I feel some need to sum up what I have observed this semester, and find Dan Burk’s comments in “Jurisdiction in a World without Borders” especially appropriate:
As humankind enters the 21st century…the advent of global computer networks has rendered geographic boundaries increasingly porous and ephemeral…
As the community of Internet users grows increasingly diverse, and the range of on-line interaction expands, disputes of every kind may be expected to occur…federal legislature has begun paying some attention to the network, and state regulators seem equally anxious to leave their mark on the burgeoning field of “cyberlaw”…
Of course, even without the enactment of new laws or regulations, there are already on the books plenty of laws that states might apply to the Internet…
By contrast, the Attorney General of Florida, has opined that because of the novel nature of the Net, forays into on-line enforcement of current law would be premature.
The wisdom of the Florida position becomes apparent when the nature of the Internet is carefully considered. The Internet extends beyond the boundaries of any of the states, and the effects of state regulation will likewise spill over state borders. Such regulatory leakage implicates constitutional doctrines designed to preserve both the sovereignty of the individual states and the coherence of the United States as a whole. The prospect of states applying haphazard and uncoordinated multi-jurisdictional regulation to the Internet’s seamless electronic web raises profound questions regarding the continued growth and usefulness of this medium. And, given the international nature of the network, even centralized federal attempts at regulation raise grave questions regarding international sovereignty and jurisdiction.
Though Burk largely intended to address jurisdiction in his remarks, they apply well to some of the “thornier” issues that we have raised this semester. As diverse as these issues appear they share one central tenet: namely, they all stem from a failure to recognize the “novel nature of the Net.”
For example, Burk cites federal legislation which seeks to “leave [its] mark on cyberlaw.” Certainly no one would argue that the Federal government does not have a legitimate interest in setting uniform internet legislation. Yet, as Burk alludes to, some of this legislation fails to situate itself within the context of the very thing it seeks to legislate – namely, the ever expanding national and international web community. We discussed two prime examples of this already: the Digital Millennium Copyright Act (DCMA) and the Computer Fraud and Abuse Act (CFAA) – both of which have perverse, if perhaps unintended externalities for the web (and academic) communities (to name two).
Yet, the federal government is not alone in this unfortunate state of affairs. State legislatures also seek to influence cyberlaw, further muddying the descriptive record. Again, we addressed several such state legislative conundrums, such as the various “long arm” statutes which claim nearly unlimited jurisdiction under myriad statutes. And as we’ve seen in our discussion of the trespass to chattels doctrine, state legislation can apply different positive standards to the same “netizen.”
As we’ve seen in internet copyright disputes, constitutional issues drive much of the discussion surrounding the internet. While neither “right” is explicitly given precedence, copyright law within the context of the internet pits the “right” of innovators to innovate, versus the “right” of copyright holders to exploit their lawful monopoly. Speech presents another thorny constitutional issue when cabined within the confines of cyberspace. Specifically, the strong protections afforded speech in the “real world” appear inadequately or unevenly applied in cyberspace.
As if these issues were not enough, cyberspace necessarily implicates not just US law, but in fact international law, and the laws of other national sovereigns. Our discussions about the propriety of, and possible alternatives to ICANN amply demonstrated to me how difficult it will be to reconcile the three.
Where does this leave us? These myriad problems all stem from inadequate recognition that cyberspace is, in reality, a new extraterritorial, “extranational” community, which both “exists” in real time and also lacks many elements common to a traditional community (defined borders, perfectly identifiable participants, common standards – or at least some compromise position, legal character, and “real” property). Thus, one might legitimately ask whether or not cyberspace presents as novel a reality as these facts might suggest. In other words, does “cyberspace” actually exist? If so, is it worthy of unique legal character? If yes, how is this legal code to be determined, and perhaps as importantly – by whom?
While recognition of these “novel” elements is essential to any resolution of problematic cyberlaw, mere recognition does not solve the problem. And yet, as Burk suggest, it presents the necessary first step.