The Failure of the Rule of Law in Cyberspace? Reorienting the Normative Debate on Borders and Territorial Sovereignty
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The ultimate goal of this article is to suggest a different perspective on the issue of extraterritorial regulation in cyberspace. Between 1996 and 2002, over the course of several law review articles, professors David R. Johnson, David Post, and Jack L. Goldsmith engaged in a highly influential debate addressing the significance and legitimacy of physical, geographically-defined borders and territorial sovereignty in the regulation of cyberspace. At bottom, it was a contest between internal or indigenous regulation and the imposition of existing external regimes. At its heart lay two overarching areas of disagreement: First, descriptively, whether and to what extent the architecture of the Internet is borderless or boundary-destroying, so as to be resistant to regulatory regimes grounded in territorial authority; and second, normatively, whether and to what extent a nation may legitimately exercise its regulatory power extraterritorially, particularly in the context of online activity. Initially, this seemed a robust debate. But it narrowed predictably. The descriptive issue moved from platitudes of the Internet's inherent nature to a contest of choices and predicted technological advancement. The normative question became fundamentally a disagreement about the origins and limits of sovereign power, particularly as related to the regulation of extraterritorial activities having local effects, as well as the spillover effects of such regulation. Related to this fundamental question, and particularly relevant here, the participants ultimately disagreed as to the legitimizing effect of jurisdictional and choice-of-law principles; i.e., whether these jurisprudential mechanisms for resolving regulatory-overlap disputes adequately limit and resolve multiple, simultaneous, and competing claims of unilateral, extraterritorial regulatory power. This pushed the discussion back to the descriptive; to questions of functional identity, scale, effects, and (somewhat tangentially) consent. And here, it seemed to wither. This article acknowledges these debates and their importance, but suggests that by framing the argument as they did, their authors - particularly Johnson and Post - were pressed to untenable assertions that fatally undermined their position. Seeking to avoid a similar fate, here the underlying issues are approached from a slightly different perspective. Jurisdictional and choice-of-law principles are recognized, fundamentally, as expressions of the rule of law; devices by which conformity to the rule of law is to be actualized. But the term the rule of law has recently become so commonplace and pedestrian that its precise connection to these principles may be lost. Indeed, at times in their debate, professors Johnson, Post, and Goldsmith seem to talk around the rule-of-law concept, failing to step back to adequately examine the purposes, values, and virtues of law from which their arguments might ultimately flow. My intent is to reestablish this link through consideration of the more fundamental question; whether the governance of cyberspace by traditional laws, imposed by territorially-based sovereigns, conforms to the rule of law. I conclude that the imposition of territorially-based regulatory regimes in the governance of cyberspace fails to conform to the rule of law. But this is not the end of the inquiry. For if the rule of law fails in cyberspace, what then? Must we reform or recreate our regulatory system, or is conformity with the rule of law a less important virtue of legal systems than popular rhetoric might suggest? I begin in Section I by outlining the normative debate on the governance of cyberspace, borders and territorial sovereignty, focusing on the Johnson-Post-Goldsmith debate. I then seek to identify weaknesses in this approach. This provides a foundation upon which to reframe the debate in Section II, moving from a focus on the validity of sovereign power and its limits, to the relationship between individual autonomy and the purposes, values and virtues of law. Here, the central question is whether the governance of cyberspace by traditional sovereign legal systems conforms to the rule of law. Answering this question in the negative, Section III asks simply, what then? Is conformity to the rule of law a prerequisite of authority or simply one value among many, to be weighed against other values served by law and promoted, but without such exaggerated importance that it devalues other laudable social goals?
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