To Govern the Internet is to Govern the World: Proscribing the Transmission of Content Results in ‘Domestic Application’ of American Law Around the World

To Govern the Internet is to Govern the World: Proscribing the Transmission of Content Results in ‘Domestic Application’ of American Law Around the World

By: Ethan Rose*

A basic assumption about American law is that it “governs domestically but does not rule the world.”[1] Indeed, the Supreme Court has a canon of statutory construction as to this effect—the presumption against extraterritoriality.[2] This canon requires that “federal laws will be construed to have only domestic application[,]” unless Congress “clearly expressed its intent to the contrary[.]”[3] The presumption correctly operates on the “commonsense notion that Congress generally legislates with domestic concerns in mind.”[4] However, the growing connectivity of the global population, especially with the internet, increasingly requires that the United States “rule the world” to protect some of these domestic concerns.

The need to regulate extraterritorial conduct is reflected by how the courts treat foreign conduct, even in cases where they find that the extraterritorial application of a statute is impermissible. If such an application is impermissible, the courts determine whether “the case involves a permissible domestic application[.]” [5] To determine this, the courts look at the statute’s “focus” and whether “the conduct relevant to the statute’s focus occurred in the United States[.]”[6] In cases where transmission is the focus of the crime, such as wire fraud and transmission of child pornography, foreign conduct can be criminalized if there is a recipient of the transmission in the United States.[7] Moreover, livestream transmissions may involve domestic application if a party is in the United States.[8]

However, applying American law to foreign actors is not a new phenomenon. Courts have long upheld convictions of foreigners whose criminal conduct is completed in the United States, even if they committed their final criminal act in their home country.[9] Conduct that targets the United States or has an adverse impact in the United States has typically been found within the scope of statutes. However, in those cases, those caught by the law knew they were targeting the country. For example, those who send contraband through the mail to recipients in the United States are aware that they are sending it to the United States. Those who engage in conspiracies to traffic narcotics in the United States without entering the United States themselves know that their conduct will impact the United States. In other words, those who find themselves on the wrong side of American law know they are interacting with the United States or an American citizen.

The increased prevalence of the internet makes foreign application of American law more common. Previously, foreign criminals could avoid the application of American law if they 1) did not commit crimes while they were in the United States, and they 2) did not target the United States with criminal conduct. Nowadays, foreign criminals are more likely to target victims in America even if they do not intend to. Typically, internet users do not know the location of every user they interact with online. Therefore, it is much easier for foreigners to interact with Americans without intentionally targeting Americans. Consequently, foreigners engaged in criminal conduct are more likely to target Americans. As foreigners target more Americans, American law will have a growing role in regulating the world.

As Congress passes laws focused on what can be sent online, they should be aware that, at least in theory, these laws are regulating foreign citizens. If legislators are worried about conflicts between American law and the laws of other nations, they cannot rely on the presumption against extraterritoriality to ensure that American laws will not be used against foreign citizens. The presumption would be circumvented by the domestic application of the law if an American receives the proscribed transmission. In most cases, this is likely a desirable outcome because the laws would likely be designed to protect Americans from malevolent conduct online. However, if there is a concern that a clash between American law and the laws of other nations would result in international discord, Congress would benefit from circumscribing the law’s application to conduct initiated in the United States or by an American citizen.

Even in the limited circumstances in which the focus of law is the transmission of proscribed content, it could sweep in a number of those outside the United States. As the internet connects the world, it will become more difficult for Congress to govern domestically without governing the world.

*J.D. Candidate, University of Tennessee College of Law, Class of 2025.

[1] RJR Nabisco, Inc. v. European Cmty., 579 U.S. 325, 335 (2016) (quoting Microsoft Corp. v. AT&T Corp., 550 U.S. 437, 454 (2007)).

[2] Id.

[3] Id.

[4] Id. at 336 (quoting Smith v. United States, 507 U.S. 197, 204 n. 5 (1993)).

[5] Id. at 337.

[6] Id. at 326.

[7] See United States v. Hussain, 972 F.3d 1138, 1145 (9th Cir. 2020) (finding domestic application of the wire fraud statute where communications from England were sent to California); United States v. Elbaz, 52 F.4th 593, 601, 604 (4th Cir. 2022) (finding that domestic application of the federal wire fraud statute was appropriate because the transmission was the focus of the statute and the recipient of the transmissions was in Maryland even though the defendant was in Israel).

[8] United States v. Skinner, 70 F.4th 219, 225 (4th Cir. 2023) (finding domestic application of the statute prohibiting the live visual depiction of a minor engaged in sexually explicit conduct because the minor lived in Virginia even though the defendant lived in New Zealand).

[9] See United States v. Moncini, 882 F.2d 401, 404 (9th Cir. 1989) (upholding the conviction of a defendant who sent child pornography from Italy to the United States through the mail).