About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

2012 Jotwell: J. Things We Like [1] (2012)

handle is hein.journals/jotwell2012 and id is 1 raw text is: Law and Borders, Revisited http://cyber.jotwell.com/law-and-borders-revisited/ Marketa Trimble, The Future of Cybertravel: Legal Implications of the Evasion of Geolocation, 22 Fordham Intell. Prop. Media & Ent. L.J, (forthcoming 2012), available on SSRN. Michael Madison Fifteen years ago, David Post and David Johnson published what some still regard as the seminal paper of cyberlaw scholarship: Law and Borders: The Rise of Law in Cyberspace. Post and Johnson argued that because cyberspace was defined, in a way, by the very absence of territoriality, cyberspace should be governed by laws and lawmakers not tied in traditional ways to territorial states. That paper provoked a reply, Against Cyberanarchy, by Jack Goldsmith, and those two positions - cyberspace is different; no, it isn't- have pretty much defined the landscape of cyberlaw ever since. Later scholars have had little choice but to explore the implications and details of staking out intermediate positions. When and how does cyberspace differ, and what do we do about it? Marketa Trimble' s article approaches this topic by revisiting a species of the territorial question that prompted Law and Borders. How can and should the law address behavior online by people who are physically located in one place but who wish to create or manage online identities in other places? Trimble calls this the challenge of cybertravel, a phenomenon that is hardly new but that has taken on renewed significance as Internet technologies (and governments) have caught up to the many ways in which cybertravelers can be in more than one place at a time. The article describes the problem to be addressed in blunt terms. Governments have ongoing interests in effective taxation and in regulating at least some online behavior (gambling, for example), and commercial interests (often backed by govemnments) have strong interests in policing geographically-dependent use of intellectual property rights. Individual interests in online freedom and privacy, particularly in anonymous and pseudonymous behavior - in cybetravel -have long been threatened by both law and technology used to back interests in regulation. What has changed is the development and use of geolocation tools that have made it easier than ever for both governments and firms to determine where a particular online actor is located in physical space. That technological shift is compounded by the growing acknowledgement of the inadequacy soft law approaches to balancing government, commercial, and individual interests (that is, approaches grounded in application of jurisdictional rules in cyberspace-related litigation), and the undesirability from both technical and policy levels of accommodating those interests via compulsory or voluntary activity (such as the use of geographically-oriented filtering technology) at the service provider level. The question is, as it was 15 years ago, how to construct a manageable and sensible regime at the user level. Approaching this question, Trimble adopts a premise that may put off cyberlaw idealists: Borders should be viewed positively from a normative perspective. Borders are enabling (they help governments keep the bad

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most