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Where is cyberspace? what is cyberspace? Functionally, cyberspace is a place. It is a place where messages and webpages are posted for everyone in the world to see, if they can find them. "Taken together, these tools constitute a unique medium -- known to its users as 'cyberspace'-- located in no particular geographical location but available to anyone, anywhere in the world, with access to the internet." 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. 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.
The theory of international spaces begins with one proposition: nationality, not territoriality, is the basis for the jurisdiction to prescribe in outer space, Antarctica, and the high seas. In outer space, the nationality of the registry of the vessel, manned or unmanned, is the relevant category. In Antarctica, the nationality of the base governs. Other informal arrangements (for instance, the United States providing all air traffic control in Antarctica)weigh heavily in decisions about jurisdiction. On the high seas, the nationality of the vessel -- the "law of the flag" -- is the primary rule. One approach is to treat these three areas as sui generis treaty regimes. The next theoretical and conceptual hurdle is physicality. These three physical spaces are nothing at all like cyberspace which is a nonphysical space. But then, one could hardly posit three more dissimilar physicalities -- the ocean, a continent, and the sky. What makes them analogous is not any physical similarity, but their international, sovereignless quality. These three, like cyberspace, are international spaces. As a fourth international space, cyberspace should be governed by default rules that resemble the rules governing the other three international spaces, even in the absence of a regime-specific organizing treaty, which the other three international spaces have.
The history of international spaces begins at sea. Modern admiralty law and the law of the High Seas began in large part with Grotius in the 17th Century. The Law of the Sea remains the dominating voice in the discussion of international spaces, and the oceans have long been the most important of the international spaces. Antarctica was not discovered until about 1820, and it did not become the subject of serious international attention until the 1950s, especially during the International Geophysical Year (1957-58). Although visible since time immemorial, outer space remained similarly unexplored until 1957, when Sputnik introduced man to a new international space. Cyberspace emerged during the 1970s and 1980s as the apparatus of the Internet took root, but it was not until the early 1990s that an explosion in users and uses, including commercial uses, introduced a worldwide virtual community to another international space.
Making nationality work as a principle in cyberspace requires an analysis appropriate to cyberspace since be it open sea or outer space or Antartica, the implication of the nationality principle in each case is diffirent. The obvious question might be, "What is the nationality of a vessel in cyberspace?" But we are at a loss to find a ship or plane in cyberspace. Thus, we must ask first, what is the vessel of nationality in cyberspace, i.e. what carries nationality into cyberspace?
In cyberspace, persons bring nationality into the international space of cyberspace through their actions. An uploader marks a file or a webpage with his nationality. We may not know "where" a webpage is, but we know who is responsible for it. The nationality of items in cyberspace could be determined by the nationality of the person or entity who put them there, or perhaps by the one who controls them. Generally, determining the nationality of a webpage is not a problem. The creator of a webpage is usually listed on the webpage. However, webpages are now also created by individuals and companies for others. This makes us ask who "owns" the page for jurisdictional purposes - the creator or the person on whose behalf it is maintained? Courts will have to decide as to what level of connection between a cyberspace item and an individual is reasonable for the nationality of that person to dictate the jurisdiction to prescribe law. The theory of international spaces turns cyberspace from a place of infinitely competing jurisdictions into a place where normal jurisdictional analysis can continue.
Similarly, links to pages in cyberspace will follow the same jurisdictional analysis. The person who creates the link is subject to his or her own national laws governing what links he or she may create. Also, a person is subject to the territorial jurisdiction from which he or she uploads data.A person who follows a link is simply a downloader, and is subject to the territorial jurisdiction of the keyboard at which he or she sits, as well as the laws governing persons of his or her nationality in cyberspace. What the theory of international spaces avoids is the downloader having to be aware of following links that were illegal for the uploader to make based on the uploader's territorial presence or nationality.
One of these complexities is a "mirror" site -- a website set up to contain identical information to another site in order to alleviate overburdening of the servers or allow faster downloading to websurfers in different geographic locations. While the location of the server should be of no importance, it often means that a mirror site involves an international alliance. For example, suppose a software company in Japan maintains a mirror site for a German software company, and allows the German company access to its ftp (file transfer protocol) site. In this situation, the content is controlled by the German company, but the Japanese company is involved in the production of the page. The question then becomes a highly factual inquiry, requiring the court to determine the extent to which the person maintaining the foreign mirror site is involved in the uploading and downloading of material.
However, a site maintainer is also different from the sysop. Unlike the hapless sysop, a site maintainer may often (a) play a role in determining the content of the site, (b) easily be able to control that content, and (c) have a specific intent to control the content of the site. When this is true, a nexus exists between the actions of the foreign national (the Japanese national in the above example) and the contents of the "mirror" site, a nexus that does not exist between an ordinary downloader and a website maintained by an unrelated individual in another jurisdiction. Under these circumstances, it may then be altogether "reasonable" for the foreign state to assert jurisdiction over the site.
The problems of anonymity has not been answered in this article. Such problems are equally difficult to answer eve in municipal or international law. However, once a person is identified, his nationality will provide the basis for teh jurisdiction to prescribe the rules for his actions in cyberspace.
A problem also arises when the line between cyberspace and normal telecommuicates us blurred. A private, one-time email does not share the essential characteristics of an item in international cyberspace; rather, it is a mere international communication. Then, when is an electronic communication international enough to be cyberspace? Ultimately, this conundrum will resolve itself through a focus on the intent of the sender to cause an effect in a given country. The relevant question under international law is whether it is reasonable for the state in question to exercise jurisdiction based on objective territoriality. The burden will clearly be on the prosecuting state to prove that an item in cyberspace was targeted to that state, giving that state a special interest above others. Because of the nature of cyberspace, and the great potential for conflicts of law, a fairly strong connection between the emailer and the target state will be necessary for the target state to assert the jurisdiction to prescribe based on the principle of objective territoriality.
The survey of international law and the treatment of the jurisdiction
to prescribe in vast sovereignless regions provided in this article supports
the theory of international spaces. Antarctica, outer space, the high seas,
and cyberspace are four international spaces that share the unusual characteristic,
for jurisdictional purposes, of the lack of any territorial jurisdiction.
In these four places, nationality is, and should be, the primary principle
for the establishment of jurisdiction. Such a rule will provide predictability
and international uniformity. It strikes a balance between anarchy and
universal liability, and it works. Recognition of cyberspace as an international
space is more than overdue. It is becoming imperative.