112 Harv. L. Rev. 1680

Harvard Law Review

May, 1999

Developments in the Law--The Law of Cyberspace

*1680 VI. CYBERSPACE REGULATION AND THE DISCOURSE OF STATE SOVEREIGNTY

Copyright © 1999 Harvard Law Review Association

This Part focuses on a foundational principle of contemporary debates about Internet [FN1] regulation--the sovereign state. The seemingly borderless, transnational scope of Internet communications has made state sovereignty a common theme in commentaries discussing the propriety of Internet regulation. Often, state sovereignty concerns have prompted regulatory initiatives. China, for instance, has sought *1681 to insulate itself from western websites to protect its informational sovereignty. [FN2] Similarly, the United States has relied on the preservation of state sovereignty as a rationale for regulating exports of encryption technology [FN3] and for promoting national regulation of Internet gambling. [FN4] Appeals to state sovereignty, however, have also been made to justify restricting Internet regulation. For example, commentators and governments frequently claim that regulation of Internet activities that originate in another state is an illegitimate encroachment on that state's sovereignty. [FN5] More radical opponents of Internet regulation have seized upon this idea, arguing that cyberspace constitutes its own "state" over which territorial governments have no sovereign authority to enact regulations. [FN6] For other commentators, the transnational scope of the Internet has contributed to the dispersion of "sovereign" authority away from the state, making Internet regulations both ineffectual and illegitimate. [FN7]

In each of these instances, the concept of state sovereignty provides a stable, yet emotive, reference point for defining the scope of legitimate government authority. For many commentators and officials, a state either can assert sovereignty over Internet activities or it cannot; either a state acts to protect its sovereignty or it loses it. The concept of sovereignty, however, is seldom analyzed. This Part provides such an analysis of the concept as it is used in the regulatory debate and argues that assessments about the legitimacy of Internet regulation differ, in part, because of ambiguities inherent in the concept of sovereignty. *1682 To the extent that Internet regulations demand an evaluation of a state's legitimate authority, this Part concludes that an alternative understanding of the state is required.

Drawing on international relations theory, the assumptions of individuals engaged in the Internet regulatory debate, and popular perceptions about the changing role of the state, section A distills three conceptions of sovereignty that have informed discussions about Internet regulation. These positive conceptions of sovereignty function primarily to assess when state sovereignty exists, but supporters and opponents of Internet regulation have also applied them normatively to determine whether a state regulates legitimately. Because of the malleability of the assumptions underlying each conception, however, arguments about Internet regulation that rest on a normative approach to state sovereignty prove indeterminate or contradictory.

In an effort to avoid the problems caused by reliance on traditional notions of state sovereignty, section B advocates adopting a liberal- constructivist approach to domestic politics to examine government regulation of the Internet. This approach shifts the analysis of Internet regulation away from generalized discussions about the "state" and toward a focused consideration of the manner in which government regulation "constructs" collective identity and allocates power among competing normative perspectives in a jurisdiction. Section B concludes that adopting a liberal-constructivist framework forces judges and policymakers to confront the implications of Internet regulation for domestic social relations and community identity.

Finally, section C examines how the liberal-constructivist paradigm can inform a contemporary area of debate about the proper relationship between government authority and cyberspace: personal jurisdiction in Internet-related cases. Courts' current confusion about the exercise of jurisdiction over nonresident website operators stems largely from indeterminate conceptions of sovereignty embedded in traditional personal jurisdiction doctrine. Adopting a liberal-constructivist framework avoids the ambiguity of these concepts and enables a more thorough assessment of the implications of exercising jurisdiction in particular cases. To the extent that courts' determinations of jurisdiction over website activities would differ, such differences would result from specific policy considerations rather than the formalistic application of an indeterminate doctrine.

A. The "Sovereign" Discourse

An examination of the Internet regulatory debate reveals three positive conceptions of state sovereignty: the realist, the representational, and the postmodern. Each conception flows from a different set of assumptions about the nature of the state system, with each set of assumptions reflecting academic and popular attitudes toward the *1683 role of the modern state. This section shows how commentators and governments frequently apply these concepts normatively to assess the legitimacy of Internet regulations. In the process, however, they subject their arguments to the indeterminacies of the assumptions that underlie each conception.

1. The Realist Conception.--The realist conception of sovereignty stems from the realist theory of international politics. Two fundamental assumptions of the realist theory are that states are the primary actors in the international system and that they act rationally to maximize their power. [FN8] A state's territorial boundaries fulfill a crucial role in this theory by circumscribing the extent of state power. For realist international lawyers, control over a defined territory is "the first criterion of statehood, an indispensable prerequisite for participation in the international system." [FN9] According to this theory, states are "sovereign" to the extent that they are the supreme authority within a given territory. [FN10] When applied normatively, the realist conception asserts that a "sovereign" state possesses sole jurisdiction over its citizens and internal affairs. Any restriction of its exclusive jurisdiction within its own territory appears as an illegitimate "diminution of its sovereignty to the extent of the restriction." [FN11]

States seeking to regulate the Internet usually rely on realist assumptions. These assumptions inform two of the most common principles for asserting jurisdiction: the territoriality principle and the effects principle. [FN12] Under the territoriality principle, a state has authority to regulate the transmittal of information across its borders and the use of that information by individuals within its territory. [FN13] This principle underlies China's regulatory initiative to prevent "detrimental information" from entering its territory via the Internet. [FN14] Further, states rely on the territoriality principle to regulate in-state hardware and software used in Internet communications. [FN15] For example, Bavaria used this aspect of the principle to enforce its antipornography *1684 laws against CompuServe's Munich office after the service provider refused to shut down over two hundred Usenet newsgroups that contained pornographic content. [FN16]

States rely on the effects principle in applying their domestic laws to out- of-state Internet activity. For example, the Minnesota Attorney General has asserted jurisdiction over nonresident individuals who use the Internet to "cause a result to occur in Minnesota." [FN17] The Attorney General's peremptory assertion of jurisdiction is emblematic of the realist view of regulatory power: because control over territory assumes the legitimacy of state actions taken inside that territory, states need not explicate the basis for their jurisdictional assertions.

Despite government reliance on realist logic, the realist concept of sovereignty fails to provide a normative basis for Internet regulation. Indeed, the realist conception supports many of the arguments against government regulation of the Internet. During debates about the Internet Tax Freedom Act, [FN18] state and local governments frequently argued that the Act was illegitimate because it infringed on their sovereignty over commercial transactions occurring within their jurisdictions. [FN19] Similarly, government officials have relied on realist assumptions to restrict the application of domestic laws to Internet activities out of respect for states' jurisdictional limits. [FN20]

Not surprisingly, much of the scholarship advocating Internet self-regulation also relies on realist logic. In their ground-breaking article on cyberspace self-governance, [FN21] David Johnson and David Post employ realist assumptions to reveal the illegitimacy of territorial regulation of the Internet. They begin by articulating the realist premise that geography-based laws "make sense" when a government has "[c]ontrol over physical space, and the people and things located in that space" [FN22] and when actions have a primary effect on persons and things within a *1685 single jurisdiction. [FN23] The Internet, however, undermines this system because electronic activity occurs across multiple jurisdictional boundaries and in a form that governments are incapable of effectively controlling. [FN24] Johnson and Post note that the assertion of jurisdiction by the U.S. over Internet-based activities only lays the foundation for an argument that "any other sovereign can regulate the activities of U.S. companies operating in Cyberspace from a location physically within the United States." [FN25] Moreover, the effects of online activities are not tied to geographic locations; rather, they exist "everywhere, nowhere in particular, and only on the Net." [FN26] Consequently, "no physical jurisdiction has a more compelling claim than any other to subject these events exclusively to its laws." [FN27]

Johnson and Post also illustrate the manner in which advocates of Internet self-regulation rely on realist assumptions to assert the legitimacy of deferring to cyberspace as an independent jurisdiction. Consistent with the realist conception, they use the traditional characteristics of a territorial state to describe cyberspace. A "legally significant border" exists between "Cyberspace" and the "real world" that is "just as distinct as the physical boundaries between our territorial governments--perhaps more so." [FN28] Within this space, "responsible law-making institutions" [FN29] have arisen to control online behavior: system operators (sysops) condition access on users' respecting defined rules of behavior, [FN30] communities of "Cyberspace citizens" informally proscribe conduct, [FN31] and online dispute resolution mechanisms address larger disputes. [FN32] Their realist focus on territorial control therefore leads *1686 them to conclude that states "should defer to this new form of self-government." [FN33]

Thus, Johnson and Post attempt to flip the realist justification for regulatory authority by establishing cyberspace as a separate, self-governing "territory." Nonetheless, their reliance on realist assumptions to define the structure of a proper regulatory regime suffers from the same normative indeterminacy that has frustrated many government officials. First, their assertion that cyberspace is immune from territorial regulation is susceptible to an empirical rebuttal: realist commentators who disagree with them need only refer to examples of successful Internet regulations to refute their argument. [FN34] Second, realist arguments about cyberspace self-government implicitly support indirect government regulation of the Internet. As James Boyle has shown, governments can shape and develop the Internet through "privately deployed, materially based, technological methods of surveillance and censorship." [FN35] In particular, the United States government has frequently eschewed direct regulation in favor of subsidizing filtering software and hardware to achieve privately what it lacks the constitutional power to achieve directly. [FN36] Yet because this type of regulation enrolls private actors as enforcement agents, it comports with a realist understanding of Internet self-regulation. As this example suggests, it is not the state but the realist conception that lacks the capacity to contain the Internet.

2. The Representational Conception.--The representational conception of sovereignty originates in traditional liberal ideology, which views the individual as the most important unit of analysis in the international system. [FN37] The state plays a secondary role as a representative institution composed of numerous individuals representing a multitude of interests. [FN38] Although liberal theorists disagree about the *1687 extent to which a sovereign state actually "represents" domestic society, [FN39] proponents of the representational conception assume that a truly sovereign state represents the general will of its populace. [FN40] This inherently normative assumption suggests that "only a State that respects human rights and the principle of democratic representation is legitimate and therefore entitled to represent citizens internationally." [FN41] Moreover, the legitimacy of applying a state's laws to conduct that occurs in another state's territory depends on whether such laws "would prevent [that] State from functioning as a sovereign; that is, the extent to which such generally applicable laws would impede a state government's responsibility to represent and be accountable to the citizens of the State." [FN42]

Government officials have often relied on the representational conception's assumptions to support Internet regulations. In particular, officials have relied on its assumptions to support Internet regulations where online activities appear to undermine a sovereign's ability to represent its populace. While introducing the Internet Gambling Prohibition Act of 1997, [FN43] Representative Goodlatte noted:

The ability of the World Wide Web to penetrate every home and community across the globe has both positive and negative implications--while it can be an invaluable source of information and means of communication, it can also override community values and standards, subjecting them to whatever more may or may not be found online. In short, the Internet is a challenge to the sovereignty of civilized communities, States, and nations to decide what is appropriate and decent behavior . . . . The legislation I am introducing today will protect the right of citizens in each State to decide through their State legislatures if they want to allow gambling within their borders and not have that right taken away by offshore, fly-by-night operators. [FN44] Thus, one can argue that Internet regulations are necessary to protect state sovereignty.

*1688 Yet the assumptions underlying the representational conception also support arguments opposing Internet regulations. During the Gambling Prohibition Act's debate, critics of the Act countered arguments about the need to protect states' ability to represent their citizens with similar arguments that the Act would inhibit the ability of Indian nations to represent their own populations who might favor online gambling. For example, Senator Biden criticized the proposed regulations as continuing Congress's hypocrisy in formally recognizing the sovereignty of Indian nations when distributing financial assistance but denying their sovereignty "whenever they do anything we don't like." [FN45]

Asthe debate over gambling suggests, a representational conception of sovereignty shares the realist conception's incapacity to provide a normative justification for Internet regulation. This failure results from the representational conception's underlying circularity. In numerous contexts, a state's populace may pursue activities that affect populations in other states or may desire regulations that restrict activities in foreign jurisdictions. In such cases, requiring one sovereign state to respect the "sovereignty" of another state presupposes that one is more sovereign than the other--a presumption that raises the question: what makes a state sovereign? Moreover, a normative application of a representational conception fails to explain Internet regulations in nondemocratic governments. Indeed, under a representational conception of sovereignty, these countries possess no sovereignty for the Internet to threaten.

3. The Postmodern Conception.--The postmodern conception of sovereignty combines several views about the dispersion of authority in an era of increasing globalization. Many of these viewpoints appear in the "New Medievalism"--an approach to international relations that asserts "a secular reincarnation of the system of overlapping or segmented authority that characterized" pre-Reformation Europe. [FN46] As the world has become increasingly integrated, it is argued, authority patterns have dispersed into a variety of overlapping layers, much like the overlapping medieval authorities of emperor, pope, prince, and *1689 feudal lord. [FN47] New Medievalists note that states have gradually ceded sovereignty over significant social and economic issues to supranational institutions including the European Union and the World Trade Organization. [FN48] Likewise, technologies such as the Internet have enabled individuals to create "new commonalties of identity that cut across national borders and challenge governments at the level of individual loyalties." [FN49] Normatively, this dispersion provides a "flexible, multilayered approach to political-territorial governance" [FN50] that can better address current transnational issues. [FN51] By allowing individuals to form freely chosen, transnational communities, this dispersion also permits the full realization of democratic ideals. These interest-based communities encourage political activism directed to achieve commonly held goals [FN52] and permit individuals to define themselves autonomously--to "shed the drab single-hued identities deterministically front-loaded onto their lives by the accidents and myths of birth and blood." [FN53]

Many proponents of cyberspace sovereignty have relied on postmodern assumptions to assert the legitimacy of cyberspace self-governance. In addition to noting the demise of the sovereign state, these advocates assert that cyberspace has the capacity to realize a purer form of democratic government. Johnson and Post, for example, point to the "erosion of national sovereignty in the modern world and the failure of the existing system of nation-states to cultivate a moral connection between the individual and the community (or communities) in which she is embedded." [FN54] Through the dispersion of sovereign authority, however, the Internet provides "[a] more promising basis for *1690 a democratic politics." [FN55] In particular, the highly heterogeneous character of cyberspace facilitates the development of separate "spheres of activity," each with its own set of rules. [FN56] In contrast to a territorial government, which assumes a citizen's consent through his continued presence, cyberspace permits users to exit easily from disagreeable sets of rules, "thus providing a more legitimate 'selection mechanism' by which differing rule sets will evolve over time." [FN57] Further, the segmentation of cyberspace and the ability to "fractionat[e]" one's online identity permit individuals to abide by rule sets that correlate with their own multi-variegated selves. [FN58] For many advocates of cyberspace sovereignty, imposing government regulations in the face of this "social contract" is simply tyranny. [FN59]

Commentators adopting postmodern logic, however, have often contested the potential of the Internet to realize democratic ideals. In particular, commentators have focused on the potential of real world power differentials to shape online social relations. In studying the development of Internet intellectual property protection, Keith Aoki notes that intellectual property owners' "privatization" of the Internet has created significant disparities of wealth. "[M]apping electronic space as 'private' creates conditions under which a privately constructed and owned electronic information system . . . embod[ies] the essential features of a private enterprise economy: inequality of income along with the production of goods and services for profit." [FN60] Similarly, *1691 Margaret Chon argues that real world power disparities, stemming from geographical or cultural privilege, continue to exist on the Internet, making some users "more free to contract than others." [FN61] This characteristic of cyberspace facilitates "private acts of oppression," which governments are obligated to address. [FN62] These concerns may in part motivate advocates of cyberspace government to hedge their arguments; as Johnson and Post note, the authority of cyberspace government should be limited to areas "unrelated to vital and localized interests of a territorial government." [FN63]

Ultimately, arguments for cyberspace governance based on postmodern assumptions support the same realist conception of sovereignty that they seek to repudiate. Within the postmodern conception exists a fixation with the traditional, territorial concepts of "sovereignty" that bolsters realist modes of thinking. Despite averring the dispersion of sovereignty, proponents of cyberspace governance cannot completely break loose from its influence, identifying themselves as a singular "Cyberspace" [FN64] even as they celebrate the multitude of separate communities. Moreover, the postmodern depiction of the Internet as a space in which individuals may pursue any and all interests seems to sustain governments' concerns that the Internet represents a "lawless" realm in need of "line drawing." [FN65] The end result is a discourse of sovereignty that imbues the Internet regulation debate with significant rhetorical flare, yet is bereft of persuasive normative arguments about particular regulatory regimes.

B. Reassessing Cyberspace, Sovereignty, and the State

Notwithstanding the arguments opposing Internet regulation, governments around the world seem determined to regulate cyberspace. At least twenty countries currently restrict access to Internet websites, *1692 and more than a dozen are considering restrictions. [FN66] Within the United States, the number of Internet-related bills introduced in Congress has almost doubled in the past two years. [FN67] What might explain these attempts to regulate the Internet aside from indeterminate appeals to sovereignty? This section argues that adopting a liberal-constructivist approach to domestic politics provides insights into the motivation of states to regulate the Internet and, more importantly, about the implications of such regulations.

Liberal international relations (IR) theory posits three core assumptions about the international system. [FN68] First, the system's fundamental actors are individuals and private groups who seek to advance differentiated interests through collective action. [FN69] The theory rejects the notion of an automatic harmony of interests among individuals in society; rather, material scarcity, conflicting values, and variations in societal influence promote conflicting social goals and the willingness to use coercion to achieve them. [FN70] Second, states (and other political institutions) represent some subset of domestic society whose interests define state preferences. [FN71] According to this view, the state is a representative institution that is constantly subject to capture and recapture by individuals and groups who turn to the state to effectuate their particular interests. [FN72] Third, state behavior reflects a state's attempt to realize its preferences under the constraints imposed by the preferences of other states. [FN73] When a state's preferences are harmonious with those of other states, there are incentives for the full realization of its preferences; when they conflict, the potential for interstate tension encourages policy negotiation or, at times, interstate conflict. [FN74]

Liberal IR theory can be combined with "constructivist" notions of social identity formation to create an account of domestic politics and interstate relations that proves much more useful in analyzing Internet regulations than existing conceptions of sovereignty. [FN75] Liberal IR the *1693 ory's focus on a society's multiple, competing interests suggests that a state (or other political entity) must continually "construct" itself as a unified political community. Only by constructing a unified community that has discrete, stable interests can dominant social groups hope to legitimize their capture of governmental institutions and turn their interests into community preferences. [FN76] Furthermore, societal criteria such as ethnicity, cultural traits, and history "are themselves fuzzy, shifting and ambiguous," [FN77] making it difficult to articulate clearly who the state actually represents. [FN78] Under this "liberal-constructivist" approach, law functions in two ways. First, as a coercive instrument of state power, it allows social groups to allocate power among their competing normative perspectives. [FN79] Second, it enables the dominant social group to articulate an authoritative vision of the state--to construct the borders of an "imagined" community. [FN80]

The Internet triggers government regulation for both of these reasons. In the first instance, the Internet can inject perspectives into a political community that conflict with the dominant social group's interests, thereby requiring legal resolution. United States v. Thomas [FN81] provides a vivid example of this type of conflict in the context of Internet pornography. The defendants, operators of a California bulletin board service, were convicted under a Tennessee obscenity statute after a federal agent in Memphis downloaded allegedly obscene images from the defendants' service. [FN82] On appeal, the defendants argued that the lower court incorrectly applied the Memphis community's standard of obscenity. [FN83] They reasoned that "the computer technology used here requires a new definition of community, i.e., one that is based on the broad-ranging connections among people in cyberspace *1694 rather than the geographic locale of the federal judicial district of the criminal trial." [FN84] By juxtaposing the two standards, the argument highlighted the Internet's facilitation of conflict between the normative perspectives held by a community's dominant social group and those held by the members of an outside community--in this case, a "virtual community."

Such conflicts will require a legal resolution because of the continued importance of geography in constructing values. Despite postmodern assertions that non-geographic communities will replace "chats across white picket fences," [FN85] evidence suggests that an inherent connection exists between geography and cultural values. [FN86] Even on the Internet, activity generally centers around geographically-based interests. Recent studies of "virtual communities," for instance, show that most interactions are between people who are seen in-person at work or at leisure, [FN87] and website providers have responded to increased demands for regional and local focuses. [FN88] Given the continued importance of geographic communities, individuals are likely to turn first to *1695 their community's laws for resolution of conflicts that occur in cyberspace but manifest themselves in real-space.

In addition, legal resolution of these conflicts permits the dominant social group to articulate a vision of the political community's collective identity and values. Here, the object of the regulation is the community as a whole. In Thomas, the court's upholding of the local community standard enabled Memphis residents to articulate a unified vision of their community. Although there was initial opposition to the Thomases' convictions, [FN89] the jury's verdict established that Memphis spoke with one voice about the issue of Internet pornography. Commenting on the outcome of the case, a Memphis Assistant U.S. Attorney noted, "[w]hen the case is brought and decided by a judge or jury, that's when the community speaks." [FN90] For the broader Memphis community, the verdict redefined Memphis as "the country's porn-fighting capital." [FN91]

A liberal-constructivist approach also suggests that there are significant limitations to a government's willingness to regulate the Internet. According to the third assumption of liberal theory, a state is less inclined to pursue its preferences when doing so imposes negative externalities on dominant social groups in other states. [FN92] The current architecture of the Internet, however, necessarily creates negative externalities with Internet regulations. As discussed above, Germany's regulation of CompuServe's Usegroups forced CompuServe to shut down approximately two hundred groups, affecting subscribers in 147 countries. [FN93] Regulation in the face of such externalities suggests that global virtual communities are of minor concern to officials pursuing state preferences. In the cases of CompuServe and the Thomases, purchasers of Internet pornography--even on a global scale--did not constitute a sufficiently dominant social group to create risks of costly interstate conflict. In contrast, a state will likely refrain from regulating if doing so would impose externalities on socially dominant groups. Thus, it is not surprising that, despite asserting its right to regulate U.S. mutual fund websites under its domestic law, the British government has refrained from taking enforcement action after recognizing a conflict with United States regulations. [FN94]

*1696 A liberal-constructivist approach also provides a clearer assessment of the implications of Internet regulations. First, its focus on the societal competition of interests reveals that both Internet and non-Internet regulations privilege some perspectives while subordinating others. Through the translation of privileged perspectives into a community's preferences, such privileging results in the construction of a community identity achieved by "selecting, editing, and unifying disparate elements--the creation of a sameness out of a multitude of differences." [FN95] Such a unified image "hinders an individual's ability to express multiple solidarities or to dissent from a determination viewed as neither collective nor good." [FN96] Whereas these regulatory costs ordinarily affect only a particular jurisdiction's residents, the Internet allows a community to impose these costs on distant populations and individuals that might adhere to differing normative frameworks. Moreover, because these individuals may be globally dispersed, a liberal-constructivist approach suggests that the international system imposes few constraints on a community's desire to enact such regulations.

Second, the emphasis on a community's construction of identity suggests that regulations may nevertheless prove beneficial in creating social stability and facilitating the formation of group values and interests. Just as the Thomas verdict enabled a community to articulate a collective vision of itself, it also provided a means for defining and communicating dominant group values. [FN97] Yet Internet regulations may impede other communities from similarly constructing collective identities and from forming such values. [FN98] Indeed, permitting the flow of controversial information may enable some socialgroups to articulate a commitment to freedom of expression. [FN99] Germany's prohibition *1697 of pornographic content thus ignored the extent to which the presence of such content--even if not substantively desired-- permits social groups to affirm and develop their own values. In time, such regulations will drive the development of Internet filtering technology that will permit geographical targeting of activities; [FN100] but in the meantime, assessing the legitimacy of a regulatory regime must entail recognizing the regulatory costs for individuals and social groups.

C. The Issue of Personal Jurisdiction

Court opinions addressing the scope of personal jurisdiction in Internet cases reflect the same formalist reliance on the normative aspect of state sovereignty as the debates about cyberspace regulation. As in the context of the regulatory debate, the normative indeterminacy of "sovereignty" has contributed to persistent confusion among the courts about the legitimacy of establishing jurisdiction over Internet activities. The following section addresses the role that sovereignty has played in this confusion and how a liberal-constructivist approach might clarify the issues involved in the cases.

1. Personal Jurisdiction and the Internet.--A primary source of confusion for courts' assessing the scope of their personal jurisdiction in cyberspace results from realist assumptions inherent in contemporary personal jurisdiction doctrine. [FN101] According to traditional civil procedure lore, the Supreme Court abandoned these realist assumptions in International Shoe v. Washington [FN102] in favor of a more flexible "minimum contacts" test. [FN103] Yet as numerous commentators have noted, [FN104] the "minimum contacts" test remains quintessentially territorial, inquiring whether a "defendant purposefully avails itself of the privilege of conducting activities within the forum State." [FN105] Even *1698 when the Court has sought to depart from the territorial aspect of the doctrine, it has relied on realist principles. For example, in Calder v. Jones, [FN106] the Court allowed the exercise of jurisdiction over a nonresident defendant by adopting the inherently realist "effects" doctrine. [FN107]

The Court's attempt to connect jurisdiction to a state's territorial authority has divided lower courts over the proper interpretation of personal jurisdiction in cases in which a defendant "contacted" a forum state solely through a website. [FN108] An initial point of contention for courts has been whether a defendant falls within the "doing business" prong or the "effects" prong of a state's long-arm statute. [FN109] Courts addressing allegedly tortious acts have generally relied on the effects prong, [FN110] but they have differed over the "location" of a harm. For instance, in Bensusan Restaurant Corp. v. King, [FN111] the plaintiff, New York's Blue Note Club, alleged that the defendant, the owner of a Missouri club of the same name, had diluted its trademark by advertising on a Missouri-based website. [FN112] In addressing where the "passing off" occurred, the court held that to the extent that confusion about the relationship of the clubs existed because of the website, it occurred in Missouri rather than in New York. [FN113] In contrast, other courts considering online trademark disputes have found the location of the plaintiff's harm to be in the state in which the plaintiff accessed a website rather than in the state in which the site was operated. [FN114] Courts interpreting a "doing business" prong have similarly divided *1699 over whether maintaining a website constitutes "doing business" in the state in which the defendant operates the website or the state in which the plaintiff accessed the website. [FN115]

The realist aspect of personal jurisdiction has also divided courts applying due process analysis in Internet-related cases. In particular, courts have applied different interpretations of the "purposeful availment" standard in cases involving Web-based activities. Several courts have found that a defendant's website is a sufficient basis for upholding jurisdiction based on the theory that the defendant, through her website, "purposefully availed" herself of the benefits of all fifty states. [FN116] Other courts have declined jurisdiction over Web-based contacts because of the risk of illegitimately expanding the state's prescriptive authority. [FN117] Over the past two years, however, a moderate consensus has emerged: courts assessing personal jurisdiction examine the level of "interactivity" on a particular website and the presence of any additional forum-related activity. [FN118] The mere use of a "passive" website fails to prove that a defendant "purposefully availed" herself of the forum state. [FN119]

2. Reconstructing Personal Jurisdiction in Internet-Related Cases.--A liberal-constructivist vantage point would significantly change the focus of the personal jurisdiction analysis of online activities. Rather than relying on concepts of "minimum contacts" or "interactivity," a liberal-constructivist approach would use two primary considerations to resolve personal jurisdiction inquiries: how would the determination allocate power between competing normative perspectives, *1700 and how would it affect the ability of other communities to construct identities and interests?

First, because the determination of personal jurisdiction may affect the substantive outcome of a lawsuit, such a determination allocates power between competing normative perspectives within a jurisdiction. [FN120] Even before the Internet existed, this issue arose in a variety of contexts such as consumer action claims. For instance, in McGee v. International Life Insurance Co., [FN121] the Supreme Court empowered consumer interests by upholding a California court's finding of personal jurisdiction over a nonresident insurance company. The Court reasoned that "residents would be at a severe disadvantage if they were forced to follow the insurance company to a distant State in order to hold it legally accountable." [FN122] In other contexts, the Court has shifted the scales in favor of business interests. [FN123] In Carnival Cruise Lines, Inc. v. Shute, [FN124] the Court upheld a forum selection clause that required cruise ticket purchasers to file all lawsuits in Florida. [FN125] The Court refused to strike down the clause on the basis of a lack of bargaining parity, [FN126] and instead focused on the efficiency gains such clauses provided to businesses. [FN127]

The Internet magnifies this issue because of the Internet's expansive reach and its accessibility to individual users. [FN128] Because of these characteristics, personal jurisdiction determinations are more likely to affect the substantive outcome of Internet disputes than other disputes. For the operator of a website, an adverse jurisdictional finding might lead to suits in multiple, distant forums, thereby significantly increasing *1701 the cost of litigation. For parties seeking to enforce their rights on the Internet, an adverse jurisdictional finding might require them to initiate lawsuits across the country, similarly making litigation excessively costly. Thus, by denying personal jurisdiction in Bensusan, the court allocated power away from New York trademark owners to nonresident, Web-based infringers of those trademarks. In contrast, the Ninth Circuit's upholding of California's jurisdiction over an Illinois-based Web "pirate" allocated power in favor of Californian trademark owners. [FN129] In neither case, however, did the court directly address the reasons for favoring one perspective over the other.

A liberal-constructivist approach would seek a more transparent assessment of the competing normative perspectives at issue. A notable illustration of such an approach appeared in Digital Equipment Corp. v. AltaVista Technology, Inc. [FN130] In Digital, the Massachusetts district court directly addressed the two competing normative perspectives in considering whether it could exercise personal jurisdiction over the owner of a California-based website that allegedly diluted the plaintiff's trademark. The court expressed concern about "forc[ing] corporations that do business over the Internet, precisely because it is cost-effective, to now factor in the potential costs of defending against litigation in each and every state; anticipating these costs could make the maintenance of a Web-based business more expensive." [FN131] Nonetheless, the court noted that it was "troublesome to allow those who conduct business on the Web to insulate themselves against jurisdiction in every state, except in the state (if any) where they are physically located." [FN132] After framing the issue as a competition between these two perspectives, the court could better evaluate the consequences of its decision to grant jurisdiction. [FN133]

In addition to focusing on the effect of personal jurisdiction determinations on allocations of power, a liberal-constructivist approach would also examine the manner in which such determinations affect a community's ability to define itself. The process of self-definition consists of two elements. First, a community defines itself through the articulation of collective identity. Second, this articulation, in turn, shapes the community's underlying values and interests. [FN134] In the personal jurisdiction context, a court's grant of jurisdiction allows a community to articulate its collective identity through the resolution of a particular legal conflict; however, it also prevents other courts from hearing the same case. The zero-sum nature of personal jurisdiction, *1702 in part, led the Supreme Court to permit the evaluation of "the forum State's interest in adjudicating the dispute" [FN135] as part of the reasonableness prong of the personal jurisdiction test.

The Internet complicates this understanding of personal jurisdiction because of the ease with which one community may impede the ability of other communities to construct their identities. A finding of personal jurisdiction in an Internet-related case enables a community to resolve a conflict in accordance with its preferences, but in so doing, it elevates these preferences over those that exist in other communities. In Blumenthal v. Drudge, [FN136] for example, the plaintiffs sought jurisdiction in the District of Columbia over the writer of an online political magazine based in California that had allegedly defamed them in a series of articles published on the Internet. [FN137] The defendant's objection to jurisdiction was undoubtedly grounded in a belief that the Washington, D.C., community's values could potentially influence the outcome of the case. In particular, the distinct population that resided within the court's jurisdiction most likely shared a different normative perspective on political satire than residents of an alternative forum. [FN138] As in Thomas, the court's jurisdictional grant elevated the District of Columbia's preferences above those of other communities that might view the conduct differently. Similarly, the jurisdictional grant potentially altered the substance of the community's dominant values: first, by providing a means for Washington, D.C., residents to "speak with one voice," it allowed for an affirmation of the dominant group's values and, second, by imposing costs on the online-publication of political satire, it affected the quality and quantity of the information through which the group develops such values.

The Blumenthal court's reliance on territorial terminology obscured the manner in which its holding effectively imposed the District of Columbia's values on the rest of the political satire-writing world, potentially shaping those values as it did so. Although the court noted *1703 the "non- geographic nature of communicating via the Internet," [FN139] it found jurisdiction on the basis of the defendant's use of an "interactive" website and his additional forum-related activities. [FN140] According to the court, the defendant had "engaged in a persistent course of conduct in the District of Columbia." [FN141] Behind this seemingly objective finding, however, the court failed to explain its choice to impose one community's normative framework over all others. Had it viewed the personal jurisdiction issue through a liberal-constructivist lens, the court might have directly confronted the significance of its decision: What was the importance of allowing the court's local community to define itself through the case at issue compared to the importance of allowing another community this opportunity? To what extent did elevating a single community's values affect the development of those values both inside and outside the community? What was the importance, if any, of allowing the online magazine to operate as a forum for dissent from the community's normative framework?

The proposal advanced here elicits a different understanding of the issues involved in a personal jurisdiction inquiry in Internet-related cases. Faced with an Internet-related case, the decisionmaker would not be able to justify her holding by invoking the indeterminate categories of "minimum contacts" or "sovereignty" when adjudicating particular claims. Rather, she would have to recognize her decision as a normative choice and consider the issue on its merits.

D. Conclusion

The Internet forces us to face anew the tension between pluralism and order. By placing ideas in contact with people, the Internet accentuates the diversity of perspectives that characterizes our world. Yet in so doing, it highlights the difficulties that arise as communities--both those delimited by jurisdictional borders and those defined by commonalties of interests--struggle to define themselves. In the context of Internet regulation, the law must recognize the role it plays in shaping the outcome of these struggles.

The multitude of conflicts that can arise because of the Internet suggests that order might require national uniformity; only by imposing uniform rules will judges know how to resolve conflicts that arise between communities. The lessons of the Internet, however, suggest that "lawless" pluralism may have value that proponents of order frequently overlook. If individuals differentiate their normative orders according to their localities, race, gender, or creeds, then an unregulated Internet may provide a valuable asset in decreasing the social *1704 costs associated with the hegemonic effect of law. Nevertheless, for those individuals who identify themselves primarily on the basis of shared, local norms, either an unregulated Internet or nationally directed regulations may entail other social costs.

In the end, this conception of Internet regulation reveals not the "answer," but the persistent question about how to balance pluralism and order within a territorial state.

[FN1]. The Internet is only one of several global networks including BITNet, Usenet, FidoNet, and AT&T mail. See Linda M. Harasim, Global Networks: An Introduction, in Global Networks 3, 6 (Linda M. Harasim ed., 1993). I adopt the conventional term "Internet" to refer to this system of networks.

[FN2]. See Peter H. Lewis, Limiting a Medium Without Boundaries, N.Y. Times, Jan. 15, 1996, at D1. China controls access to the Internet through centrally regulated servers. See Jack Goldsmith, Against Cyberanarchy, 65 U. Chi. L. Rev. 1199, 1227 (1998). The recent indictment of a Chinese computer engineer for selling 30,000 Chinese e-mail addresses to a Washington-based Chinese publication underscored the relationship between sovereignty and regulation in China. The engineer was convicted of "inciting the subversion of state sovereignty." John Pomfret, Chinese Sentenced in Internet Case, Wash. Post, Jan. 21, 1999, at A19.

[FN3]. See 143 Cong. Rec. S6724-25 (daily ed. June 27, 1997) (statement of Rep. Burns) (arguing that without encryption technology regulations, "our national security and sovereignty will surely be threatened").

[FN4]. See infra pp. 1687-88.

[FN5]. See, e.g., American Libraries Ass'n v. Pataki, 969 F. Supp. 160, 177 (S.D.N.Y. 1997) (holding that a New York law that criminalized the dissemination of obscene materials to minors unconstitutionally encroached "upon the sovereignty of New York's sister states [and was] per se violative of the Commerce Clause").

[FN6]. John Perry Barlow, co-founder of the Electronic Frontier Foundation (EFF), made the seminal statement to this effect:

Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of the Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather.

John Perry Barlow, A Declaration of the Independence of Cyberspace (visited Apr. 19, 1999) <http://www.eff.org/pub/Publications/John_Perry_Barlow/barlow_ 0296.declaration> (on file with the Harvard Law School Library).

[FN7]. See infra p. 1689-90.

[FN8]. See Paul R. Viotti & Mark V. Kauppi, International Relations Theory: Realism, Pluralism, Globalism 35 (2d ed. 1993).

[FN9]. Id. at 723-24.

[FN10]. See F.H. Hinsley, Sovereignty 26 (1966).

[FN11]. The Schooner Exch. v. M'Faddon, 11 U.S. (7 Cranch) 116, 136 (1812).

[FN12]. See Stephan Wilske & Teresa Schiller, International Jurisdiction in Cyberspace: Which States May Regulate the Internet?, 50 Fed. Comm. L.J. 117, 129-42 (1997). The territoriality principle grants a state jurisdiction to prescribe law with respect to "conduct that, wholly or in substantial part, takes place within its territory." Restatement (Third) of Foreign Rela-tions Law s402(1)(a) (1987). The effects principle grants a state jurisdiction to regulate "conduct outside its territory that has or is intended to have substantial effect within its territory." Id. s402(1)(b).

[FN13]. See Jack L. Goldsmith, The Internet and the Abiding Significance of Territorial Sovereignty, 5 Ind. J. of Global Legal Stud. 475, 476 (1998).

[FN14]. Lewis, supra note 2, at D1.

[FN15]. See Goldsmith, supra note 13, at 482.

[FN16]. See Nathaniel Nash, Holding CompuServe Responsible, N.Y. Times, Jan. 15, 1996, at D4. CompuServe initially complied with a Bavarian order to shut down the offensive groups, but later reopened the sites. See Wendy R. Leibowitz, National Laws Entangle the 'Net: It's a Small, Small, Litigious Web, Nat'l L.J., June 30, 1997, at B7. A Bavarian court convicted CompuServe's German manager of violating German antipornography laws, imposing a two-year suspended sentence and fining the manager $56,200. See Dale M. Cendali & Rebecca L. Weinstein, Personal Jurisdiction in Cyberspace: Internet Activity Could Subject Parties to Suit, N.Y.L.J., July 20, 1998, at S1.

[FN17]. Statement of Minnesota Attorney General on Internet Jurisdiction (visited Apr. 19, 1999) <http://www.jmls.edu/cyber/docs/minn-ag.html> (on file with the Harvard Law School Library).

[FN18]. Internet Tax Freedom Act of 1998, Pub. L. No. 105-277, tit. 9, 112 Stat. 2681, 2719-26 (1998).

[FN19]. See Bill Pietrucha, Battle Lines Form on Tax Freedom Act, Newsbytes News Network, Feb. 2, 1998, available in 1998 WL 5029262 (quoting a city council member who declared the Internet Tax Freedom Act to be "a significant infringement on state and local sovereignty").

[FN20]. See infra p. 1696.

[FN21]. See David R. Johnson & David Post, Law and Borders--The Rise of Law in Cyberspace, 48 Stan. L. Rev. 1367 (1996).

[FN22]. Id. at 1369.

[FN23]. See id.

[FN24]. See id. at 1370-74 ("Because the Net is engineered to work on the basis of 'logical,' not geographical, locations, any attempt to defeat the independence of messages from physical locations would be as futile as an effort to tie an atom and a bit together."); see also James Boyle, Foucault in Cyberspace: Surveillance, Sovereignty, and Hardwired Censors, 66 U. Cin. L. Rev. 177, 178-83 (1997) (summarizing the argument that "the technology of the medium, the geographical distribution of its users, and the nature of its content all make the Internet specially resistant to state regulation").

[FN25]. Johnson & Post, supra note 21, at 1374.

[FN26]. Id. at 1375.

[FN27]. Id. at 1376.

[FN28]. Id. at 1379; see Joel R. Reidenberg, Governing Networks and Rule- Making in Cyberspace, 45 Emory L.J. 911, 917-19 (1996) (asserting that the Internet's infrastructure creates "visible borders" that replace national borders in regulating online interactions).

[FN29]. Johnson & Post, supra note 21, at 1390; see Henry H. Perritt, Jr., Cyberspace Self-Government: Town Hall Democracy or Rediscovered Royalism?, 12 Berkeley Tech. L.J. 413, 414 (1997) ("[Cyberspace] may be distinct enough to have its own law and legal institutions--a system of 'cybergovernment." ').

[FN30]. See Johnson & Post, supra note 21, at 1388.

[FN31]. Id.; see supra p. 1678-79 (examining the manner in which Internet norms regulate online conduct).

[FN32]. See id. at 1389; see also Reidenberg, supra note 28, at 917 (noting that the abilities of network communities to define and enforce rules of citizenship and behavior represent "distinct sovereign powers"); supra pp. 1604-05 (discussing legal issues arising from enforcement of "acceptable use" policies).

[FN33]. Johnson & Post, supra note 21, at 1393; see also Jason Kay, Sexuality, Live Without a Net: Regulating Obscenity and Indecency on the Global Network, 4 S. Cal. Interdisciplinary L.J. 355, 387 (1995) ("Because government regulation has been unsuccessful, and self-regulation has succeeded, the Internet should continue to be allowed to regulate itself.").

[FN34]. See, e.g., Timothy S. Wu, Note, Cyberspace Sovereignty?--The Internet and the International System, 10 Harv. J.L. & Tech. 647, 654-55 (1997) (describing examples of Internet regulation in China and Singapore that cast doubt on "the arguments for cyberspace sovereignty inasmuch as they seem to make sense only in particular contexts").

[FN35]. Boyle, supra note 24, at 190.

[FN36]. See id. at 194. The recent World Intellectual Property Organization treaties are a prominent example of this type of indirect regulation. By imposing strict liability for copyright infringement on Internet service providers, the government encourages service providers to investigate technologies that minimize their liability, thereby making them the government's "private police." Id. at 197. For a more thorough discussion of regulation through filtering technologies, see supra pp. 1640-44.

[FN37]. See Viotti & Kauppi, supra note 8, at 230-31.

[FN38]. See id.

[FN39]. See id. at 228; Andrew Moravcsik, Taking Preferences Seriously: A Liberal Theory of International Politics, 51 Int'l. Org. 513, 518 (1997). For a discussion of an alternative liberal understanding of the state, see infra section B.

[FN40]. See, e.g., Roxanne Lynn Doty, Sovereignty and the Nation: Constructing the Boundaries of National Identity, in State Sovereignty as Social Construct 121, 122 (Thomas J. Biersteker & Cynthia Weber eds., 1996) ("[T]oday no state possesses legitimacy which does not also claim to represent the will of the nation." (quoting Anthony Smith, National Identity and the Idea of European Unity, 68 Int'l Aff. 55, 62 (1992)) (internal quotation marks omitted)).

[FN41]. Fernando R. Teson, The Kantian Theory of International Law, 92 Colum. L. Rev. 53, 69-70 (1992).

[FN42]. New York v. United States, 505 U.S. 144, 177 (1992).

[FN43]. S. 474, 105th Cong. (1997).

[FN44]. 143 Cong. Rec. E1633 (daily ed. Sept. 3, 1997) (statement of Rep. Goodlatte); see 144 Cong. Rec. S8815, S8816 (daily ed. July 23, 1998) (statement of Sen. Torricelli) ("If we want to have Indian tribes having Indian gaming, let them do it on their reservation. That is their right, their sovereignty. But my State has sovereignty, too. We have decided not to allow gaming in every community.").

[FN45]. 144 Cong. Rec. S8689, S8768 (daily ed. July 22, 1998) (statement of Sen. Biden).

[FN46]. Hedley Bull, The Anarchical Society 264 (1977); see Peter J. Spiro, New Global Communities: Nongovernmental Organizations in International Decision-Making Institutions, Wash. Q., Winter 1995, at 45, 46 ("It is almost as if the world has arrived at a sort of neo-medievalism in which the institutions and sources of authority are multifarious."). This conception of dispersed state authority surfaces in various scholarly contexts. See, e.g., Rosemary J. Coombe, The Cultural Life of Things: Anthropological Approaches to Law and Society in Conditions of Globalization, 10 Am. U. J. Int'l L. & Pol'y 791, 831 (1995) (noting that because of globalization, cultures can no longer be considered bounded by territorial terms, but instead exist across borders); Alexander B. Murphy, The Sovereign State System as Political- Territorial Ideal: Historical and Contemporary Considerations, in State Sovereignty as Social Construct, supra note 40, at 81, 82-84, 107 (asserting that globalization challenges the sovereign state's conceptual integrity by dispersing authority to a multitude of "significant functional spaces").

[FN47]. See Harold K. Jacobson, Networks of Interdependence: International Organizations and the Global Political System 13-14 (1984).

[FN48]. See Mark L. Movsesian, The Persistent Nation State and the Foreign Sovereign Immunities Act, 18 Cardozo L. Rev. 1083, 1086-88 (1996) (summarizing the neo-medievalist position).

[FN49]. Thomas M. Franck, Community Based on Autonomy, 36 Colum. J. Transnat'l L. 41, 43 (1997). Numerous commentators have asserted that the Internet facilitates the dispersion of individual loyalties from the state. See, e.g., Steven R. Salbu, Who Should Govern the Internet?: Monitoring and Supporting a New Frontier, 11 Harv. J.L. & Tech. 429, 457-58 (1998) ( "Interactive computer technology signals a paradigm shift away from geographic conceptualizations of community, in favor of nongeographical communities." (citation omitted)).

[FN50]. Murphy, supra note 46, at 111.

[FN51]. See Thomas M. Franck, Clan and Superclan: Loyalty, Identity, and Community in Law and Practice, 90 Am. J. Int'l L. 359, 376 (1996) ("In many areas of endeavor--commerce, defense, environmental protection, health, entertainment, education--human needs and wants cannot ... be satisfied by, or in, the state alone.").

[FN52]. See Franck, supra note 49, at 49.

[FN53]. Franck, supra note 51, at 382; cf. Sylvia R. Lazos, Deconstructing Homo[generus] Americanus: The White Ethnic Immigrant Narrative and Its Exclusionary Effect, 72 Tul. L. Rev. 1493, 1592 (1998) (arguing that each individual should be free to modify her cultural identity).

[FN54]. Johnson & Post, supra note 21, at 1397 (citing Michael J. Sandel, America's Search for a New Public Philosophy, Atlantic Monthly, Mar. 1996, at 57, 73-74).

[FN55]. Id. at 1398 (quoting Sandel, supra note 54, at 74); see Esther Dyson, Release 2.1, at 128 (1998) (noting existence of "'legitimate' Net governments ... [that] control Net territory by consent and indeed request of the governed"); Todd H. Flaming, The Rules of Cyberspace: Informal Law in a New Jurisdiction, 85 Ill. B.J. 174, 179 (1997) (asserting that territorial governments should recognize cyberspace as an autonomous space that orders itself according to the preferences of the Internet community); Aaron Mefford, Note, Lex Informatica: Foundations of Law on the Internet, 5 Ind. J. of Global Legal Stud. 211, 236 (1997) (asserting that self-regulation is more legitimate than territorial law because users create "Net law"); Barlow, supra note 6 ("Governments derive their just powers from the consent of the governed. You have neither solicited nor received ours .... We are forming our own Social Contract.").

[FN56]. Johnson & Post, supra note 21, at 1396.

[FN57]. Id. at 1399. Esther Dyson similarly believes that deference to "Net governments" is warranted by an "exit" theory. See Dyson, supra note 55, at 128. She notes that in contrast to "territorial governments[, which] are natural monopolies in their own territories, cyberspace governments compete." Id. Thus, a Net government must "provide its citizens with real benefits if it wants them to stick around." Id.

[FN58]. See Johnson & Post, supra note 21, at 1399 n.102.

[FN59]. See Barlow, supra note 6 ("I declare the global social space we are building to be naturally independent of the tyrannies you seek to impose on us.").

[FN60]. Keith Aoki, (Intellectual) Property and Sovereignty: Notes Toward a Cultural Geography of Authorship, 48 Stan. L. Rev. 1293, 1347 (1996) (quoting Herbert I. Schiller, The Global Information Highway: Project for an Ungovernable World, in Resisting the Virtual Life: The Culture and Politics of Information 17, 23 (James Brook & Ian A. Boal eds., 1995)) (internal quotation marks omitted); see Saskia Sassen, On the Internet and Sovereignty, 5 Ind. J. of Global Legal Stud. 545, 550-54 (1998) (noting that cyberspace will likely become "privatized space" dominated by those who can pay).

[FN61]. Margaret Chon, Radical Plural Democracy and the Internet, 33 Cal. W.L. Rev. 143, 147 (1997).

[FN62]. Id. at 149.

[FN63]. Johnson & Post, supra note 21, at 1395; see Reidenberg, supra note 28, at 930 ("[P]ublic interests may dictate that governments actively seek elements of network democracy as a condition for network operation.").

[FN64]. This metaphor has withstood infrequent attempts to adopt a term that more accurately describes the diversity of electronic communications on the Internet. See, e.g., Anne Wells Branscomb, Anonymity, Autonomy, and Accountability: Challenges to the First Amendment in Cyberspaces, 104 Yale L.J. 1639, 1640 (1995) (adopting the term "cyberspaces").

[FN65]. See, e.g, Matt Richtel, He Tries to Draw Legal Borders in Cyberspace, Wired (Aug. 11, 1997) <http:// www.wired.com/news/news/politics/story/5881.html> (on file with the Harvard Law School Library) (reporting the Missouri attorney general's desire to protect the sovereignty of the states and to impose order on the lawlessness of the Internet). Johnson and Post admit that many governments "might object that we cannot easily live in a world with too many different sources and types of law ... without breeding confusion and allowing anti-social actors to escape effective regulation." Johnson & Post, supra note 21, at 1399.

[FN66]. See David L. Marcus, Nations Strive to Limit Freedom of the Internet, Boston Globe, Dec. 28, 1998, at A1.

[FN67]. See Nicholas W. Allard, Privacy On-Line: Washington Report, 20 Hastings Comm. & Ent. L.J. 511, 514 n.9 (1998).

[FN68]. See Moravcsik, supra note 39, at 516.

[FN69]. See id.

[FN70]. See id. at 517.

[FN71]. See id. at 518.

[FN72]. See id.

[FN73]. See id. at 520.

[FN74]. See id. at 521.

[FN75]. "Constructivist" international relations theory focuses on the manner in which states form their identities and interests in "intersubjective" relationships with one another. See Alexander Wendt, Anarchy Is What the States Make of It: The Social Construction of Power Politics, 46 Int'l Org. 391, 393-94 (1992). The notion that actors acquire their identities and interests through participation in collective meanings has also informed several other academic disciplines. See Jerry Frug, Decentering Decentralization, 60 U. Chi. L. Rev. 253, 273-78 (1993) (surveying literature adhering to an understanding of the "situated subject" in which the self is formed only through relationships with others).

[FN76]. See Note, Constructing the State Extraterritorially: Jurisdictional Discourse, the National Interest, and Transnational Norms, 103 Harv. L. Rev. 1273, 1275 (1990) ("[The] determination of the 'national interest' [affixes] a badge of national legitimacy onto the interests of a particular group.").

[FN77]. Eric J. Hobsbawm, Nations and Nationalism Since 1780, at 5-6, 8 (1992).

[FN78]. See Doty, supra note 40, at 122 ("When it is no longer clear who makes up the nation, a state's internal sovereignty and the existence of the state itself is threatened.").

[FN79]. Michel Foucault called this the juridical aspect of the law. See Michel Foucault, 1 History of Sexuality 136-52 (Robert Hurley trans., 1980). It regulates negatively, through limitation, prohibition, and control. See id.

[FN80]. Cf. Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism 6-7 (2d ed. 1991) (noting that every nation is "an imagined political community"). Foucault believed this function to be the primary characteristic of law in the modern era. See Michel Foucault, Discipline and Punish: The Birth of the Prison 194 (Alan Sheridan trans., 1977). Law's power "produces; it produces reality; it produces domains of objects and rituals of truth." Id.

[FN81]. 74 F.3d 701 (6th Cir. 1996).

[FN82]. See id. at 705.

[FN83]. See id. at 711.

[FN84]. Id.

[FN85]. Franck, supra note 49, at 49.

[FN86]. See, e.g., Peter A. Andersen, Myron W. Lustig & Janice F. Andersen, Regional Patterns of Communication in the United States: A Theoretical Perspective, 54 Comm. Monographs 128, 140 (1987) (arguing that despite homogenizing forces in the United States, distinct regional cultures continue to exist); see also H.R. Trevor-Roper, Fernand Braudel, the Annales, and the Mediterranean, 44 J. Modern Hist. 468, 470 (1972) (summarizing the Annales school of history, which focuses on the importance of "[g]eography, climate, [and] population" in social development). But see Hubert J.M. Hermans & Harry J.G. Kempen, Moving Cultures: The Perilous Problems of Cultural Dichotomies in a Globalizing Society, 53 Am. Psychologist 1111, 1111 (1998) ("In an increasingly interconnected world society, the conception of independent, coherent, and stable cultures becomes increasingly irrelevant.").

[FN87]. See Barry Wellman & Milena Gulia, Net Surfers Don't Ride Alone: Virtual Community as Community, in Networks in the Global Village (Barry Wellman ed., 1998), at *11 (draft available at <http://www.acm.org/<<tilde>> ccp/references/wellman/wellman.html>) (on file with the Harvard Law School Library); see also Personality Crisis? Not on the Net, Psychol. Today, Mar./ Apr. 1998, at 70 (finding that the majority of participants in an Internet study avoided the "anarchy" of chat rooms and virtual communities and used the Internet only for work). But see Karen L. Michaelson, Information, Community, and Access, 14 Soc. Sci. Computer Rev. 57, 58-59 (1996) (noting that people may possess stronger ties to their virtual communities of interest than their own physically based communities because virtual communities are based on shared interests and not just shared location); supra p. 1591-92 (describing virtual communities that "provide vivid examples of the capacity of online groups to facilitate sustained and meaningful interaction").

[FN88]. Several large Internet businesses have cited consumer demand as a motivating factor in reorienting their websites toward the local and the regional. See, e.g., Randi Bussin, Multilingual Web Site Strategy & Implementation: Microsoft (visited Apr. 19, 1999) <http://www.headcount. com/globalsource/articles.htm> (on file with the Harvard Law School Library) (explaining that Microsoft moved toward localized websites because its "customers expressed a genuine demand for local content"). International portals have also begun to offer local assistance. See, e.g., Lankaweb (visited Apr. 19, 1999) <http://www.lankaweb.com> (on file with the Harvard Law School Library) (providing Sri Lankan users with regional offerings and access to local Usenet discussions, Sri Lankan IRC chat channels, news, and travel information).

[FN89]. For example, one Memphis editorial, published shortly before the trial, argued against convicting the Thomases, noting that "it would be better to err on the side of freedom than a heavy-handed, old-time censorship." Porn Trial: Memphis Case Points to New World of Law, Com. Appeal (Memphis, Tenn.), July 19, 1994, at A6.

[FN90]. Michael Kelley, Banned in Memphis: City Has High Profile in Obscenity Case History, Com. Appeal (Memphis, Tenn.), June 1, 1995, at C1.

[FN91]. Id.

[FN92]. See Moravcsik, supra note 39, at 521.

[FN93]. See Amy Knoll, Comment, Any Which Way But Loose: Nations Regulate the Internet, 4 Tul. J. Int'l & Comp. L. 275, 287 (1996).

[FN94]. See Cendali & Weinstein, supra note 16, at S1.

[FN95]. Frug, supra note 75, at 260.

[FN96]. Note, supra note 76, at 1290 (citing Anderson, supra note 80, at 15).

[FN97]. Such an articulation of collective values may also provide a means of collective catharsis. Cf. Barbara Allen Babcock, Fair Play: Evidence Favorable to an Accused and Effective Assistance of Counsel, 34 Stan. L. Rev. 1133, 1140 (1982) (noting that criminal trials have cathartic benefits for a society seeking a "reassurance of safety and the satisfaction of revenge").

[FN98]. Cf. Geoffrey R. Stone, Content Regulation and the First Amendment, 25 Wm. & Mary L. Rev. 189, 198 (1983) (noting that a law that impairs the communication of a particular viewpoint violates the First Amendment because, by removing a particular message from public debate, it mutilates "the thinking process of the community").

[FN99]. The Supreme Court's rhetoric in striking down speech regulations often illustrates this proposition. Upon declaring a regulation unconstitutional, the Court commonly emphasizes that the nation's commitment to freedom and open debate necessarily creates public discord and offense--the acceptance of which indicates the high price that society is willing to pay to preserve these national values. See, e.g., Texas v. Johnson, 491 U.S. 397, 419 (1989) ( "Our decision [to strike down prohibitions on flag burning] is a reaffirmation of the principles of freedom and inclusiveness that the flag best reflects, and of the conviction that our toleration of criticism such as Johnson's is a sign and source of our strength."); Cohen v. California, 403 U.S. 15, 24-25 (1971) (noting that "verbal tumult, discord, and even offensive utterance" are "necessary side effects of the broader enduring values which the process of open debate permits us to achieve. That the air may at times seem filled with verbal cacophony is, in this sense, not a sign of weakness but of strength.").

[FN100]. See Goldsmith, supra note 13, at 489-90.

[FN101]. Pennoyer v. Neff, 95 U.S. 714 (1878), was the primary articulation of the realist view of personal jurisdiction. The Court asserted that "[t]he authority of every tribunal is necessarily restricted by the territorial limits of the State in which it is established." Id. at 720.

[FN102]. 326 U.S. 310 (1945).

[FN103]. See Terry S. Kogan, A Neo-Federalist Tale of Personal Jurisdiction, 63 S. Cal. L. Rev. 257, 257-59 (1990) (referring to the "fable" that International Shoe v. Washington "slew the evil dragon known as Pennoyer v. Neff").

[FN104]. See, e.g., John B. Oakley, The Pitfalls of "Hint and Run" History: A Critique of Professor Borchers's "Limited View" of Pennoyer v. Neff, 28 U.C. Davis L. Rev. 591, 608 n.70 (1995) (asserting that International Shoe conflated territorial power and fair notice concerns); William M. Richman, Understanding Personal Jurisdiction, 25 Ariz. St. L.J. 599, 613 (1993) (suggesting that "the contacts requirement is simply a vestige of the Court's territorial power theory and has no modern, functional justification").

[FN105]. Hanson v. Denckla, 357 U.S. 235, 253 (1958). In Hanson, the Court emphasized the personal jurisdiction doctrine's implicit realist assumptions, noting that restrictions on personal jurisdiction were a "consequence of territorial limitations on the power of the respective States." Id. at 251; see World-Wide Volkswagen v. Woodson, 444 U.S. 286, 291-92 (1980) (stating that the doctrine "acts to ensure that the States, through their courts, do not reach out beyond the limits imposed on them by their status as coequal sovereigns in a federal system").

[FN106]. 465 U.S. 783 (1984).

[FN107]. See discussion and sources cited supra note 17.

[FN108]. See Hearst Corp. v. Goldberger, No. 96 Civ. 3620, 1997 WL 97097, at *7 (S.D.N.Y. Feb. 26, 1997); Michele N. Breen, Personal Jurisdiction and the Internet: "Shoehorning" Cyberspace into International Shoe, 8 Seton Hall Const. L.J. 763, 791 (1998) (describing the judicial split in cases involving "pure" Internet contacts).

[FN109]. Most states have adopted long-arm statutes that provide for personal jurisdiction over any cause of action arising from a nonresident's "transaction of any business within [the] State." Jack H. Friedenthal, Mary Kay Kane & Arthur R. Miller, Civil Procedure 139 (2d ed. 1993) (quoting Ill. Rev. Stat., Ch. 110, para. 2-209). Several states also have long-arm statutes that contain an "effects" prong. These statutes provide for jurisdiction over any defendant who "commits a tortious act without the state causing injury to person or property within the state." Id. at 143 n.11 (quoting N.Y. C.P.L.R. 302(a)(3) (McKinney 1998)).

[FN110]. See e.g., Maritz, Inc. v. Cybergold, Inc., 947 F. Supp. 1328, 1331 (E.D. Mo. 1996) (finding that trademark infringement was tortious in nature and that application of the "effects" provision was proper); Panavision Int'l v. Toeppen, 938 F. Supp. 616, 621-22 (C.D. Cal. 1996) (same). But see Cybersell v. Cybersell, 130 F.3d 414, 420 n.6 (9th Cir. 1997) (rejecting the application of "effects" doctrine in a trademark infringement case).

[FN111]. 937 F. Supp. 295 (S.D.N.Y. 1996).

[FN112]. See id. at 297.

[FN113]. See id. at 299. The Second Circuit, in affirming the district court's judgment, did not refer to this finding. Rather, it held that "[e]ven if Bensusan suffered injury in New York, that does not establish a tortious act in the state of New York within the meaning" of the New York long-arm statute. Bensusan Restaurant v. King, 126 F.3d 25, 29 (2d Cir. 1997) (emphasis added).

[FN114]. See, e.g., Maritz, 947 F. Supp. at 1331 (finding that alleged injury occurred in Missouri); Panavision, 938 F. Supp. at 621-22 (asserting that "the brunt" of alleged harm was "borne in California").

[FN115]. Compare Panavision, 938 F. Supp. at 622 (refusing to hold that cyber-pirate was not "doing business" in California via the Internet), with Hasbro v. Clue Computing, 994 F. Supp. 34, 44 (D. Mass. 1997) (holding that a company had "solicit[ed] business" in Massachusetts through the use of a website domain name that allegedly infringed the plaintiff's trademark).

[FN116]. See, e.g., Hasbro, 994 F. Supp. at 44-45 (asserting jurisdiction because the defendant, by advertising on its website, purposefully directed its advertising at all the states); Heroes, Inc. v. Heroes Found., 958 F. Supp. 1, 4-5 (D.D.C. 1996) (summarizing cases that held that the mere existence of a website was a sufficient basis for personal jurisdiction); Inset Sys. v. Instruction Set, Inc., 937 F. Supp. 161, 165 (D. Conn. 1996) (holding that existence of website subjected defendant to Connecticut jurisdiction).

[FN117]. See, e.g., McDonough v. Fallon McElligott, Inc., No. Civ. 95- 4037, 1996 WL 753991, at *3 (S.D. Cal. Aug. 5, 1996) (noting that "[b]ecause the Web enables easy world-wide access, allowing computer interaction via the [W]eb to supply sufficient contacts to establish jurisdiction would eviscerate the personal jurisdiction requirement as it currently exists").

[FN118]. See Patriot Sys., Inc. v. C-Cubed Corp., 21 F. Supp. 2d 1318, 1324 (D. Utah 1998) (stating that "current case law reveals three general categories along a 'sliding scale' for evaluating jurisdiction," with jurisdiction existing over an individual who "clearly does business over the Internet," but lacking over one who merely uses a "passive Web site that does little more than make information available to those who are interested in it" (quoting Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1123-24 (W.D. Pa. 1997)) (internal quotation marks omitted)); accord Cybersell v. Cybersell, 130 F.3d 414, 418 (9th Cir. 1997) (requiring"something more" than a "passive" website for jurisdiction to be proper).

[FN119]. See No Mayo-San Francisco v. Memminger, No. C-98-1392 PJH, 1998 WL 544974, at *4 (N.D. Cal. Aug. 20, 1998) (citing Cybersell, 130 F.3d at 418).

[FN120]. To a certain extent, current doctrine reflects this fact through the requirement that courts assess the "reasonableness" of jurisdiction in light of "the burden on the defendant ... and the plaintiff's interest in obtaining relief." Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102, 113 (1987). Nonetheless, most courts accord little weight to personal jurisdiction's "reasonableness" prong, see Burger King Co. v. Rudzewicz, 471 U.S. 462, 474-75 (1985), and generally determine the issue under the heading of the "purposeful availment" test, requiring the court to couch its analysis in the language of "contacts," see Earl M. Maltz, Visions of Fairness--The Relationship Between Jurisdiction and Choice-of-Law, 30 Ariz. L. Rev. 751, 754 (1988). "Taken together, World-Wide Volkswagen, Keeton and Burger King clearly establish the primacy of the concept of 'purposeful availment' in the analysis of specific jurisdiction cases." Id.

[FN121]. 355 U.S. 220 (1957).

[FN122]. Id. at 223.

[FN123]. See Julie Hofherr Bruch, Comment, Forum Selection Clauses in Consumer Contracts: An Unconscionable Thing Happened on the Way to the Forum, 23 Loy. U. Chi. L.J. 329, 345 (1992) ("The Shute opinion significantly favors the efficiency of business over concerns about the unequal bargaining power of consumers.").

[FN124]. 499 U.S. 585 (1991).

[FN125]. See id. at 596-97.

[FN126]. See id. at 593.

[FN127]. See id. at 593-94.

[FN128]. The Sixth Circuit has noted that "[t]he Internet represents perhaps the latest and greatest manifestation of ... historical, globe-shrinking trends. It enables anyone with the right equipment and knowledge ... to operate an international business cheaply, and from a desktop." CompuServe, Inc. v. Patterson, 89 F.3d 1257, 1262 (6th Cir. 1996).

[FN129]. See Panavision, Int'l v. Toeppen, 141 F.3d 1316, 1318 (9th Cir. 1998).

[FN130]. 960 F. Supp. 456 (D. Mass. 1997).

[FN131]. Id. at 471.

[FN132]. Id.

[FN133]. See id. at 472.

[FN134]. See supra pp. 1695-97.

[FN135]. Burger King Co. v. Rudzewicz, 471 U.S. 462, 477 (1985) (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292 (1980)) (internal quotation marks omitted).

[FN136]. 992 F. Supp. 44 (D.D.C. 1998).

[FN137]. See id. at 46.

[FN138]. The differing attitudes expressed by Los Angeles and Washington reporters toward Drudge suggest how the two populations' normative perspectives may have differed. Compare Karen Kaplan, A Question of Ethics: Online Gossip Columnist Drudge Debates Establishment Media, L.A. Times, Nov. 17, 1997, at D3 (characterizing Drudge as merely a "media establishment symbol" for the substantial problems of the "freewheeling Internet"), and Neal Gabler, GOSSIP: Why Let Truth Get in the Way of a Good Story?, L.A. Times, Oct. 26, 1997, at M1 (perceiving Drudge as satisfying a society's need for entertainment value through the ease of Internet publication), with Howard Kurtz, In Lewinsky Saga, A Cast of Dozens, Wash. Post, March 2, 1998, at C1 ("Blumenthal is understandably seeking retribution for a false story that he had a history of spousal abuse."), and John Schwartz, Journalism's Old Rules Should Apply to Cyber-Libel, Wash. Post, Jan. 26, 1998, at F20 ("I have never met Matt Drudge, but I have a powerful feeling that if I did, I wouldn't like him at all.").

[FN139]. Blumenthal, 992 F. Supp. at 54.

[FN140]. See id. at 56.

[FN141]. Id. at 57.

END OF DOCUMENT