Jurisdiction in Cyberspace: A Theory of International Spaces

Abstract

Unfortunately, when the law confronts cyberspace the usual mode of analysis is analogy, asking not "What is cyberspace?" but "What is cyberspace like?" The answers are varied: a glorified telephone, a bookstore, a bulletin board. I propose that we look at cyberspace not in these prosaic terms, but rather through the lens of international law in order to give cyberspace meaning in our jurisprudence. The thesis of this paper is that there exists in international law a type of territory which I call "international space." Currently there are three such international spaces: Antarctica, outer space, and the high seas. For jurisdictional analysis, cyberspace should be treated as a fourth international space. In cyberspace, jurisdiction is the overriding conceptual problem for domestic and foreign courts alike. Unless it is conceived of as an international space, cyberspace takes all of the traditional principles of conflicts-of-law and reduces them to absurdity. Unlike traditional jurisdictional problems that might involve two, three, or more conflicting jurisdictions, the set of laws which could apply to a simple homespun webpage is all of them. Jurisdiction in cyberspace requires clear principles rooted in international law. Only through these principles can courts in all nations be persuaded to adopt uniform solutions to questions of Internet jurisdiction.

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