Against 'Against Cyberanarchy'

Abstract

Prof. Jack Goldsmith's Against Cyberanarchy has become one of the most influential articles in the cyberspace law canon. The position he sets forth - what I call Unexceptionalism - rests on two main premises. The first is that activity in cyberspace is functionally identical to transnational activity mediated by other means (e.g., mail or telephone or smoke signal). The second is that, as a consequence of this functional identity, the settled principles and traditional legal tools of the international lawyer are fully capable of handling all jurisdictional and choice-of-law problems in cyberspace - that the choice-of-law problems implicated by cyberspace are not significantly different from those [of] non-cyberspace conflicts and that we therefore need make no special provision for these problems when they arise in cyberspace.

In this paper, I beg to differ. I remain an unrepentant Exceptionalist. Communication in cyberspace is not functionally identical to communication in realspace - at least, not in ways relevant to the application of the choice-of-law and jurisdictional principles under discussion. Second, I suggest reasons why the jurisdictional and choice-of-law dilemmas posed by cyberspace activity cannot be adequately resolved by applying the settled principles and traditional legal tools developed for analogous problems in realspace.

Keywords: cyberspace, Internet, jurisdiction, sovereignty, choice-of-law, Exceptionalism, Goldsmith, regulation

JEL Classification: K10, K33, K40