Prescriptive Jurisdiction over Internet Activity: The Need to Define and Establish the Boundaries of Cyberliberty

Globalization occurs at the nexus of politics, culture, technology, finance, national security, and ecology.“Globalization” refers to the increasingly “complex, dynamic legal and social processes” occurring throughout the world. It is the development of a global mindset that challenges the traditional political, social, and economic characteristics of nations and has led to the “deterritorialization and reterritorialization of [vast] policy spaces.” Many of the changes and challenges attributed to globalization rely on the exchange of information throughout the world, making “the flow of ideas across national borders” a key agent of globalization. Due to the increasing availability of personal computers and software, the Internet provides the ideal forum for information transfer.

The Internet engenders “the notion of distributed power: decentralization, openness, possibility of expansion, no hierarchy, no center, no conditions for authoritarian or monopoly control.” The Internet has become vital to the broader dynamics of organizing global society, “both economically and politically.”

One of the vital aspects of organizing global society has been individual liberty. With the introduction of the Internet, traditional notions of liberty are challenged.
The global reach of information transfer requires examining liberty in its new form—“cyberliberty.” Cyberliberty expands across all borders, affects all nations, and as of yet, has not been defined by any nation. This note recommends a definition of cyberliberty in order to provide a legal foundation for regulating conduct on the Internet. The definition is predicated upon freedom from the control and influence of states through their assertion of prescriptive jurisdiction, a liberty that has always been an essential element of sovereignty.

Part I briefly describes how traditional international law principles of prescriptive jurisdiction have been applied to activities on the Internet. It then identifies some limits to these methods that arise from the unique characteristics of the Internet. Part II surveys philosophic conceptions of liberty, recognizing the implications of liberty on the Internet, and recommends a definition of cyberliberty that favors expansive liberty and clear expectations for Internet actors.