Poachers with PCs: The United States' Potential Obligations and Ability to Enforce Endangered Wildlife Trading Prohibitions against Federal Traders Who Advertise on eBay

Abstract

The Internet has become a dangerous tool in the illegal trading of wildlife; a recent one-week survey found over 9,000 wildlife products for sale. As the Convention on International Trade in Endangered Species (CITES) and the United States' implementing legislation, the Endangered Species Act (ESA), address the movement of wildlife across national boundaries, the use of the Internet in such trade poses significant new legal questions, implicating basic principles of international law and jurisdiction. This paper explores applicable law when a foreigner, in a foreign country, places an illegal wildlife item for sale on a U.S.-based Internet auction service, such as eBay. While U.S. law authorizes the government to prosecute the hypothetical foreigner, it is unlikely that the United States could successfully assert jurisdiction to prescribe without the agreement of the foreign country. First, the Internet posting comprises an offer for sale prohibited by the ESA. Second, while the ESA has ambiguities as to extraterritorial application, interpretive methods on balance suggest that it is so intended. Third, evolving jurisprudence in the Internet context provides support for personal jurisdiction (e.g., if "something more" is present, likely with a repeat seller). While the hypothetical is untested on some aspect of each of these issues, sources of law have been identified that support the claim. Jurisdiction to prescribe over the hypothetical, however, is not supported in the law. The hypothetical does not convincingly fit the effects principle, and universality would likely fail on state sovereignty concerns. Thus, the United States cannot assert jurisdiction. [ABSTRACT FROM AUTHOR]