Against “Against Cyberanarchy”
David G. Post
It makes me indignant when I hear a work Blamed not because it's crude or graceless but Only because it's new …
Had the Greeks hated the new the way we do, Whatever would have been able to grow to be old?
Horace, The Epistles, II, I
(David Ferry, Trans.)
Professor Jack Goldsmith's “Against Cyberanarchy” 1 has become one of the most influential articles in the cyberspace law canon. The position he sets forth—what I call “Unexceptionalism”—rests on two main premises. The first is that activity in cyberspace is “functionally identical to transnational activity mediated by other means” (e.g., “mail or telephone or smoke signal”). The second is that, as a consequence of this functional identity, the “settled principles” and “traditional legal tools” of the international lawyer are fully capable of handling all jurisdictional and choice-of-law problems in cyberspace—that the “choice-of-law problems implicated by cyberspace are not significantly different from those [of] noncyberspace conflicts,” and that we therefore need make no special provision for these problems when they arise in cyberspace.
I beg, in what follows, to differ. I remain an unrepentant Exceptionalist. Communication in cyberspace is not “functionally identical” to communication in real space—at least, not in ways relevant to the application of the choice-of-law and jurisdictional principles under discussion, nor can the jurisdictional and choice-of-law dilemmas posed by cyberspace activity be adequately resolved by applying the “settled principles” and “traditional legal tools” developed for analogous problems in real space.