CYBERLAW
Class 6 - Territorial Boundaries,
Sovereignty, and the Regulation of
Cyberspace : Will the Internet
Undermine National Law? The
Nation State?
Sept. 16, 2002
David Post
• Senior Fellow at Tech
Center, George Mason
• Associate Prof., Temple
University Law School
• Previously worked as an a
anthropologist studying
the feeding behavior of
yellow baboons in
Kenya's Amboseli
National Park and
teaching in the
• Law clerk to Justice
Ruth Bader Ginsburg
David Johnson
• Former partner at Wilmer,
Cutler & Pickering
• Now Chair of Counsel
Connect, an electronic
mail and conferencing
system that connects
corporate counsel and
outside law firms, and has
been instrumental in
encouraging the use of IT
in the legal profession
• Co-founder of Virtual
Workroom
Jack Goldsmith
• Professor of Law, The
University of Chicago
Law School
• Clerked for Justice
Kennedy on the U.S.
Supreme Court
James Boyle
• William Neal
Reynolds Professor of
Law at Duke Law
School. He joined the
faculty in July
2000. He has also
taught at American
University, Yale,
Harvard.
Territorial Boundaries and Law
• Ignoring cyberspace, to what extent is our
legal system both domestic and
international, based on territoriality?
• Is “all law prima facie territorial”? Why or
why not?
Are Physical Borders Relevant
for a digital world?
• Are physical borders and physical
geography irrelevant for the regulation of
cyberspace? Why or why not? What do
David Johnson & David Post think about
this issue and about the ability of
territorially-based laws to regulate
cyberspace? What about Jack Goldsmith?
• What do you think?
Post & Johnson on Net
Geography
• “…events on the Net occur everywhere but
nowhere in particular.”
Post & Johnson Argue
• “Cyberspace radically undermines the relationship
between legally significant (online) phenomena
and physical location. The rise of the global
computer network is destroying the link between
geographical location and: (1) the power of local
governments to assert control over online
behavior; (2) the effects of online behavior on
individuals or things; (3) the legitimacy of the
efforts of a local sovereign to enforce rules
applicable to global phenomena; and (4) the
ability of physical location to give notice of which
sets of rules apply.”
Johnson && Post – futility of
efforts to control bits
• “But efforts to control the flow of electronic
information across physical borders--to map local
regulation and physical boundaries onto
Cyberspace--are likely to prove futile, at least in
countries that hope to participate in global
commerce. Individual electrons can easily, and
without any realistic prospect of detection, "enter"
any sovereign's territory. The volume of electronic
communications crossing territorial boundaries is
just too great in relation to the resources available
to government authorities to permit meaningful
control.”
Johnson & Post
• Options:
• 1. Filtering/blocking
• 2. Apply local law to any web site accessed
by local residents
• Argues that neither is viable and “no
physical jurisdiction has a more compelling
claim than any other to subject events [on
the Net] exclusively to its laws.”
Problems Raised By Johnson &
Post
• The trademark problem
• The licensing problem (e.g. bank
regulations, medical licensing, etc..)
Assuming you agree with Post
and Johnson, what is the
solution?
Assuming you agree with Post
and Johnson, what is the
solution?
• “Many of the jurisdictional and substantive
quandaries raised by border-crossing
electronic communications could be
resolved by one simple principle:
conceiving of Cyberspace as a distinct
“place” for the purposes of legal analysis by
recognizing a legally significant border
between Cyberspace and the “real world”.”
Assuming you agree with Post
and Johnson, what is the
solution?
• In other words: treat cyberspace as “a
separate space to which distinct laws
apply.”
• They believe a net-based global registration
system for domain names would solve the
trademark problem. Would it? What about
defamation, regulation of professional
activities, fraud & antitrust, copyright law?
If a new legal regime should
apply to cyberspace…
• Who should set the rules?
• Would these rules be enforceable?
• What do Post & Johnson think?
Lex mercatoria?
• What is this?
• Is something similar in fact developing?
Cyberspace: diverse territories
• Johnson & Post argue that “the new sphere online
is cut off, at least to some extent, from rulemaking institutions in the material world and
requires the creation of a distinct law applicable
just to the online sphere.”
• But they also argue that “Cyberspace is not,
beyond that border, a homogenous or uniform
territory.”
• What effect does this have on regulation?
Goldsmith
• Goldsmith totally disagrees with Johnson & Post
that the Internet “undermin[es] the feasibility- and
legitimacy – of laws based on geographical
boundaries.”
• Goldsmith: “from the perspective of jurisdiction
and choice of law, territorial regulation of the
Internet is no less feasible and no less legitimate
than territorial regulation of non-Internet
transactions.”
Boyle
• What does Boyle think of Johnson & Post’s
“digital libertarianism”?
• Why?
Boyle
• What is the “Internet Trinity”: 3 ideas of
digital libertarians that Boyle challenges?
Boyle
• What is the “Internet Trinity”: 3 ideas of digital
libertarians that Boyle challenges?
• The Net interprets censorship and routes around it
(John Gilmore)
• In Cyberspace, the First Amendment is a local
ordinance (John Perry Barlow)
• Information Wants to be Free – (Stewart Brand)
• Why does Boyle challenge these ideas?
Boyle
• Libertarians have an overly positivist view of the
state (exercise of power by sovereign expressed
by rules backed by sanctions)
• In fact power is being exercised by many non-state
sources of surveillance and control, often backed
by technical enforcement means similar to
Foucault’s Panopticon
• Moreover, the state has more power than digital
libertarians believe
Territorial Sovereignty, according
to Goldsmith
• Nation’s prerogative to control events in
territory entails power to regulate the local
effects of extraterritorial acts.
• Can regulate means of communication –
hardware and software- located in territory,
as well as Internet users in territory.
Goldsmith Counters 3 Arguments
• 1. Regulatory leakage is more serious for Internet
than real world so Internet beyond territorial scope
of one particular sovereign.
• 2. Because Internet reaches many territorial
jurisdictions simultaneously, it is simultaneously
subject to all national regulation.
• 3. One sovereign’s territorial regulation of
Internet will lead to undesirable spillover effects
How Unique is Cyberspace?
• How different is it from the "real"
world? Is cyberspace a place?