Cornell Law Review Volume 99 Issue 6

The New Territorialism in the Not-So-New Frontier of Cyberspace

Who should govern cyberspace? And what rules should apply? When Professor Louise Weinberg invited us to contribute to this symposium, she asked us to write on governance issues in the new frontier of cyberspace. That could have been a daunting task. The electronic world we live in today presents many challenges. Fortunately, cyberspace is no longer new, and many before us have attacked the broad governance questions that arise when persons all over the world communicate and transact business using the global Internet. As a result, we need not tackle those larger questions; rather, we will discuss what the Supreme Court’s recent imposition of territorial limits in various areas of law means to disputes that arise from interactions that take place electronically. Rather than discussing who should govern cyberspace, we will focus on the question of whose rules should apply.

Our assigned task implies that the frontiers of cyberspace differ from the frontiers of the tangible world. In one sense, that is true: the Internet is a global “network of networks,” enabled by the Transfer Control Protocol/Internet Protocol (TCP/IP), which allows any computer in the world to communicate with any other computer in the world. On the other hand, however, the interactions conducted over this global network have tangible world effects that are often no different from the pre-Internet era tangible world effects of tangible world activities. This is true regardless of the number of exotic jurisdictions through which electronic information may pass on its journey from point A to point B.

So what insight do we have concerning who should govern cyberspace? We propose a simple framework. At the core of that framework is our recognition that the term “cyberspace” refers to a means of communication. This means of communication allows individuals and entities to engage in the same interactions using electronics in which they engage in the face-to-face world. Cyberspace, as a method of communication, in other words, removes spatial constraints from these interactions. Therefore, persons can interact at no additional cost with others located in far-flung jurisdictions. Does the removal of cost and spatial constraints change the legal nature of the interaction?

 

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