Regulation Of Cyberspace Research Articles

Some reflections on non-contractual obligations in cyberspace considering the Rome II regulation

Internet penetration has created a revolutionary change in people's communication nowadays. By creating immaterial and elusive cyberspace, without borders and limits of communication a three-dimensional territorial concept has been transformed by globalizing social relations and reducing importance of regional or national dimensions. All situations taking place on the Internet also occur somewhere in the reality. Sometimes it is difficult to measure whether the events are random or unrelated to particular events. Technological progress offers new possibilities to change a user's real location either consciously or subconsciously. However, the law is highly territorial in nature. This article focuses on existing conflict of law rules under the EU law and reveals its weaknesses in relation to non-contractual obligations caused by the Internet. Therefore, the author observes core concepts of the applicable law by analyzing the legal notions and information technology concepts and assessing the suitability of regulation in cyberspace. The EU regulation, the doctrine of European and domestic authors as well as the EU case law have been examined. As a result, a number of conclusions have been drawn on the suitability of non-contractual relationships in cyberspace considering Rome II Regulation.

Hostes Humani Generis: Cyberspace, the Sea, and Sovereign Control

ABSTRACT Cyberspace is a new global space that is yet not fully explored nor effectively regulated. The authors are not sketching a regulatory framework for cyberspace, but instead are inclined to glean valuable experience from the developments in the regulation of other global spaces, especially the sea. First, the peculiarities of cyberspace and cybercrime are briefly outlined. Then, the other global spaces are analysed drawing comparisons between exploration, appropriation and regulations of the sea and the air and cyberspace. The authors suggest that it is vital to learn lessons from the past in order to achieve an effective model of regulation of cyberspace. One of the main focus points of the paper is the position of a pirate and the ways of regulating piracy in different global spaces.

Cyberspace and the State Action Debate: The Cultural Value of Applying Constitutional Norms to 'Private' Regulation

Regulation in cyberspace does not consist only of laws issued and enforced by sovereigns. Instead, parties and standard-setting bodies, employing the technology of online interaction, will increasingly be able to regulate activity, which might potentially upset many of the provisional balances we as a society have struck in areas such as free speech, privacy, and intellectual property. The question then becomes: how do we evaluate this regulation? Are constitutional norms applicable? Answering such questions requires a reinvestigation of legal doctrine and theory concerning the distinction between (which is generally subject to constitutional constraints) and private ordering (which is not). Critics have repeatedly argued that this distinction is incoherent, but courts nevertheless have shown no inclination to rethink the state action doctrine. In addition, most Americans are likely to resist, on an intuitive level, scholarly attempts to erode the distinction between public and private. Therefore, it may be that a different sort of argument is necessary. This article offers one such argument, based on what I call constitutionalism. Instead of repeatedly claiming that seemingly activity is actually public, we could instead focus on the cultural benefits we might derive from using the Constitution to debate fundamental societal values, public or private. Constitutional adjudication can foster constructive societal debate about social and political issues. It can permit courts to perform an educative function by articulating values and constructing narratives that help constitute our national identity. And, constitutional adjudication can create opportunities for courts to operate as deliberative fora in which difficult political issues are addressed. For all of these reasons, we may decide that measuring a broader range of activities against constitutional norms carries significant cultural benefits. Of course, such an argument does not necessarily outweigh the reasons for viewing the scope of the Constitution more narrowly. Nevertheless, before we can truly analyze the costs and benefits of the state action doctrine, we must consider the constitutive cultural value of constitutional adjudication. Such consideration may be particularly important in the context of debating online regulation, because in cyberspace it is perhaps easier to see how entities can threaten cherished constitutional norms.

Protecting Public Morals in a Digital Age: Revisiting the WTO Rulings on US - Gambling and China - Publications and Audiovisual Products

Values such as promoting free trade in services or protecting public morality coexist in a perilous balance nowadays. This peril appears to be exacerbated by the manifold possibilities of supplying services that the digital age brings with it. Technological advances and innovations transform the manner that services are supplied and call for swift reaction by regulatory authorities. Furthermore, electronic communications erode long-standing traditions in regulating various services industries (supply side) and consumer behaviour (consumption side) and sometimes allow for easy circumvention of law. The US -- Gambling and China -- Audiovisual Products rulings are the first pronouncements of the World Trade Organization (WTO) judiciary on the possible clash between trade expansion, on the one hand, and protection of public morals, on the other. After a critical review of these two important recent rulings on the concept of public morality and its treatment by the WTO judiciary, the article goes on to discuss the changing scope of regulatory sovereignty regarding the protection of public morality in a digital landscape; the paradigm shift in regulatory approaches that technological advances bring about; and the role of courts and non-state actors in the regulation of cyberspace. Oxford University Press 2011, all rights reserved, Oxford University Press.

Making intermediary Internet service providers participate in the regulatory process through tort law: A comparative analysis

A decade after the adoption of the Communications Decency Act and the Digital Millennium Copyright Act on one side of the Atlantic and the European Directive 2000/31/EC on electronic commerce on the other side, one could have expected the role of intermediary Internet service providers (IISPs) to become clearer as regards their contribution to Internet regulation and, in particular, speech regulation. Truly, at the end of the 1990s ‘self-regulation against tort law immunities’ seemed to be the appropriate path to follow in order to subsidize the Information Technology and Technology industry, especially in systems where free speech is often a superseding value. Yet, such a trade-off has progressively appeared inappropriate from the perspective of victims, namely because of the growth of IISPs' regulatory capacities. This has become even more apparent with the emergence of web 2.0 applications. However, judges have not always drawn their inspiration from the originality of the regulatory models underlying the interventions of their respective legislators. This is true both within the USA and in France. This paper thus seeks to highlight the ways that the formalism of tort law has been ‘instrumentalized’ by the judiciary to further a particular paradigm of speech regulation in cyberspace, despite the legislative recognition of alternative paradigms.

Criminal Law in the 21st Century: The Demise of Territoriality?

Crime never confined itself to within the four walls of a given State. Cross-border crime always existed. Yet, States turned a relatively blind eye to the international aspect of crime: they fought crime by bringing it back within their realm. If necessary, they will use extradition rules, but extradition is just an other mechanism to assert territorial jurisdiction, as its objective is to bring the offender to justice within a given space. Indeed, crimes are not only defined but also sanctioned within a territory. States claim jurisdiction first of all on a territorial basis, whether the offense is entirely committed within its four walls, or whether only the conduct or the result of this conduct happened on the territory. Even when a State can claim jurisdiction on personality (author or victim), it ultimately does so because personality is associated with a territory, an enclosed space encompassing values a State wishes to defend through the person of its citizens, as if the person was carrying with her at all times a portion of that territory.Not surprisingly then, criminal law is perceived as the bastion of State's power, maybe the last bastion. Within the EU for example, where States forego important areas of their sovereignty, criminal law remains a no-go area for the European institutions that officially have no power to legislate and adjudicate in criminal law offenses.And yet, the past decades have seen an evolution that tends to relegate the principle of territoriality to the background (I). The increase in transnational crimes forced States to reinvent their cooperation. Regarding international crimes, which have emerged only sixty years ago, the new ICC illustrates the vitality of this movement to bypass territorial walls when necessary. More recently, cybercrime challenged the traditional assizes of criminal law, notably by creating, in virtual communities, virtual crimes which impact is difficult to translate and thus to sanction in real space. And even the EU starts to claim competence to draft criminal laws to protect the environment.In light of those examples, the demise of territoriality could appear imminent. And yet, it is not: despite undeniable challenges, criminal law continues to rest on territoriality (II). Contrary to what was predicted or wished about cyberspace regulation, most cybercrimes can be dealt and are dealt with on a territorial basis, extradition playing an important role in bringing to justice offenders. Old walls stay and if they disappear, it is to be replaced by bigger walls: the EU may weaken its Member States' inside walls, but the outside walls are reinforced. Thus, territories remain the first anchor of criminal law, despite some notable changes in some areas that might well lead the way to rethink criminal law.

Review of The Regulation of Cyberspace by Andrew Murray

After canvassing with good grace the make-up of cyberspace Andrew Murray wonders, in his recent book The Regulation of Cyberspace, which role traditional lawmakers are left to play in the new cyber-regulatory environment. Murray describes the static `command and control' regulatory model as disruptive and ineffective, and supports instead a dynamic, complimentary, and symbiotic regulatory model, which he presents under the features of an autopoietic environment and systems dynamics theory.Regulatory models, explains Andrew Murray in his recent book The Regulation of Cyberspace, intervene when a `disruptive innovation', such as the Internet, creates a regulatory vacuum. As cyberpaternalists suggest, however, the lack of traditional legal-regulatory control systems does not mean total freedom within cyberspace (p.203). On the contrary, as the author contends, `regulators of all forms rush to fill in this vacuum' so that the traditional regulatory mechanism is replaced by private regulatory systems acting, as Joel Reidenberg exposed, as `proxies' to the traditional regulatory system (i.e. courts and law enforcement authorities). Murray shares this point, but also gives credit to the views of cyberlibertarians. Cyberlibertarians argue that traditional command and control models are at last ineffective, even when they operate through proxies. In cyberspace, so they claim, regulators and regulatees mingle with each other to such an unheard-of extent that regulatory interventions cannot be effective unless regulatees co-operate actively.In his book, professor Andrew Murray treasures the sound arguments advanced by the cyberlibertarian and cyberpaternalist camps, and draws lessons from both in order to build a dialectic confrontation between static instrument and dynamic instrument thinking in the regulation of cyberspace. He consecrates the pars destruens of his work to explain why lawmakers should eschew the static approach and adheres to the pars construens to expand on a more dynamic and `smarter' regulatory model.

The Regulation of Cyberspace: Control in the Online Environment by Andrew D. Murray

The Regulation of Cyberspace: Control in the Online Environment by Andrew D. Murray

Averting the Catastrophe of Cyberspace

PurposeTo address the impact of information technology on culture and society, in particular the potential for control and manipulation afforded to state, government and unregulated corporations, by the medium of sophisticated communication networks. The paper sets out to expose the corporate world's manipulation of IT and the multi‐media as it exercises a powerful coercive force, constituting a legitimating principle for economic and cultural domination. It is suggested that the relentless progression of science as profit and the individual as profit‐generating automaton constitutes the subversion of a world rightly ordered by human principles. The paper calls for the ethical regulation of cyberspace, necessitating a philosophical approach and one which prizes human endeavour.Design/methodology/approachExamples from the technosocial world taken from across a range of uses, providers and users are explored according to their impact on everyday life. The ontological and phenomenological nature of the technological medium is also explicated with reference to various academic sources including Castells and Bauman. A sociological / philosophical / ethical approach is adopted by reference to the writings of inter alia Baudrillard and Kant.FindingsThe traditional territories of communication in which social exchange takes place have been dislocated and we have formed new attachments to the pervasive replacement technoculture and technologies. Many examples evidence the extent to which human values and achievements are increasingly organised around various enslaving technological mediums. Cyberspace is in need of a regulatory framework, one which has an ethical basis.Originality/valuePresents an alternative perspective on a significant topic.

Double-Click Justice: Legalism in the Computer Age

Legalism seen as a sort of blind rule following (often embodied in the metaphor of the “computer judge”) is often confused with legality, an altogether more reflexive and rational concept. But legality to work properly needs to be related to and articulate with the narrower concept of legalism. Only in the complex interaction of these concepts can we begin to see legality as a mode of organisation appropriate to a free and democratic society. This is here discussed in the context of the computational implementation of legal concepts which is now ubiquitous and makes the “computer judge” something more than a metaphor and instead a serious socio-legal issue, the regulation of cyberspace and other technology enhanced forms of human interaction.

Internet Co-Governance: Towards a Multilayer Multiplayer Mechanism of Consultation, Coordination and Cooperation (M3C3)

This article addresses issues central to the task of Internet governance and, especially, to the management of the Internet's core resources. Early conceptions of the Internet as a virtual space that required no regulation resisted initial governance activity. More recently, work by people like Lawrence Lessig has clarified the complex relationship between code and the regulation of cyberspace, revealing on one hand a problem of how public policy is framed inside the global Internet infrastructure and, on the other, a problem of how the technical architecture of the Internet is designed. Cutting across such problems is the complex relationship between ‘real places’ (bordered) and ‘virtual spaces’ (unbordered), which are irreducible yet inseparable in the information age. The article explores concrete steps taken during the past 15 years toward developing a workable approach to Internet governance and looks ahead to consider the prospects of the Working Group on Internet Governance (WGIG) established in 2004.

The strategic use of American cyberlaw and cyberspace jurisprudence

PurposeThe purpose of this paper is to examine the impact of jurisdictional conflict on the internationalization of firms with internet – focused strategies – in both the physical and virtual environments.Design/methodology/approachThis paper examines this new phenomenon in the international legal environment through the analysis of Yahoo!'s website internationalization and a review of American cyberlaw jurisprudence.FindingsThis paper suggests that firms with Internet‐focused strategies are aware of the asymmetries in the application and enforcement of extraterritorial judgments, and use these asymmetries as a component of their website internationalization strategy. This paper also suggests that previous calls for the regulation of cyberspace, which are based only on an analysis of the virtual environment, may provide misleading conclusions regarding the operation of international jurisdictional conflict.Research limitations/implicationsThis is a nonquantitative analysis and scope‐limited to American law.Practical limitationsThe paper contain practical and actionable information, and suggests framework for future quantitative and nonquantitative research.Originality/valueThis is the only paper, known to the author, to investigate cyberspace jurisprudence using theories from Law and International Business.

Establishing Legal Order in the Digital World: Local Laws and Internet Content Regulation

The need for establishing legal order in cyberspace is growing; the time has come when it is also possible in several different ways. One of the crucial issues in this respect is the worldwide reach of the global network. Legal rules for human activities, including online activities, vary from state to state, and regulation of cyberspace cannot occur in one single manner all over the world. The existence of various laws produces far reaching consequences both for users and for regulators. Thus, users might face legal consequences in a foreign state for activities lawful in their home jurisdiction, and states might not be able to enforce the laws if the offender resides in another state. The paper examines this issue on the example of Internet content regulation. The approach supported here is to focus on the new actors in the online world and on the new regulatory choices they offer.

Parochialism and Pluralism in Cyberspace Regulation

I predicted a few years ago that the greater connectedness brought about by globalization in general, and technology in particular, would introduce a new humility into our jurisdictional attitudes. Jurisdictional and choice-of-law rules premised on hermetically sealed sovereignty, where governments had exclusive power over their citizens and territory, did not fit a world in which the power and influence of governments extended beyond their borders and collided with conflicting legal norms within their borders. Connectedness, I concluded, would inevitably produce a new sensitivity in conflict of laws to the multiple sources of power and authority with which people must contend in a wired world. Professors Berman and Reidenberg, while sympathetic with that perspective, have here suggested an appropriate caveat: technology can both connect and separate, and globalization can turn governments both outward toward cooperation and inward toward isolation. Connectedness can make us xenophobic as well as cosmopolitan. Thus, Professor Reidenberg discusses how technology enables states to exercise control over multistate electronic transactions in order to enforce their own, legitimate regulatory preferences. He is generally sympathetic to such assertions of national authority and rejects the plea of “Internet separatists” for governments to leave cyberspace alone.

The Regulation of Cyberspace and the Loss of National Sovereignty

The modern commercial law grew out of the custom and usages of the merchants, the Law Merchant. Some of these customs were written down, and became a code of international commercial customs. Although the substantive law and procedures of the common law world broadly reflected the international character of trade, it was also influenced by the insular tendencies of the law. This was particularly prevalent during the nineteenth and twentieth centuries. The advent of modern electronic trade conducted through cyberspace has however meant that the law has once again been required to adopt a more international perspective, through the adoption of international treaties and conventions. This paper looks at the authentication of documents for use abroad, as applied in New Zealand, as an example. From this example it examines some of the implications for national sovereignty of the advent of new international electronic communications laws.

The Regulation of Cyberspace and the Loss of National Sovereignty

The modern commercial law grew out of the custom and usages of the merchants, the Law Merchant. Some of these customs were written down, and became a code of international commercial customs. Although the substantive law and procedures of the common law world broadly reflected the international character of trade, it was also influenced by the insular tendencies of the law. This was particularly prevalent during the nineteenth and twentieth centuries. The advent of modern electronic trade conducted through cyberspace has however meant that the law has once again been required to adopt a more international perspective through the adoption of international treaties and conventions. This article looks at the authentication of documents for use abroad, as applied in New Zealand, as an example. From this example, it examines some of the implications for national sovereignty of the advent of new international electronic communications laws.

Review Essay The Internet and Public International Law -- Worlds Apart?

An international law dimension of the Internet seems to be emerging. This dimension is not limited to the framework of constraints of existing international law on national or regional efforts towards Internet regulation, but is also about the creation of new international law. It is increasingly clear that various international organizations already compete with each other on this turf of international Internet regulation. If the crucial aspect of Cyberspace regulation is code, as Lessig argues, then the question will be: How can we make sure that code is not hijacked by powerful private vested interests or by countries more advanced in computer technology, thereby imposing their values on others. One answer would be to take the questions about code to the arena of public international law. All will depend on the will of the international community — and, particularly, the will of individual states — to insist on dealing with the subject of Internet regulation as a subject of 'valid international interest' in the public international law arena on a truly multilateral basis.

Code and moral values in cyberspace

This essay is a critique of Larry Lessig's book, Code and other Laws of Cyberspace (Basic Books, 1999). It summarizes Lessig's theory of the four modalities of regulation in cyberspace: code, law, markets, and norms. It applies this theory to the topics of privacy and speech, illustrating how code can undermine basic rights or liberties. The review raises questions about the role of ethics in this model, and it argues that ethical principles must be given a privileged position in any theory that purports to deal with the shaping of behavior in cyberspace. Finally, it proposes a philosophy of ethical self-regulation instead of an over-reliance on government policy to deal with certain improprieties and negative externalities that tend to disrupt the Net.

Securities Fraud and the Internet: Adapting Existing Regulatory Schemes to Regulation in Cyberspace

On 6th September, 2000 the SEC issued a press release accusing 33 companies and individuals of fraudulently using the Internet to make more than $10m in illegal profits by driving up the prices of more than 70 small stocks. The companies and individuals, including a bus mechanic, a car service driver and a self‐chilling can company, boosted the total market value of these stocks by $1.7bn, claimed the SEC, in announcing 11 civil fraud lawsuits filed in federal courts. ‘What used to require a network of professional promoters and brokers, banks of telephones and months to accomplish can now be done in minutes by a single person using the Internet and a home computer,’ SEC enforcement director Richard H. Walker said. Two weeks later, the SEC announced that it had settled an enforcement proceeding brought against a 15‐year‐old stock trader who, operating from a computer in a bedroom in his parents' home, had earned more than $270,000 in profits over a six‐month period by engaging in classic ‘pump and dump’ market manipulation of small over‐the‐counter stocks.

Europe and the Internet: The Old World and the New Medium

With the Internet being more or less an American affair, the question arises as to whether its regulation has also to be dominated by the US. This article explores different European attempts at regulating the Internet, taking Germany, France and the EU as examples. At least two problems emerge: regulatory fragmentation between different European states and between the EU and its Member States, and the fact that traditional legislative mechanisms probably work too slowly to cope with the development of Cyberspace. In spite of these European efforts, the US (through 'indirect unilateralism') still dominates Internet governance. It has privileged access to the level of Cyberspace regulation where the technical architecture of Cyberspace is determined, as illustrated by domain name system saga around ICANN (Internet Corporation for Assigned Names and Numbers). The conclusion is that, so far, Europeans have failed to shift the crucial issue of regulation of technical control over the Internet on to a truly international arena. The article acknowledges that it is not clear yet what a comprehensive international law approach to Internet governance could be like, but calls on international law to take up the issue of Internet governance and to take it seriously.