Cyber-Nuisance

92 Pages Posted: 18 Jun 2020 Last revised: 23 Nov 2021

Date Written: Nov. 12, 2021

Abstract

2020 promises to be the year of Russian “patriotic hackers” interfering in the U.S. presidential election and state-sponsored cyber-agents taking near war tensions between the U.S. and Iran to a computer network near you; inevitably, cyber-criminals are likely to exploit the ensuing chaos to hack, steal, and ransom with impunity. As it stands, the dominant cyberlaw paradigm as expressed in the 2017 NATO-led Tallinn Manual 2.0 has no realistic means to respond to or prevent these scenarios: it is stuck choosing between escalating cyber-reprisals on the one hand (sometimes conveniently or falsely attributing criminal cyber-conduct to state agents to justify a response) and paralysis to avoid such escalation on the other. This Article submits that the cyberlaw paradigm is stuck in a false dichotomy – and that this false dichotomy can only be resolved if we gain a better understanding of the legal nature of cyberspace itself.

The Article is the first to establish that cyberspace as a matter of property law consists of a global web of correlative rights protected by means of a general nuisance principle. The Article uses a functional comparative property/ natural-resource law analysis to prove the existence of such a general nuisance principle premised upon the idea of correlative rights. It demonstrates that this principle is applicable to cyberspace and is in fact consistent with many of the existing starting points of cyberlaw. But it maps further how and where the Tallinn 2.0 paradigm went demonstrably astray – and more importantly, how the cyberlaw-paradigm can be now be set to rights. Centrally, Cyber-Nuisance develops (1) how states and apex non-state actors (Windows, Apple, Facebook, Twitter, Google etc.) share in governance obligations, (2) what the overarching goal of these governance obligations is – the protection of connectivity of cyberspace participants, and (3) an abatement-based enforcement mechanism that escapes the escalation trap bedeviling the Tallinn 2.0 approach.

The Article meaningfully advances the literature by providing a more precise legal framework for understanding the nature of cyberspace and the obligation of state and non-state actors alike to protect it. This framework can explain an intuitive insight about cyberspace that so far has escaped cyberlaw paradigms, namely that cyberspace is at once a local and a global domain giving rise to local and global rights and obligations. The Article does so in a noticeable departure from dominant cyberlaw frameworks by grounding the analysis of cyberspace in comparative property law. It uses this lens to explain how the apparently contradictory local and global aspects of cyber are but flipsides of how one approaches correlative rights in their new, virtual context.

Keywords: cyberspace, nuisance, general principles of law, diligence, Tallinn Manual 2.0

Suggested Citation

Sourgens, Freddy G., Cyber-Nuisance (Nov. 12, 2021). 42 University of Pennsylvania Journal of International Law 1005 (2021), Available at SSRN: https://ssrn.com/abstract=3610354

Freddy G. Sourgens (Contact Author)

Washburn University - School of Law ( email )

1700 College Avenue
Topeka, KS 66621
United States

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