Nations, markets and other imaginary places: who makes the law in cyberspace?

Abstract

Whose laws apply to cyberspace? This article attempts to identify which constellations of forces are most successful in imposing their laws on cyberspace, and the prospects for the future. From the first, we have talked of cyberspace as a ‘place’ or as ‘recently-discovered territory’, and have asked who governs this territory. Some say that it is outside any other nation, and perhaps should remain so; others reply that this is ‘cyberanarchy’, and that each nation should claim its own share of cyberspace. Yet such talk merely reduces one metaphor to another, for nations too are only ‘spaces’ in a metaphorical sense. Borders are not marked on the ground, and they are only marked on maps because that is how we have chosen to draw them. In attempting to enforce their national laws in cyberspace, the permeability of the borders results in a steady pressure towards international conformity: nations cannot in practice enforce their laws unless they frame them similarly to those of their neighbours. Hence the ‘paradox of nationalism’: individual nations can only assert their individual national identity in cyberspace if that identity is pretty much the same as that of other nations.