Federalism in Cyberspace Revisited
Dan L. Burk
Public availability and use of the Internet have proliferated rapidly in the United States over the past decade, opening new avenues of communication and of commerce. With this growth of Internet usage has come a surge of regulation at the international, national, and state levels. State regulation of Internet activity has included both application of existing law and enactment of new law and has been aimed at a wide range of real or perceived online evils: pornography, libelous statements, unsolicited bulk e-mail, fraudulent advertisements and sales, unauthorized use of publicly posted data, unwanted hypertext linking, electronic trespass to computers, and myriad other activities.
The potential negative effects of such state regulation on the growth and productivity of the Internet are at the very least alarming. The Internet extends beyond the boundaries of any of the states, and the effects of any particular state regulation will likewise spill over that state's borders. Such regulatory leakage implicates constitutional doctrines designed to preserve both the sovereignty of the individual states and the coherence of the United States as a whole. Thus, the prospect of states applying haphazard and uncoordinated multijurisdictional regulation to the Internet's seamless electronic Web raises profound questions regarding the relationship between the several states and the future of federalism in cyberspace.
Some commentators have dismissed this prospect as implicating only the most routine application of existing legal doctrine. 1 Such commentary adopts the position that new technology, particularly this technology, poses no unusual or fundamentally novel challenge to the current legal regime, only the “unexceptional problem” of Internet jurisdiction. 2 Yet, curiously, this exceptional “unexceptional” problem has been the subject of hundreds of legal disputes, scores of scholarly papers, and countless news stories. To read the