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

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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

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