Complexities of Cyberspace Regulation: Debating Sovereignty and Jurisdiction in a Borderless Realm

Cyberspace as a site where no one state can justifiably claim jurisdiction, is an idea that was first famously argued by Perry Barlow, who termed cyberspace as a global electronic social space where governments did not have a moral right to rule nor did they have methods of enforcement because cyberspace does not lie within the borders of any space. While theories of regulation of cyberspace have been propounded since that time, it is also accepted that the regulation of cyberspace is made complex because of the existence of multiple and overlapping systems of rules or 'interleaflet' that are applicable to cyberspace. Does that mean that no state can justifiably claim comprehensive law-making authority in cyberspace as claimed by Reed and Murray? This essay critically engages with the question of regulation of cyberspace and discusses some of the relevant theories in this context.

At the outset, it is necessary to accept that the internet or the cyberspace is a unique domain in terms of information offered, as well as its geography, structure and architecture. This makes the task of theoretical consensus on how it can be regulated, complex and fraught with disagreement. Two prominent theoretical approaches have been developed with regard to regulation of internet: cyber-libertarianism; and cyber-paternalism. The two theories offer contrasting views on how cyberspace can or cannot be regulated. The one commonality between the contrasting approaches is the agreement on the fact that cyberspace is unique and important in the contemporary world. However, it can be argued that its very significance, in terms of its increasing ubiquitous nature, begs the question of its regulation. The question is how far states can regulate the cyberspace given the unique architecture and geography of the cyberspace.

One of the approaches to cyber regulation comes from the classical cyber-libertarianism perspective that was proposed by Johnson and Post. They argued that the traditional state sovereignties cannot be applied to cyberspace because there are no territorial boundaries in the cyberspace; rather, they argued that cyberspace would be regulated by norms that are defined by the digital community because it is a distinct place from the real world. Cyber-libertarianism proposes that internet can be self-governed, meaning that internet can formulate rules of its own governance and regulation and that governments are not required to make regulation of cyberspace. Perry Barlow’s claim of internet being outside the scope of government control is a view that takes from the

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1. John Perry Barlow, ‘Declaration of the Independence of Cyberspace’ (1996) accessed
2. Chris Reed and Andrew Murray, Rethinking the Jurisprudence of Cyberspace (Edward Elgar 2018) 14.
3. DR Johnson and D Post, ‘Law and borders: the rise of law in cyberspace’ (1996) 48(5) Stanford Law Review 1367.
4. Ibid.

cyber-libertarianism. Netanel has noted that this viewpoint sees “bottom-up private ordering” of cyberspace as preferable to regulation by a bureaucratic state. The main argument for this viewpoint is that it would lead to the primacy of local norms and individual choice over the regulatory norms made by the state.

Two opposing approaches to the cyber- libertarianism approach are that of cyber-realism and techno-determinism, which are generally grouped under the umbrella of “cyber-paternalists”. Cyber-realism proposes that cyberspace may be regulated based on the traditional perspective of jurisdiction and law. Techno-determinism proposes that internet exceptionalism or the idea that internet cannot be regulated by states is not due to the impossibility of regulating cyberspace, but the problems related to conforming enforcement tools with the classical regulatory modalities. From a cyber paternalistic perspective, it is possible to address regulation of cyberspace; this was proposed by Lawrence Lessig who argued that what is needed is a re-reading traditional regulatory performance with relation to the characteristics of internet such as its architecture, and how this relates and responds to the Markets, Law, and Norms. Internet Architecture is considered to have a role in asserting rights so that even if there is something unique about the internet, it is possible to have some regulation of internet. Taking this further, another theory proposed by Andrew Murray is that because cyberspace is a space that has geography and structure and is a space for communication and discourse, it is necessary to develop a regulatory network that is based on a hybrid system instead of only direct legal-regulatory controls by the states. In effect, this view argues that internet cannot be regulated by states alone and there has to be a hybrid model that allows the states to regulate internet along with other actors. This view is premised on the use of the cyberspace architecture to create a hybrid model of regulation and has been also proposed by other scholars writing in this domain.

5. NW Netanel, ‘Cyberspace Self-Governance: A Skeptical View from Liberal Democratic Theory’ (2000) 88 Calif L. Rev. 395.
6. Ibid.
7. Chris Reed, Law: Text and Materials (Cambridge University Press 2004).
8. Joel. R. Reidenberg, ‘Lex Informatica: The Formation of Information Policy Rules Through Technology’ (1998) 76 (3) Texas Law Review 553.
9. Lawrence Lessig, ‘The Law of the Horse: What Cyber Law Might Teach’ (1999) 113(501) Harvard Law Review 506.
10. Paul Schiff Berman, Law and Society approaches to cyberspace (Ashgate Publishing 2007).
11. Andrew Murray, Information Technology Law: the law and society (Oxford University Press 2013)
12. Laura Denardis, Global War for the Internet Governance (Yale University Press 2014).

As can be understood from the above discussion on the prominent theories on regulation of cyberspace, there is little agreement on how this can be done by the states. One can concur with the observation by Boyle that even though the nation states would wish to regulate the internet, they would not be able to do so because of the three characteristics of the internet which makes it challenging for states to regulate: technology of medium, the geographical distribution of the users, and the nature of its content. Nevertheless, some scholars do support government regulation or at least a hybrid model of regulation of internet because of reasons like the permeating influence of information technology in the life of the individual, which may at times require protection of the law; this is especially significant for commercial and non-commercial activity that may need regulation. Indeed, states around the world have legislated on different aspects of internet regulation, most prominent examples being in the domain of data protection. However, the problem arises with jurisdictional issues because of the geography of internet, and for this reason some theorists propose a third theoretical approach, which is, the international regulation of internet.

The international approach to regulation of internet is based on the understanding that the unique nature of internet and its content, which makes it impossible for any state to regulate it, there is a need for an international response. This viewpoint argues that the increasing cyber-threats and the threats to justice and security in cyberspace necessitate the regulation of internet by the international law, which can be done through treaties under the United Nations or other such regional or international mechanisms. On the other hand, one flaw with this approach is pointed out by Murray who argues that in states like the United States, international law is inferior to domestic law (unless signed and ratified), which makes it possible for international law to not be implemented in the jurisdictions of the states. Perhaps the bigger issue with regard to the international law approach is that there is no consensus reflected in a major international treaty on regulation of internet despite of decades since internet came into being while international law on telegraph were made within 12 years of the



The international approach to regulation of internet is based on the understanding that the unique nature of internet and its content, which makes it impossible for any state to regulate it, there is a need for an international response. This viewpoint argues that the increasing cyber-threats and the threats to justice and security in cyberspace necessitate the regulation of internet by the international law, which can be done through treaties under the United Nations or other such regional or international mechanisms. On the other hand, one flaw with this approach is pointed out by Murray who argues that in states like the United States, international law is inferior to domestic law (unless signed and ratified), which makes it possible for international law to not be implemented in the jurisdictions of the states. Perhaps the bigger issue with regard to the international law approach is that there is no consensus reflected in a major international treaty on regulation of internet despite of decades since internet came into being while international law on telegraph were made within 12 years of the

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13. J Boyle, ‘Foucalt in Cyberspace: Surveillance, Sovereignty and Hardwired Sensors’ (1997) 66 U. Cin. L. Rev. 177.
14. C Reed, ‘The Law of Unintended Consequences – Embedded Business Models in IT Regulation’ (2007) JILT 2.
15. Judge Stein Schjolberg, An International Criminal Court or Tribunal for Cyberspace. A paper for the EastWest Institute (EWI) Cybercrime Legal Working Group (EastWest Institute 2011).
16. Ibid.
17. Andrew Murray, The regulation of cyberspace: control in the online environment (Routledge 2007).

invention of that medium. This indicates the difficulties associated with making regulatory framework on internet.

To conclude, cyberspace is challenging to regulate and it is not possible to regulate the cyberspace by any state. However, hybrid models allowing self-governance and state regulation is an area that can be considered to create a regulatory framework that is able to address regulatory issues in cyberspace. Another possible method is to use international law for creating a regulatory framework.

Books

Berman PS, Law and Society approaches to cyberspace (Ashgate Publishing 2007). Boyle J, ‘Foucalt in Cyberspace: Surveillance, Sovereignty and Hardwired Sensors’ (1997) 66 U. Cin. L. Rev. 177.

Denardis L, Global War for the Internet Governance (Yale University Press 2014).

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18. Matthias C. Kettemann, The Normative Order of the Internet: A Theory of Rule and Regulation Online (Oxford University Press 2020).

Kettemann MC, The Normative Order of the Internet: A Theory of Rule and Regulation Online (Oxford University Press 2020).

Murray A, The regulation of cyberspace: control in the online environment (Routledge 2007).

Murray A, Information Technology Law: the law and society (Oxford University Press 2013).

Reed C, Law: Text and Materials (Cambridge University Press 2004).

Reed C and A Murray, Rethinking the Jurisprudence of Cyberspace (Edward Elgar 2018).

Reidenberg JR, ‘Lex Informatica: The Formation of Information Policy Rules Through Technology’ (1998) 76 (3) Texas Law Review 553.

Journal

Johnson DR and D Post, ‘Law and borders: the rise of law in cyberspace’ (1996) 48(5) Stanford Law Review 1367

Lessig L, ‘The Law of the Horse: What Cyber Law Might Teach’ (1999) 113(501) Harvard Law Review 506.

Netanel NW, ‘Cyberspace Self-Governance: A Skeptical View from Liberal Democratic Theory’ (2000) 88 Calif L. Rev. 395.

Reed C, ‘The Law of Unintended Consequences – Embedded Business Models in IT Regulation’ (2007) JILT 2.

Conference papers

Schjolberg S, An International Criminal Court or Tribunal for Cyberspace. A paper for the EastWest Institute (EWI) Cybercrime Legal Working Group (EastWest Institute 2011).

Websites

Barlow JP, ‘Declaration of the Independence of Cyberspace’ (1996) accessed