar to thedetrimental effects test set out in Strassheim, the Model Penal Code,13or extending their jurisdictionalreach even further.14Most of these statutes track the Model Penal Code’s language, or adopt similarlanguage, to the effect that for the state to exercise jurisdiction over an offense occurring partly outsidethe state, either an element of the offense, or a result of the offense that is also an element, must occurwithin the forum state.The states that have adopted this kind of language include Colorado, Delaware, Florida, Georgia, Hawaii,Illinois, Indiana, Iowa, Kentucky, Maine, Minnesota, Montana, New Hampshire, New Jersey, Ohio,Oregon, Pennsylvania, Texas, and Utah. States that have broadened the Model Penal Code approach byalso allowing jurisdiction where a result of the offense, whether an element or not, occurs in the forumstate, are: Arizona, Kansas, New York, and Missouri.15Wisconsin’s statute permits
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