Traditional Jurisdiction Theories vs. Cyber Jurisdiction

Where is cyberspace?' The answers to this question seem to approach the metaphysical: it is everywhere and nowhere; it exists in the smallest bursts of matter and energy and is called forth only by the presence of man through the intercession of an Internet provider. If the answers are useless, it only shows that we are asking the wrong question. We should first ask: what is cyberspace? To this question at least a functional answer is possible. Functionally, cyberspace is a place. It is a place where messages and web pages are posted for everyone in the world to see, if they can find them . The United States Supreme Court's first opinion about the Internet contains language that makes one hopeful that U.S. courts will accept the legal metaphor of cyberspace as a place outside national boundaries: Taken together, these tools constitute a unique medium-known to its users as 'cyberspace'-located in no particular geographical location but available to anyone, anywhere in the world, with access to the internet. Unfortunately, when the law confronts cyberspace the usual mode of analysis is analogy, asking not What is cyberspace? but What is cyberspace like? The answers are varied: a glorified telephone, a bookstore, a bulletin board. I propose that we look at cyberspace not in these prosaic terms, but rather through the lens of international law in order to give cyberspace meaning in our jurisprudence . The thesis of this paper is that there exists in international law a type of territory which I call international space. Currently there are three such international spaces: Antarctica, outer space, and the high seas. For jurisdictional analysis, cyberspace should be treated as a fourth international space. In cyberspace, jurisdiction is the overriding conceptual problem for domestic and foreign courts alike. Unless it is conceived of as an international space, cyberspace takes all of the traditional principles of conflicts-of-law and reduces them to absurdity. Unlike traditional jurisdictional problems that might involve two, three, or more conflicting jurisdictions, the set of laws which could apply to a simple homespun webpage is all of them. Jurisdiction in cyberspace requires clear principles rooted in international law. Only through these principles can courts in all nations be persuaded to adopt uniform solutions to questions of Internet jurisdiction.