Microsoft Corp. v. United States and the ‘Hot Pursuit’: A Case Study Against the Application of the Law of the Sea into the Cyberspace

Abstract

In today's world, no treaty regulates the cyberspace or the Internet. To some extent, the multi-stakeholder model has successfully kept the Internet free of a unique point of control, yet some nation-states advocate for a government-based-model. Amid the Internet Corporation for Assigned Names and Numbers (ICANN) transition debate, some governments favoured a cyberspace regulation in the hands of an inter-governmental organisation. Additionally, western democracies have advocated to declare the cyberspace a fifth domain. Reasons for these different perceptions are related to the different conceptions nation-states have what should be the governance model for a resource beyond their traditional borders. Considering this dichotomy, this paper analyses the negative implications of applying the law of the sea into cyberspace. For this purpose, this paper will explore the concept of the 'right of hot pursuit', one of the provisions of the United Nations Convention on the Law of the Sea (UNCLOS). The research methodology includes as a case-study Microsoft Corp. v. United States also known as the 'Microsoft Ireland' case. This case was selected because it exemplified how government administrations attempt to use the principles of international law to protect their sovereignty over the Internet infrastructure located in their territory, even when the access to that infrastructure is 'virtual' and there is no need to access such infrastructure physically. Facing this scenario, where governments try to exercise their sovereignty beyond their territorial borders, this paper will: 1. Provide an overview of the International Court of Justice (ICJ) and the International Tribunal for the Law of the Sea (ITLOS) interpretations of the hot pursuit to determine the international legal conception over this principle. 2. Analyse the arguments of the parties involved in the Microsoft Ireland case about why one nation-state's sovereignty should be applied or not beyond the borders of its territory. 3. Analyse the negative repercussions of including the hot pursuit and the fictional fragmentation of the ocean into the cyberspace. Findings expect to enrich the discussion within the Internet governance debate and understand the consequences of (1) applying the international law over the Internet infrastructure and (2) clarify the traditional legal approach that spaces without nation-states' sovereignty should not exist.