If nations are determined to enforce its Internet laws, the most important question then becomes which government has jurisdiction over multi-national problems. Conflicts over the Internet can result in a tri-jurisdictional dispute, between the country where the information was transmitted, the country where the ISP is located, and the country where the transmission was accessed. (Sean Selin, Governing Cyberspace: The Need For An International Solution, 32 Gonz. L. Rev. 365, 371 (1996-97).) The Internet is multi-jurisdictional and current international law does not adequately resolve the problems this poses.

Countries may over-regulate the Internet if users routinely commit acts in one country that lead to harmful effects in another. People who disseminate information through the Internet that is illegal in one country can easily transfer the information to a country with no similar prohibitions and effectively redeploy their disseminating action in little time. Countries can attempt to regulate the avoidance of national laws, but such actions may implicate sovereignty issues of other countries. (Id. at 372).

A person's virtual presence on the Internet can exist in any nation. (Id. at 371.) This concept of presence could result in information on a web-site in San Diego, created for American viewers, violating a law in Singapore. If there is a lack of international cooperation, the San Diegan could face serious problems with authorities in Singapore. This would create an international jurisdictional problem. The enforcement of different national standards could stifle the Internet’s potential as a global medium.

The United States is one of the countries determined to enforce its Internet regulations. The U.S. cases that have addressed the relationship between the Internet and personal jurisdiction reveal that "the likelihood that personal jurisdiction can be constitutionally exercised is directly proportionate to the nature and quality of commercial activity that an entity conducts over the Internet." (Zippo Manuf. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1124 (W.D. Pa. 1997).) In cases where defendants actively do business on the Internet, personal jurisdiction is found because defendants "enter into contracts with residents of a foreign jurisdiction that involve the knowing and repeated transmission of computer files over the Internet." (Id.) In situations where a user can exchange information with the host computer, "the exercise of jurisdiction is determined by examining the level of interactivity and commercial nature of the exchange of information that occurs on the web-site." (Maritz, Inc. v. Cybergold, Inc., 947 F. Supp. 1328 (E.D. Mo. 1996).)

When a passive web-site, a site that merely provides information or advertisements to users, is involved, no court has exercised jurisdiction over a party merely because that party has a web-site that is accessible in the court’s jurisdiction. A finding of personal jurisdiction based on merely a passive web-site would mean that there would be national, even global, personal jurisdiction over anyone and everyone who establishes an Internet web-site. Such nationwide jurisdiction is not consistent with traditional personal jurisdiction case law. (Hearst Corp. v. Goldberger, Civ. A. No. 96-3620, 1997 WL 97097, at *1 (S.D.N.Y. Feb. 27, 1997).)

Creation of a passive web-site itself is not sufficient to find that a defendant purposefully availed himself of the benefits and privileges of a forum state. (Bensusan Restaurant Corp. v. King, 126 F.3d 25 (2d Cir. 1997).) An advertisement on the Internet falls under the same law as advertising in a national magazine so it does not constitute "continuous and substantial" contacts within a jurisdiction. (George A. Davidson, Jurisdiction Over Non-U.S. Defendants, 579 PLI/Lit 31 (Feb. 1998).) Thus, advertising on the Internet has not been found to be directing activity at or purposefully availing oneself of a particular jurisdiction.

However, a Virginia court found personal jurisdiction applied to a defendant under that state's long-arm statute, for posting an allegedly defamatory statement regarding a Virginia corporation on a passive Internet site but including a telephone number at which the defendant could be reached. (Telco Communications v. An Apple A Day, 977 F. Supp. 404 (E.D. Va. 1997).) A Connecticut court, also, declared personal jurisdiction over a defendant who had a passive web-site with a phone number included. That court said that a passive web-site with a phone number constituted a "continuous" web-site for the purposeful "doing business" in Connecticut. (Inset Sys., Inc. v. Instruction Set, Inc., 937 F. Supp. 161 (D. Conn. 1996).) Consequently, web-site owners may be overly cautious due to the trivial distinction in jurisdiction among passive web-site owners that these two courts have created.

Harmonization of national legal standards may not be a realistic solution for every Internet issue. (Joel R. Reidenberg, Lex Informatica: The Formulation Of Information Policy Rules Through Technology, 76 Tex. L. Rev. 553 (February 1998).) However, technical solutions can enable Internet-wide enforcement of intellectual property rights. Technical mechanisms can allow for self-enforcement of the choices desired by owners of intellectual property through automated and self-executing rule enforcement. (Id.) Technical systems can, also, automate permission and payment for use of protected works. (Id.) Further, PICS technology can allow international enforcement by providing a means to label material that is located elsewhere. (Id.)

Under the gTLD-MoU reformation plan, administrative bodies will not have legal authority or jurisdiction over persons per se, or over the enforcement of national intellectual property laws. (Eric T. Fingerhut & P.L. Skip Singleton, Jr., The gTLD-MoU: A Yellow Flag For Trademark Owners On The Information Superhighway, 38 IDEA: J.L. & Tech. 281 (1998).) However, by assuming in rem or quasi-in-rem jurisdiction over the domain names themselves the administrative body will create a body of administrative law with world-wide effect. (Id.) This could be the necessary gap-filler until technological solutions are fully effective.

The exercise of personal jurisdiction can have other economic effects that could excessively restrict the Internet. If a plaintiff can allege liability against an ISP, who may not be directly involved in a particular wrongful act, but may have deep financial pockets, then ISP’s will have to pass on the cost of that uncertainty onto all of its users.