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

Abstract

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 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. I. CITES AND THE PROBLEM OF INTERNET TRADING IN ENDANGERED SPECIES II. UNITED STATES' OBLIGATIONS UNDER CITES III. POTENTIAL APPLICATION OF THE USA TO FOREIGN POSTED INTERNET ADVERTISEMENTS IN THE UNITED STATES A. The Endangered Species Act and Its Prohibitions 1. Violation of Prohibition on Offer for Sale. 2. Whether the Offer for Sale Is Extraterritorial B. Extraterritorial Application of USA Section 9(a)(1)(F) 1. Language and Structure of the USA a. Persons Subject to the Jurisdiction of the United States b. Language and Structure of Section 9 2. Congressional Intent as to Section 3. Purpose of the Whole Statute 4. Interpretation of Similar Statutes 5. Conclusion C. Jurisdiction to Prescribe D. Personal Jurisdiction 1. Personal Jurisdiction in Internet Cases 2. Minimum Contacts 3. Fair Play 4. Venue, Notice, and Service 5. Conclusion IV. CONCLUSIONS A. U.S. Laws Are Adequate to Implement CITES Obligations B. U.S. Laws May Reach an Offer for Sale by a Foreign Trader Using eBay, but the U.S. Still Lacks Jurisdiction to Prescribe C. Any Law Enforcement Response to the Problem of International Internet Auctions in Global Wildlife Trade Must Originate in the International Community Enforcement efforts ... are only in their infancy, enabling illegal Internet traders to remain several steps ahead.... [T]ime is running out for those highly endangered species threatened by continued illegal trade.... Th[e] body of law will have to adapt quickly to new technologies if it is to be effective in saving species. (1) I. CITES AND THE PROBLEM OF INTERNET TRADING IN ENDANGERED SPECIES The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) (2) entered into force in 1975 and now boasts 169 parties, (3) making it one of the largest environmental treaties and the most important wildlife treaty. (4) CITES establishes a system to regulate the international trade of listed species of flora and fauna, formed around three appendices. …