Prescriptive Jurisdiction over Internet Activity: The Need to Define and Establish the Boundaries of Cyberliberty

Introduction

Globalization occurs at the nexus of politics, culture, technology, finance, national security, and ecology.¹ "Globalization" refers to the increasingly "complex, dynamic legal and social processes" occurring throughout the world.² It is the development of a global mindset that challenges the traditional political, social, and economic characteristics of nations and has led to the "deterritorialization and reterritorialization of [vast] policy spaces."³ Many of the changes and challenges attributed to globalization rely on the exchange of information throughout the world, making "the flow of ideas across national borders" a key agent of globalization.⁴ Due to the increasing availability of personal computers and software, the Internet provides the ideal forum for information transfer.⁵

The Internet engenders "the notion of distributed power: decentralization, openness, possibility of expansion, no hierarchy, no center, no conditions for authoritarian or monopoly control."⁶ The Internet has become vital to the broader dynamics of organizing global society, "both economically and politically."⁷

One of the vital aspects of organizing global society has been individual liberty. With the introduction of the Internet, traditional notions of liberty are challenged. The global reach of information transfer requires examining liberty in its new form—"cyberliberty." Cyberliberty expands across all borders, affects all nations, and as of yet, has not been defined by any nation. This note recommends a definition of cyberliberty in order to provide a legal foundation for regulating conduct on the Internet. The definition is predicated upon freedom from the control and influence of states through their assertion of prescriptive jurisdiction, a liberty that has always been an essential element of sovereignty.⁸

Part I briefly describes how traditional international law principles of prescriptive jurisdiction have been applied to activities on the Internet. It then identifies some limits to these methods that arise from the unique characteristics of the Internet. Part II surveys philosophic conceptions of liberty, recognizing the implications of liberty on the Internet, and recommends a definition of cyberliberty that favors expansive liberty and clear expectations for Internet actors.

I. Prescriptive Jurisdiction over Internet Activity

Despite the unique quality of the Internet as a key agent of globalization, and some scholarly arguments that the Internet should not be regulated under traditional standards,⁹ jurisdiction over Internet-related activity is still generally tested under international jurisdictional law.¹⁰ Jurisdiction exists in three forms: jurisdiction to prescribe, to adjudicate, and to enforce.¹¹ The primary jurisdictional problem that arises in relation to the Internet as a platform of globalization is one of prescriptive jurisdiction. It is the application of a single state's laws to Internet content that gives rise to complication. For example, may State A prohibit citizens of State B, located in State B, from posting advertisements for purple farm tractors on the Internet simply because State A prohibits the sale of purple farm tractors? Questions of this sort have strong implications for the global character of the Internet.

A firm basis for jurisdiction to prescribe is required to justify the infringement of sovereignty that would accompany regulation of Internet content. As stated in the Permanent Court of International Justice's opinion in the Lotus case, "a state . . . may not exercise its power in any form in the territory of another state," and jurisdiction "cannot be exercised by a state outside its territory except by virtue of a permissive rule derived from international custom or from a convention."¹² As the Federal District Court for the Southern District of New York has noted,

The Internet is a worldwide phenomenon, accessible from every corner of the globe. [A defendant] cannot be prohibited from operating its Internet site merely because the site is accessible from within one country in which its product is banned. To hold otherwise would be tantamount to a declaration that this Court and every other court throughout the world, may assert jurisdiction over all information providers on the global World Wide Web.¹³

A. Traditional Bases for Prescriptive Jurisdiction

International law recognizes five sources of prescriptive jurisdiction: the nationality principle, the subjective territoriality principle, the objective...