The Fallacy of the Cyberspace Fallacy: A Re-Examination of Cyberlibertarianism

• Date: 01 January 2018

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e Fallacy of the Cyberspace Fallacy:

A Re-Examination of Cyberlibertarianism

BARRY O’FIACHÁIN*

Introduction

Fundamental to the operation of law is the certainty of knowing when it does and

does not apply. As a general rule, where the geographical location of an individual

or object at a particular time is determinable, the appropriate legal jurisdiction

and corresponding legal regime can be easily inferred.1 However, when applied to

cyberspace, this seemingly straightforward principle becomes more complicated.

Early conceptions of cyberspace were of a utopia where individuals could escape

their physical boundaries like never before.2 is cyberlibertarian idea asserted

that within the virtual world, eective regulation by real world states could not be

achieved. Over time however, this way of thinking has withered away. Since the

introduction of Chris Reed’s ‘cyberspace fallacy’ argument, there has been a general

consensus that cyberlibertarianism has been undermined and discredited.

In the time since the introduction of the ‘cyberspace fallacy’ argument it has become

clear that the structure of the internet and its regulation are not as simple as those

who rejected cyberlibertarianism once suggested. Our perceptions of the internet

have changed. While we traditionally saw the act of visiting a website as involving a

request sent to a remote server, which subsequently returns text and images, we now

consider it akin to travelling to a legitimate place.3 e cyberlibertarians appear to

have appreciated this dierence before anyone, but, at the time, the internet was

too young for us to fully understand the impact one’s choice of perspective can

have. is is no longer the case.

In addition to the debate over perspective, jurisdictional complications persist in

the attempt to introduce an eective regulatory system capable of transcending

borders. Such problems have been exacerbated by the development of technology

itself. An ever changing and advancing phenomenon, this development is clearly

something the law has struggled to keep pace with. All of this development and

legal diculty appears to lend renewed credibility to cyberlibertarianism and

* B.C.L. (Politics) (UCD), LL.M. (LSE), Trainee Solicitor at A&L Goodbody.

1 Chris Reed, Internet Law: Text and Materials (2nd edn, Cambridge University Press 2004) 217.

2 Mary Anne Franks, ‘Unwilling Avatars: Idealism and Discrimination in Cyberspace’ (2011) 20

Columbia Journal of Gender and Law 225.

3 Orin S. Kerr, ‘e Problem of Perspective in Internet Law’ (2003) 91 e Georgetown Law Journal

386.

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forces us to question whether the cyberspace fallacy argument properly addresses

its claims. Until now, the answer has been overwhelmingly yes, but it may be time

to re-examine cyberlibertarianism from the internal perspective, rather than the

traditional external perspective. It may be that the only fallacy to be found is in the

arguments that dismissed the cyberlibertarian ideas as fallacy.

e aim of this paper is to carry out that re-examination of the cyberlibertarian

position from an internal perspective, while having regard to network

communitarianism, in order to test the strength of Chris Reed’s cyberspace fallacy.

A selection of seminal case law in this area will be analysed, before considering

whether cyberlaw is capable of overcoming its jurisdictional and technological

obstacles and eectively regulating the internet.

Cyberlibertarianism and e Cyberspace Fallacy

Cyberlibertarianism describes an ideology that views the internet and the

development of associated technologies as decentralised and liberating modes of

communication that operate outside the remit of centralised governments. Due to

the connement of laws to the jurisdiction in which they operate and the ability

of online content to ow without regard to geographical or political borders,4

cyberlibertarians believe that the internet is a borderless environment, incapable

of legitimate and eective regulation by traditional law-makers.5 is borderless

environment allows those in cyberspace to engage in regulatory arbitrage, whereby

they take advantage of the choice between regulators to achieve a regulatory

settlement which will not impact on their activities.6

In this vein, Johnson and Post argued that cyberspace should be recognised as a

separate legal jurisdiction from the real world, without recourse to national courts

and laws.7 Such a jurisdiction would be capable of self-regulation by online users

and service providers and would transcend the boundaries of national sovereignty.8

Similarly, John Perry Barlow declared that the internet cannot be subject to any

existing law making authority and that the governments of the world have no

sovereignty over it.9 is statement was in response to the introduction by United

States legislators of the Telecommunications Act of 1996, through which, Barlow

4 Reed (n 1) 217.

5 Andrew Murray, Information Technology Law: e Law and Society (2nd edn, Oxford University

Press 2013), 55.

6 ibid 58.

7 Lorna E. Gillies, ‘Addressing the “Cyberspace Fallacy”: Targeting the Jurisdiction of an Electronic

Consumer Contract’ (2008) 16 International Journal of Law and Information Technology 244.

8 David R . Johnson and David Post, ‘Law and Borders: e Rise of Law in Cyberspace’ (1996) 48

Stanford Law Review 1388.

9 Andrew Murray, ‘Uses and Abuses of Cyberspace: Coming to Grips with the Present Dangers’ in

Antonio Cassese (ed), Realising Utopia: e Future of International Law (Oxford University Press

2012) 500.