The challenge of the conflict of Law in cyberspace and its solution in the judicial procedure of the United States of America

Subject Areas : Legal Studies of Cyberspace

Esmaeil Baghban ¹ , Babak pourghahramani ^{2 *} , Fatemeh Ahadi ³

1 - Ph.D Student in Criminal Law and Criminology, Maragheh Branch, Islamic Azad University, Maragheh, Iran
2 - associate professor
3 - Assistant Professor, Department of Criminal Law and Criminology, Faculty of Law and Humanities, Maragheh Branch, Islamic Azad University, Maragheh, Iran.

Received: 2023-01-27 Accepted : 2023-04-29 Published : 2024-12-22

Keywords: Judicial Procedure, Cyberspace, Conflict of Jurisdiction, Minimum Contact Principle, Purposeful Direction , Principle of Foreseeability, United States of America,

Abstract :

The conflict of criminal jurisdiction in cyber crimes is a very fundamental challenge; Because the lack of clear demarcation in this space and ultimately the impossibility of implementing "territorial jurisdiction" as a basic factor in determining jurisdiction, leads to the application of other jurisdictional principles in this field, And when this case is proven in connection with multiple jurisdictions and two or more different courts consider themselves competent in dealing with a crime, we will face a "conflict of criminal jurisdiction" in the cyberspace; which leads to a conflict of jurisdiction in the courts of a country or in the international area.In response to these conflicts, the judicial system of the United States of America has put its approach to the use of traditional legal rules in this field and in line with the use of the criteria of " Minimum Contact Principle", " Purposeful Direction " and " Principle of Foreseeability" to solve this conflict; which has faced major challenges in the operational phase. With the help of the descriptive-analytical method, the present article examines the challenge of the conflict of cyber laws and its solution in the judicial procedure of the United States of America; that the findings of the research show the ineffectiveness of traditional rules in this field; In this regard, the need to change the attitude and apply the special rules of the cyber space and achieve the approach of " Res Extra Commercium " in this space seems inevitable.