Transnational Cyber Age: Private Law Cyber Solutions for Individuals and Corporations

Abstract

Specifically, this article argues for the adoption of a transnational court to adjudicate claims arising from cyber-violations between non-State actors on private law matters. This proposed court seeks to establish a legal middle ground between national criminal laws and international laws of war in order to combat transnational cyber-violations through the development and promulgation of legal norms. The proposed solution advocates a unique jurisdictional hook to replace traditional territoriality based rules on jurisdiction: the “territory” of the Internet. It also advocates the adoption of the court within an umbrella organization such as the United Nations or under its own treaty. The rulings of the court are to be enforced by the State Parties to the treaty. This paper argues further that through the promulgation of legal norms from national, international, criminal, civil, and private and public organizations, the court’s resulting case law will reflect internationally accepted values with regard to the Internet. In turn, the case law from the proposed court will influence domestic law and customary international law.Part I of the article describes the state of the problem in the Cyber Age: corporate and financial institutions face major threats from cyber attacks exacerbated by the current legal landscape's lack of adequate forms of redress. In Part II, the article argues cyber-violations are transnational in nature; therefore, the international community bears responsibility and should develop a substantive body of transnational law to combat violators. The article uses the concept of a transnational legal process as the basis of establishing a forum for interaction, internalization, and refinement of transnational cyber-violation legal norms. Part III advances the position of this paper and Part IV addresses the impact this new approach to transnational cyber-violations has on public policy and the balancing between international and domestic values.