Tales, Techs, and Territories: Private International Law, Globalization, and the Legal Construction of Borderlessness on the Internet
Slane, Andrea, Law and Contemporary Problems
The Internet has often been described as "borderless," owing to the technical features of Internet communications that make content accessible to anyone with a network connection, regardless of his or her location. This borderlessness has been widely thought both to confound legal regimes relying on territoriality and to fundamentally create a crisis for jurisdictional determination of both public- and private-law matters. The borderless Internet has thus entered into the loose pantheon of phenomena that herald the arrival of globalization--that vague collection of trends that purportedly erase, or at least significantly compromise, the authority of intermediary levels of social, political, economic, and legal orders such as the nation, state, or province. (1)
The coincidence of the popularization of Internet use and globalization rhetoric in the 1990s undoubtedly colored the interpretation of the legal significance of Internet technology. The legal handling of the Internet's capacity for uncontrolled crossing of territorial borders informs and shapes our understanding of the Internet in two ways: first, by framing the substantive issues arising from the application of local law as a conflict between a cosmopolitanism that embraces global community and a parochialism that thwarts global community; second, by framing procedural issues as a contest between simple and complex approaches to determining the significance of new legal circumstances arising from the technology or the relationships it enables, or both. Without such a critical examination into the legal framing of Internet borderlessness, we fail to truly appreciate that the substantive and procedural aspects of Internet-related cases work together to determine the legal meaning of Internet technologies.
One of the most striking features of cases that touch more than one jurisdiction through the Internet is how narrowly the interjurisdictional issues are often construed. As conflicts-of-laws scholars have complained in other contexts, courts in Internet cases almost always confine conflicts issues to the exercise of prescriptive or personal jurisdiction over a foreign defendant, which is collapsed with the determination that local law applies. In other words, courts in these cases virtually never engage in a full conflicts analysis to determine whether foreign law ought to be applied. (2)
The interjurisdictional issues raised in Internet tort cases, for instance, are quite often determined via the localization of the tort, wherein new circumstances introduced by Internet technology are converted into facts calling for a more straightforward exercise of territorial authority over people who have caused events to occur within a jurisdiction and so are naturally subject to local law. I do not attempt to explain here why this is so, leaving that for conflicts-of-laws scholars, but rather seek to set out how courts and scholars cast Internet technology's significance in resolving disputes that arise from online communications.
Cyberlaw scholarship can serve the role for legal scholarship that science--and-technology-studies scholarship plays for science (3)--that is, rejecting the assumption that technologies have fixed forms and neutral meaning, an assumption that conceals the ways technologies are socially influenced and their meaning constructed. (4) Some have advocated applying such critical methods to look at the law itself, (5)--that is, at the ways legal techniques are not natural or inevitable, and the ways that legal form has agency in the production of legal conclusions. (6)
This article takes up both of these theoretical orientations by critically examining the two levels of private international law's engagement with Internet technology, primarily in Canadian Internet-related tort cases with American defendants: (1) through tracing the various narrative figures that give legal meaning to Internet borderlessness by invoking the cosmopolitan-parochial rubric, and (2) through tracing the ways these cases promote simple or complex private-international-law methods as most appropriate to disputes arising from cross-border communications. …