Hildebrandt, Mireille. Extraterritorial Jurisdiction to Enforce in Cyberspace.

7/22/2019 Hildebrandt, Mireille. Extraterritorial Jurisdiction to Enforce in Cyberspace.

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Focus: Criminal Jurisdiction

Mireille Hildebrandt* EXTRATERRITORIAL JURISDICTION TO

ENFORCE IN CYBERSPACE? BODIN,

SCHMITT, GROTIUS IN CYBERSPACE

What is at stake if justice authorities decide to hack a computer system that is physi-cally located on a server outside the territory of the state they representfor instance,because a malicious attack was operated from foreign territory, causing seriousharm to a variety of computing systems? The article explores potential answers to

this question, starting with a discussion of themakings of territorial jurisdiction.My starting point is an inquiry into the territorial spatiality of modern jurisdictionthat traces the history of the idea of mutually exclusive jurisdiction that informsinternational law. I will argue that such territorial spatiality has been generated bythe technologies of cartography and discuss how this connects with the notion of ter-ror, with Bodins absolute sovereignty, and with Schmitts understanding ofoccu-patio as central to territorial sovereign jurisdiction. Next, I investigate the powersof extraterritorial jurisdiction in the light of GrotiussMare Liberum. His naturallaw theory entails that the high seas be seen as a passageand a global commons

that enable free trade and the common good of mutual collaboration between inde-pendent states. The eschatological overtones of Grotiuss belief in the moral and eco-nomic benets of free trade have been coined economic theology by Agamben,

paraphrasing Schmitts political theology.We can detect a similar economic theol-ogyin early descriptions of the benets of cyberspace. This, nally, raises the ques-tion of the feasibility and the desirability of a cyberspace liberum, taking intoaccount various attempts to gain control over parts of cyberspace for instance, bymeans of a so-called indirect extraterritorial effect. I conclude with the question of whether we can sustain cyberspace as a passage and as a global commons, consider-ing its non-modern spatiality and keeping in mind how it engages with the land-

scape of territorial jurisdiction while often evading that jurisdictions core of mutually exclusive boundaries.

Keywords: extraterritorial jurisdiction to enforce, cyberspace, Bodin,Schmitt, Grotius,Mare Liberum, cyber security, cybercrime

* Institute of Computing and Information Sciences (iCIS), Radboud University Nijme-gen; Erasmus School of Law, Rotterdam; Centre for Law, Science, Technology & Soci-ety, Vrije Universiteit Brussel.


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I Introduction

What is at stake if our justice authorities decide to hack a computer systemthat is physically located on a server outside the territory of the state theyrepresentfor instance, because a Web bot was operated from that loca-tion,1 causing serious harm to a variety of computing systems in our own

jurisdiction that renders the perpetrator criminally liable under our owncriminal law? How would we respond to Ukrainian, Chinese, Iranian, Brit-ish, or Argentinian justice authorities that hack a computer system that islocated within our own jurisdiction? Does it make a difference whether thehack by law enforcement authorities targets a dissident whose right to free

speech is denied or a network disseminating child pornography? Shouldwe evaluate such groping for extraordinary jurisdiction in terms of just ver-sus unjust causes (a bellum iustum privatum) or is this about the Westphalianinterplay of internal and external sovereignty? Might the attempt to extendor initiate extraterritorial jurisdiction to enforce be understood as an occu-patio, grounded in what some have termed a-legality,2 or should we followthe principles of Grotiuss Mare Liberumand consider cyberspace to be acommon good that requires us to reinvent natural law theory?

In the following, I start with a brief introduction on the move from

computer crime to cybercrime, explaining how this connects to the no-tions of cyberspace and cybernetics (Part II). Next, I discuss sovereigntyand the makings of territorial jurisdiction. This is achieved by eshingout the territorial spatiality of modern jurisdiction by tracing the historyof mutually exclusive jurisdictions generated by the technologies of car-tography; by tracking down the connection between terror and Bodinsabsolute sovereignty;3 and nally, by inquiring into the notion of

1 A botis an automated software program that can execute certain commands whenit receives a specic input (a ro-bot); see Techterms.com, sub verbo bot, online:. It can be used to search or crawl the

Web to retrieve information. In the case of cybercrime, [a] zombie (also known as abot) is a computer that a remote attacker has accessed and set up to forward transmis-sions (including spam and viruses) to other computers on the Internet. The purposeis usually either nancial gain or malice. Attackers typically exploit multiple compu-ters to create a botnet, also known as a zombie army;bot,online: ; see also, SearchSOA, sub verbo botnet, ibid; Search-MidMarketSecurity, sub verbo zombie, online: .2 E.g. (based on Carl Schmitt) Hans Lindahl,A-Legality: Postnationalism and the Ques-tion of Legal Boundaries (2010) 73 Mod L Rev 30 [Lindahl]; Markus D Dubber,

EXTRATERRITORIAL JURISDICTION TO ENFORCE IN CYBERSPACE? 197
http://www.techterms.com/definition/bothttp://www.techterms.com/definition/bothttp://www.techterms.com/definition/bothttp://searchsoa.techtarget.com/definition/bothttp://searchsoa.techtarget.com/definition/bothttp://searchsoa.techtarget.com/definition/bothttp://searchsoa.techtarget.com/definition/bothttp://searchmidmarketsecurity.tech-target.com/definition/zombiehttp://searchmidmarketsecurity.tech-target.com/definition/zombiehttp://searchmidmarketsecurity.tech-target.com/definition/zombiehttp://searchmidmarketsecurity.tech-target.com/definition/zombiehttp://searchmidmarketsecurity.tech-target.com/definition/zombiehttp://searchmidmarketsecurity.tech-target.com/definition/zombiehttp://searchsoa.techtarget.com/definition/bothttp://searchsoa.techtarget.com/definition/bothttp://www.techterms.com/definition/bot


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occupation as central to territorial sovereign jurisdiction (Part III). Thisprepares an inquiry into the powers of extraterritorial jurisdiction in the

light of Grotiuss Mare Liberum, interpreting the freedom of the seas asan economic theology4 in the sense of Agamben and as a solutionbased on natural law theory (Part IV). Finally, I discuss the idea of a cy-berspaceliberum,beginning with the question of the experiential unre-gulability of cyberspace, following up with an account of variousattempts to gain control over parts of cyberspace for instance, bymeans of the so-called indirect extraterritorial effect. I conclude with aquestion. Studying the implications of the use of extraterritorial searchand seizures in cyberspace confronts us with the issue of spatiality. Cyber-

spaces demand a reconceptualization of jurisdiction in terms of novelspatialities. This means a critical stance toward cyberspace as a mere uto-pia and a rejection of cyberspace in the sense of a mere isotopia whoseregulation can be framed on the regulation of territorial sovereignty andthe freedom of the sea. The question is whether we can sustain cyber-space as a passage and a global commons even though cyberspace is aheterotopia,5 crossing over into the landscape of territorial jurisdiction

while also evading its mutually exclusive boundaries. It would be prepos-terous to pretend that I can do more in this article than spell out the per-

tinence of this question (PartV).

II From computer crime to cybercrime

In the olddays, one could speak ofcomputer crime,conveniently dis-criminating between criminal offences againstcomputers (hacking), of-fences withcomputers (a distributed denial of service attack DDOS), oroffenceswhereby computers played an incidental role(for instance, storing the

evidence).6 The exponential growth of the Internet, the World WideWeb, search engines, online gaming, and social networking sites and ahost of applications for mobile devices has resulted in the integration ofofine and online life worlds, creating a continuity of cyberspacesthat in-terconnect, transform, and redirect spaces, events, and time lines. Thishas not only changed our sense of place and duration; it has also altered

4 Giorgio Agamben,The Kingdom and the Glory: For a Theological Genealogy of Economy andGovernment, translated by Lorenzo Chiesa & Matteo Mandarini (Stanford, CA: Stan-ford University Press, 2011) [Agamben].

198 UNIVERSITY OF TORONTO LAW JOURNAL


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the unity of time, place, and action that informed the notion ofactus reusin the criminal law. Physical actions behind a computer screen can easily

trigger devastating consequences in other time zones, on other conti-nents, stretching the scope of what qualies as an action. Understandingan action in terms of its effects, even if they occur at a distance from theoriginal physical motion, is not a new thing. People can act through vari-ous types of instruments and even use other people to commit fraud, mur-der, or criminal damage. In fact, this has led to the effects doctrine in thecase of transnational crime: if criminal harm has been caused in the terri-tory of a state, that state can punish the perpetrator even if she was outsidethe territory when committing the crime. For a long time, however, the

default has been that the criminal law applies only to those within the ter-ritory of the state; extraterritorial jurisdiction has been the exception.This is even more clearly the case for jurisdiction to enforce. In thefamousLotuscase, the Permanent Court of International Justice decidedthat extraterritorial jurisdiction to prescribe is allowed in the case of aneffect within the territory or to a national of the state, whereas extraterri-torial jurisdiction to enforce is, in principle, not allowed unless the otherstate agrees (by treaty or in the course of judicial or police cooperation).7

This prohibition is challenged by the emergent transnational cyberspace

to the extent that the investigation of crimes committed with or againstcomputing systems cannot restrict itself to localcomputing systems. Thegradual shift towards cloud computing amplies this challenge.8

Meanwhile, the distinction between crimes with or against computersseems to miss the point, since the most salient factor in cybercrime is not astand-alone computer but a networked computing system that is intercon-nected with other computing systems, RFID-tagged commodities,9 humanimplants, smart mobile devices, and smart homes. Attacks against thesesystems proliferate, vulnerabilities abound, malware is rened, reinvented,copied, and commodied and the number, the effects, and the gravity ofcybercrime offences increase by the minute. The combination of

7 SS Lotus (France v Turkey Case)(1927), PCIJ (Ser A) No 10.8 In that respect, the jurisdictional vacuum of cyberspace may resemble that of the high

seas;cf. Steven R Swanson, Google Sets Sail: Ocean-Based Server Farms and Interna-tional Law(2009) 43 Conn L Rev 709.

9 RFID tags are intelligent bar codes that can talk to a networked system to track every

product that you put in your shopping cart . . . RFID tags, a technology once limitedto tracking cattle, are tracking consumer products worldwide. Many manufacturersuse the tags to track the location of each product they make from the time its made



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simultaneity, speed, and automation of machine-to-machine communica-tion in cyberspace produces the famous network effect that constitutes

potentially critical threats to identity management systems (IDMs), per-sonal data, trade secrets, and public infrastructure.10 One of the majorsoftware security companies, Symantec, reported more than 403 millionunique variants of malware over 2011; worldwide around 1.1 million iden-tities were exposed per data breach, amounting to a total of 232.4 millionbreaches. Vulnerabilities in mobile computers (smartphones) increasedby 42% in 2011, while, in total, 4 989 new vulnerabilities were detected.Rustock, the largest botnet of 2010 had well over 1 million bots under itscontrol; it was shut down in 2011 causing spam rates to plummet (from

88.5% of all e-mail in 2010 to 75.1% in 2011). In 2010, in an undergroundeconomy advertisement, 10 thousand bots (often used for DDOS attacks)

were promoted for $15, whereas the price range for a stolen credit cardnumber was between $0.07 and $100.11 Most of these types of attacks canbe made from outside the territory of the targeted state, and even if anattack is initiated within the same state there is a high probability that com-puting systems outside that state will be somehow involved for instance,but not only, in the case of cloud computing. Instead of speaking ofcom-putercrime, it makes sense to use the term cybercrime,highlighting the

fact that many of the relevant crimes take place in the realm of intercon-nected computing systems and are somehow related to both cyberspaceand cybernetics.12 To understand the challenges to extraterritorial juris-diction in the age of interconnected digital infrastructures, we need toexplore, at least briey, the notions of cyberspace and cybernetics.

10 E.g. on the network effect for cybersecurity issues, Konstantin Beznosov and OlgaBeznosova,On the Imbalance of the Security Problem Space and Its Expected Conse-quences (2007) 15 Information Management & Computer Security 420 at 429,doi:10.1108/09685220710831152. On network effects and its relevance for law, see e.g. Katherine J Strandburg et al., Law and the Science of Networks: An Overview andan Application to thePatent Explosion(2006) 21 Berkeley Tech LJ 1294.

11 Symantec Enterprise Security, Trends for 2012 (2011) 16 Internet Security ThreatReport, online: Symantec ; Symantec Enter-prise Security, 2011 Trends (2012) 17 Internet Security Threat Report, online: Sy-mantec .

12 In principle, the present article restricts itself to criminal jurisdiction to enforce,though we must admit that the distinction between crime and war will require hard

work in cyberspace. On espionage and foreign intelligence, see e.g. David E Sanger,Obama Ordered Wave of Cyberattacks against Iran The New York Times (1 June2012), online: NYTimes


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A CYBERSPACE

The term cyperspace was coined by science ction author William Gib-

son, in 1984, in his novelNeuromancer. He describes it as[a] consensual hallucination experienced daily by billions of legitimate opera-

tors, in every nation, by children being taught mathematical concepts . . . A gra-

phical representation of data abstracted from the banks of every computer in

the human system. Unthinkable complexity. Lines of light ranged in the non-

space of the mind, clusters and constellations of data.13

We should note that Gibson coined the term before anything like whatwe now call cyberspace existed. In fact, the Internet, the interconnection

between different computing systems on the basis of the TCP/IP proto-col, was still under construction when he published his novel. The WorldWide Web originated even later, in the early nineties, on the basis of thehttp and html protocols that enable hyperlinking, thus creating what isoften called a virtual space in which humans and machines from any-

where can communicate, exchange information, and present themselvesany time anywhere to anyone. The unprecedented collapse of geograph-ical and temporal distance that was generated by the Internet and Webcreated the euphoria of cyber-utopianism and cyber-exceptionalism.

The idea was that cyberspace allowed for a new type of direct democracy,outside the reach of territorial governments or commercial enterprise.In 1996, John Perry Barlow published his cyberspace manifesto,14

claiming that cyberspace was inherently unregulable that its technolog-ical foundations resisted territorial boundaries and thus disabled lawenforcement based on a physical monopoly of violence. In the wake ofsuch optimism, Castells announced the demise of the nation state, stillbased on mutually exclusive jurisdictions, suggesting that territorialstates are like dinosaurs in the evolving network society.15 Legal scholar-

ship developed along similar lines: also in 1996, David R Johnson andDavid B Post wrote their famous Law and Borders The Rise of Law inCyberspace,16 arguing that Cyberspace is a distinct, separate space

where geographical borders and territorial jurisdiction make no sense.They explain that cyberspace is not a physical space and therefore doesnot fall under the powers of sovereigns whose control is limited to

13 William Gibson,Neuromancer(New York: Ace, 1984) at 51.

14 John Perry Barlow, A Declaration of the Independence of Cyberspace(Davos, Switzerland:1996), online: .

http://w2.eff.org/Censorship/Internet_censorship_bills/barlow_0296.declarationhttp://w2.eff.org/Censorship/Internet_censorship_bills/barlow_0296.declarationhttp://w2.eff.org/Censorship/Internet_censorship_bills/barlow_0296.declarationhttp://w2.eff.org/Censorship/Internet_censorship_bills/barlow_0296.declaration


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whoever and whatever stays within their territory; they go on to point outthat, in cyberspace, the assumption that the effects of any particular be-

haviour are restricted by physical proximity does not hold. They suggestthat such proximity informed the legitimacy of territorial government,notably because these physical constraints allow governments to givenoticeof a change in the law. They proclaim,

Because events on the Net occur everywhere but nowhere in particular, are

engaged in by online personae who are both real(possessing reputations, able to

perform services, and deploy intellectual assets) andintangible(not necessarily or

traceably tied to any particular person in the physical sense), and concern things

(messages, database, standing relationships) that are not necessarily separated

from one another by any physical boundaries, no physical jurisdiction has a morecompelling claim than any other to subject these events exclusively to its laws.17

In Cyberspace as/and Space,Julie Cohen traces the various positionson what she calls the cyberspace metaphor.18 She discusses Johnson andPosts cyber-exceptionalism, various types of traditionalism that view cyber-space as just another communications network, postmodernist culturalstudies that claim to uncover undesirable political and ideological implica-tions, and nally she considers the cognitive theory that proclaims the

inevitability of place- and space-based metaphors, as dictated by our cogni-tive make-up. Cohen, however, rejects the easy dichotomies betweencyber- and physical space that inform much of the debate. She notes that

To say that humans reason spatially is not to say that we are place-bound, or

property-bound, but simply to say that we are embodied, situated beings, who

comprehend even disembodied communications through the lter of embo-

died, situated experience.19

Her point is that understanding cyberspace as either a separate space

(often a utopia) or a space that continues existing space (an isotopia)are two easy ways out of a far more complex challenge. Referring to Fou-caults term heterotopia, she denotes cyberspaces as real spaces in

which ordinary rules of behaviour may be suspended or transformed ascompared to ordinary spaces, thus highlighting the relation betweencyber- and ordinary spaces as well as the embodied spatiality of cyber-space users, who are situated in both spaces at once.20 She concludes

17 Ibid at 1376.18 Cohen, supra note 5.



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that utopian theories of cyberspace as an entirely separated space failnot because of their unregulability but because of the untenable pre-

sumption of experiential separateness. In this way, she goes one radicalstep further than Lessig and Reidenberg, who, according to Cohen, de-monstrated that the unregulability of cyberspace was neither a perma-nent nor a technologically necessary feature.21 In opting for aheterotopian conception of cyberspace, Cohen acknowledges both themalleability of cyberspace and the fact that such malleability can bemade to serve the economic and political goals of businesses as well asgovernments.22 In foregrounding the embodied spatiality of cyberspaceusers, she can, moreover, come to terms with the fact that cyberspace is

not a unitary phenomenon but a rich variety of entanglements betweenvirtual and physical spaces that are real to the extent that they generatereal consequences. Cybercrime, from this point of view, is a unitary con-cept for a diversity of criminal offences that play out on the nexus of theInternet, the Web, and a plethora of applications that generate real con-sequences for legal subjects across a multiplicity of national jurisdictions.Geography and territory seem to loose their hold on the effects of mali-cious attacks due to the unprecedented possibilities for the invisibleremote control of computing systems.

B CYBERNETICS

This explains the relevance of the notion ofcybernetics,which derivesfrom the same Greek root as governing, both meaning to steer, rule,guide.23 Cybernetics refers to the study of control at a distance and wascoined as such by Norbert Wiener in 1948.24 It concerns the use of tech-nologies to affect the behaviours of remote systems and is closely relatedto the development of articial intelligence. It is important to observe

that cyberspaces situated at the nexus of online and ofine life-worldsare built on a computational layer that produces sophisticated articialintelligence for business enterprises and governmental agencies. In bothcases, algorithms are used to mine so-called big data to predict

21 Ibid at 217, referring to Lawrence Lessig,Code and Other Laws of Cyberspace(New York:Basic, 1999); Joel R. Reidenberg, Lex Informatica: The Formulation of Information PolicyRules through Technology(1998) 76 Tex L Rev 553.

22 Ibid at 222.

23 Online Etymology Dictionary, sub verbo cybernetics, online: [OnlineEtymology].24 Norbert Wiener, Cybernetics: Or the Control and Communication in the Animal and the

http://www.etymonline.com/index.php?term=cyberneticshttp://www.etymonline.com/index.php?term=cyberneticshttp://www.etymonline.com/index.php?term=cyberneticshttp://www.etymonline.com/index.php?term=cybernetics


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consumer or criminal behaviours, aiming to pre-empt human intentionon the basis of proling technologies such as machine learning, articial

neural networks, and the more.25

Cyberspace is not merely a placewhere registration is becoming paramount, pervasive, and highly prot-able. Increasingly, it is becoming a space rooted in a layer of automateddecision-making systems. These computational layers enable and informall kinds of remote control, which are not only used to create added

value for the industry or to uncover criminal networks; they also under-pin malicious attacks against both individual netizens and private andpublic organizations. The increasing use of tracking technologies toenable data analytics produces a host of novel vulnerabilities that enable

misuse, abuse, and attacks against individuals, systems, and infrastruc-ture. The fact that the Internet facilitates remote control across nationalborders at low costs basically means that the fundamental assumptions ofterritorial criminal jurisdiction will increasingly fail to describe accu-rately what is at stake. This presents an intriguing challenge to the terri-torial basis of internal and external sovereignty as we know it.

III Sovereignty and themakingsof territorial jurisdiction

At this point, we need to be reminded that the interplay of internal andexternal sovereignty that denes the modern state is not only constitu-tive for the power to enact, to enforce, and to speak the law within a spe-cic territory. It is also a condition of possibility for the protection ofhuman rights and for the internal division of sovereignty that denes therule of law. Such protection depends on the monopoly of violence withina specic jurisdiction that enables enforcing the law as determined bythe courts. Though Montesquieu is rightly applauded for having argued

for the internal division of sovereignty,26 it is imperative that we acknowl-edge that, without such sovereignty, there is nothing to divide. Withoutsome form of sovereignty as we know it, there is no actor that can be ad-dressed as the subject of the negative and positive obligations that

25 Andrew McStay, The Mood of Information: A Critique of Online Behavioural Advertising(New York: Continuum, 2011) at 3. McStay indicates how proactive computing allowsfor the pre-empt of users intention by always remaining one step ahead of them on

the bases of machine learning techniques. This is how behavioural advertising workstoday. For a critique of such predictive analytics in the sphere of the criminal law seeBernard E Harcourt,Against Prediction: Proling, Policing, and Punishing in an Actuarial



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constitute human rights law. If territory loses its dening role in consti-tuting jurisdiction we cannot take for granted that such historical arte-

facts as human rights and the rule of law will be sustainable. We shouldadmit that even the enforcement of international human rights law de-pends on national courts and national enforcement.27 To come to termswith the consequences of a post-territorial spatiality, we need to inquireinto the specic makings of jurisdiction in the era of territory. To thisend, I will investigate the rise of territorial jurisdiction and its relation tomodern cartography and then analyse terror, territory, and occupationas the foundations of modern sovereignty.

A THE TERRITORIAL SPATIALITY OF MODERN JURISDICTION

Jurisdictionis a term rst encountered in the early fourteenth century,initially referring to the administration of justice and soon meaningextent or range of administrative power.28 The term territory rst ap-peared in the early fteenth century, then meaning land under the

jurisdiction of a town, state, etc.29 Thus jurisdiction is the older termandterritorywas initially dened in terms of jurisdiction. This suggeststhat jurisdiction need not be based on territorial rule and that the con-

cepts of sovereignty and of territory, de

ning characteristics of jurisdic-tion, emerged simultaneously in modern history. In Laws Territory (AHistory of Jurisdiction),Richard Ford develops two theses on the historyand scope of territorial jurisdiction.30 One thesis is that territorial juris-dictions, the rigidly mapped territories within which formally denedlegal powers are exercised by formally organized governmental institu-tions,31 are a recent invention, even though we tend to take them forgranted and have problems imagining jurisdiction that is not dened byterritory. The second thesis is that territorial jurisdiction is an affordance

of modern cartography,32

in the sense that it could not have developed

27 This is why the study of international relations cannot assume the balance of powerthat inheres in the rule of law, frequently taking refuge in a social scientic oftencalled realist understanding of international law. A refreshing alternative can befound in Claude Lefort, Writing: The Political Test, translated by David Ames Curtis(Durham, NC: Duke University Press, 2000).

28 Online Etymology, supra note 23,sub verbojurisdiction,quotingOED Online.29 Ibid,sub verboterritory.

30 Richard T Ford, A History of Jurisdiction(1999) 97 Mich L Rev 843 [Ford].31 Ibid at 843.32 On the role of cartography in the formation of the modern state, see also Michael



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without the modern, scientic demarcation of distinct territories that de-pends on cartography as its enabling technology.33 This observation is of

great import for our investigation because, if correct, it raises the ques-tion of whether cyberspace will overrule the specic production of spacethat is inherent in cartographic mappings and its affordances in terms ofterritorial jurisdiction. Ford highlights four prototypical characteristicsof modern, territorial jurisdiction: rst, he conrms that, if jurisdiction isterritorially dened, this means that authority is to be exercised primar-ily by area, instead of status or family; second, he notes that territorial

jurisdiction is denitely bounded and that these boundaries are notambiguous or contested (except in times of crisis or transition); third,

he notes that territory is abstractly and homogeneously conceived, mean-ing that jurisdiction refers to an abstract space in the sense that theauthority does not depend on the concrete characteristics of the terri-tory it concerns. Ford points out that such abstract and homogeneousmapping implies authority over an empty space, dened by latitude andlongitude, not by its contingent contents. As a result such mappingelimi-nates the need for the specic enumeration and classication of whatever re-sides in the territory, at least for the constitution of authority.34A relatedimplication is that actual social relations and the distribution of re-

sources are invisible from the perspective of the abstract map; theabstraction of modern jurisdiction presents social and political relation-ships as impersonal. One could sum this up as the proposition that mod-ern jurisdictional space is conceptually empty: jurisdiction reducesspace to an empty vessel for government power.35 His fourth point isthat cartographic mapping produces a gapless map of contiguouspolitical territories,36 thus grounding the Westphalian system of

33 The concept of an affordance was coined by psychologist James J Gibson. See James GGreeno, Gibsons Affordances (1994) 101 Psychological Review 336 at 338: Theterm affordance refers to whatever it is about the environment that contributes to thekind of interaction that occurs.It thus indicates what a specic technology makes pos-sible for a specic organism or type of person, entailing a non-deterministic and rela-tional understanding of both technology and the human subject. This implies thattechnologies have normative implications; see Mireille Hildebrandt, Legal and Tech-nological Normativity: More (and Less) Than Twin Sisters(2008) 12:3 Techn 169.

34 Ford, supra note 30 at 854 [emphasis in the original].35 Ibid at 854. The notion of mutually exclusive territorial jurisdictions as the enabling

metaphor for the Westphalian system describes a way of looking at jurisdiction. It cre-ates the institutional fact of internal and external sovereignty. Compare Friedrich Kra-tochwil,Of Maps, Law, and Politics: An Inquiry into the Changing Meaning of Territoriality



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mutually exclusive territorial jurisdictions. Ford goes on to explain thatterritorial jurisdictions are inherently synthetic (articial) to the extent

that they do not depend on an organically grown Gemeinschaft; they stipu-late who falls within the scope of the jurisdiction irrespective of social sta-tus or family relationship. In this way, the individual becomes theprimary agent, instead of the religious, ethnic, or other group she maybelong to. This allows governments to base their rule on a strange com-bination of articial administrative units and an appeal to the loyalties ofa thicker community, which is not given and must be constructed. Inshort, Fords history of modern jurisdiction demonstrates that [t]heabstract space created by modern cartography, what we will call territo-

rial jurisdiction, was the midwife of the administrative state.37

B TERROR AND MODERN SOVEREIGNTY

InThe Ethos of Pluralization,38 William E Connolly discusses the notion ofterritory in a way that seems remarkably relevant for our purpose. Thefollowing passage is worth quoting at length:

Territory, the Oxford English Dictionary says, is presumed by most moderns to

derive fromterra. Terrameans land, earth, soil, nourishment, sustenance; it con-

veys the sense of a sustaining medium that fades off into indeniteness. People,

you might say, feel the claim the land they belong to makes upon them. This

experience of belonging to a place, as long as it does not exclude other identi-

cations, and as long as it incorporates the disruptive experiences of earthquakes,

tornadoes, oods, and restorms into the experience itself (this essay is being

written during a year in California), can play a positive role in the cultivation of

care and critical responsiveness. But the form of the wordterritory, theOEDsays,

suggests something different from the sustenance ofterra. Territoryderives from

terrere,meaning to frighten, to terrorize, to exclude. And territorium is a place

from which people are warned.Territoriumseems to repress the sustaining rela-

tion to land that it presupposes. Perhaps a modern territory, then, is land orga-

nized and bounded by technical juridical, and military means. Perhaps the

experience of land as sustenance is both presupposed and repressed by the

modern organization of territory. To occupy territory, then, is both to receive

sustenance and to exercise violence. To become territorialized is to be occupied

by a particular identity.39

37 Ibid at 870.



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We could summarize Connolly as proposing that territory is sustainingland occupied and bounded by violence.40 I would like to suggest that

this links territorial jurisdiction to the monopoly of violence and claimthat the territorial monopoly of violence is the foundation of the mod-ern state. It provides a gaplessmap of mutually exclusive sovereign enti-ties that denes and determines their internal and external sovereigntysince the peace of Westphalia. This gaplessmap also underlies Bodinstriple denition of absolute power that still informs our understandingof sovereignty, even when we confront its limits.41 The impact of BodinsOn Sovereignty(1576) warrants a brief discussion here, linking notions ofterritory with those of occupation and a-legality.

As Goyard-Fabre has argued,42

Bodin should not be understood as anadvocate of corrupt absolutism. His main concern was the protection oftheres publica, which he thought could only be safeguarded if the sover-eign could not be corrupted by other powers within his realm. The sover-eign should not be seen as the most powerful person, but as the highestofce, tasked with the safety and the well-being of his subjects. Bodin ar-ticulated three constitutive conditions for such sovereignty: the puissancepublique de commandement, the continuit de la puissance publique, and thepuissance absolue. The rst marks the transition fromsuzereignty feudal

lordship based on a complex asymmetrical reciprocity to sovereignty.The public power to command implies a unilateral public competence toenact laws that bind the subjects; the validity of the law does not dependon the consent of those to whom it applies. This entails a transition from

jurisdiction that is mainly based on adjudication to one rmly groundedin legislation.43 The second marks the transition from rule by man torule by law, from the military or economic power of a person to the insti-tutional authority of an abstract sovereign. The continuity of the publicpower is thereby constituted, generating a type of legal certainty thattranscends the arbitrary power of the king as a person. This conforms theposition taken by Kantorowicz in hisThe Kings Two Bodies44 that explainsovereignty as an abstract institution that is capable of surviving the deathof whoever happens to full the role of the king. The fact that sovereignpower does not depend on the person of the king, nor on the contingent

40 Ibid at xxii.41 Bodin, supra note 3, bk 1, ch 10 (On the True Marks).

42 Simone Goyard-Fabre,Jean Bodin et le droit de la Rpublique(Paris: Presses Universitairesde France, 1989) [Goyard-Fabre].43 On the shift from adjudication to legislation as the core of jurisdiction, see Harold



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consent of his subjects is seen here as a protection against arbitrary ruleand as a particular type of legal certainty that is not available in the nego-

tiations that nourish feudal suzereignty. Finally, the third conditionmarks the transition from a system of interdependent lords and overlordsthat requires permanent military and economic struggle, to a centralizedhierarchical distribution of authority that guarantees the independenceof the sovereign from his subjects and towards his fellow sovereigns. Abso-lute power denes the independence of the sovereign, but for Bodin, itdid not imply that the sovereign can rule according to le bon plaisir duprince.He is still bound byles lois divines et naturelles; les lois fundamentalesdu royaume et le respect du droit de proprit.45 This entails that the sovereign

has absolute power but is still bound by laws; for Bodin, this tensionwithin his concept of sovereignty was not a problem. The king had to givean account of his actions to God, which was a much more powerful con-straint than the contingent opinion of his subjects.

It seems that the role of territory in jurisdiction emerged from thesimultaneous appearance of a particular technology and the birth of theabstract sovereign state, based on an effective territorial monopoly of vio-lence. As explained above, Connolly proposes thatterritory is sustainingland occupied and bounded by violence.46 To the extent that jurisdic-

tion is territorial, the making of jurisdiction would be a matter of occupa-tion: the taking of land is part of establishing sovereign jurisdiction.Occupation in this particular case must be understood as the process ofterrorizing both the inhabitants (internal sovereignty) and the rulers ofother lands (external sovereignty). Terrorizing then has the doublemeaning of ruling by means of the threat of terror and protecting those

within the territory against threats of terror by their fellows (criminallaw) or by the rulers of other lands (law of war). Terror refers to themonopolies of violence that prevail within mutually exclusive territories.

C OCCUPATION AND MODERN SOVEREIGNTY

In hisPolitical Theology, Carl Schmitt argues thatsovereign is he who de-cides on the exception.47 He nds that the precondition as well as thecontent of jurisdictional competence in such a case [of extreme emer-gency] must necessarily be unlimited.48 Schmitt refers to Bodins under-standing of sovereignty as indivisible, thus according to Schmitt nally settling the question of power in the state. This relates to Bodin s

45 Goyard-Fabre, supra note 42 at 1623.



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answer to the question of whether the sovereign is bound by natural ordivine laws in a case of emergency.49 Bodin nds that, in cases of urgent

necessity, the sovereign must take the law into his own hands instead ofbecoming dependent upon whatever other powers within the statethink. In the end, sovereignty resides in the authority to suspend validlaw. Such authority is deemed even more fundamental than (and as aprecondition for) the authority to command new laws. The decision onthe exception is, in fact, an occupatiothat reduces the territory to a resnulliusthat is takenby the sovereign on the basis of his factual domin-ion. Schmitt explains the emergence of a new political order at the endof the middle ages, created by the constitution of the territorial state:

First, it created clear internal jurisdictions by placing feudal, territorial, estate,

and church rights under the centralized legislation, administration, and judi-

ciary of a territorial ruler. Second it ended the European civil war of churches

and religious parties, and thereby neutralized creedal conicts within the state

through a centralized political unity . . . Third, on the basis of the internal politi-

cal unity the state achieved vis--vis other political unities, it constituted within

and of itself a closed area with xed borders, allowing a specic type of foreign

relations with other similarly organized territorial orders.50

This new territorial legal order derives from the initial a-legal occupa-tion that precedes the institution of legality. In his discussion ofnomos(Greek for law), Schmitt reminds the reader of its rst meaning, that heasserts to beto takeorto appropriate,whereas the second would betodivide or distribute: the division and distribution, i.e., the suum cuique,presuppose the appropriation of what is to be distributed, i.e. and occupa-tioorappropriatio primaeva.51 To give, to enact the law, the competence tomake jurisdiction must rst be occupied, conquered, and according toSchmitt even Kant admitted that acquisition of land precedes rule by

law.52 By implication, such occupation must be a-legal, since it precedes aswell as constitutes a legal order.53

IVExtraterritorial jurisdiction in the light of GrotiussMare Liberum

At one point during his discussions on the primacy ofoccupatio, Schmittarrives atthe distinction between the surfaces ofrm land and free sea,

49 Ibid at 8, referring to Bodin, supra note 3, bk 1, ch 10 (On the True Marks).50 Carl Schmitt, The Nomos of the Earth in the International Law of the Jus Publicum Euro-



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which was important for the distinction between land war and sea war.Each had its own concepts of enemy, war, and plunder.54 This refers to

the different jurisdiction that applies to the free sea as compared tothat ofoccupied territories.Schmitt explains that the legal regime thatrules the mare liberum has major consequences for the relationshipsbetween territorial states that meet outside their territories on the highseas; the abstract cartographic order that determines sovereignty in thespatial order ofrm land is absent at sea. Noting Julie Cohens depictionof cyberspace as/and space, it may be of interest to look more closelyinto the non-territorial jurisdiction of the high sea. Julie Cohen proposesthat [t]o understand cyberspaces spatiality, one must disentangle the

concept of experienced spatiality from abstract, conceptual models ofspace, and also from the related but distinct concepts of place andproperty.55 In this section, I will tease out the manner in which thehumanist legal scholar Grotius disentangled the spatiality of the highseas from the concepts of place and property. He said that the sea, as ares communis, is distinct from both private and public property. Basicallyhe claimed that the sea may be a res nullius, but not one thatdue to itsexperiential unruliness lends itself to any kind of occupation. Grotiusdepicted the high seas as a passage, instead of a place, and a common

good instead of a private or public property.In his Mare Liberum(1608) Grotius contested the monopolist claims

of Spain and Portugal on parts of the high seas,56 which they aimed toappropriate as part of their trade route to South and South-East Asia.Grotius, who was asked to defend free trade on the high seas in order tosafeguard the interests of the Dutch Republic, argued that the high seascannot be appropriated. While land was occupied, divided and distribu-ted, the sea remained open to all. Whereas lands turned into territory,the sea remained outside the grasp of territorial sovereignty. It was con-sidered as part of a different spatiality, not portioned into mutuallyexclusive jurisdictions but left to the rights and obligations of Grotiussnatural law, the same natural law that obligated people before they con-cluded the social contract that constituted their territorial sovereign.57

54 Schmitt,Nomos, supra note 50 at 184.55 Cohen, supra note 5 at 227.56 Hugo Grotius, The Freedom of the Sea, translated and revised by Ralph Van Deman Ma-

gof

n (New York: Carnegie Endowment for International Peace, Oxford UniversityPress, 1960) [rst published 1688] [Grotius], online: (2008) The Marsi and ClefrinFrelock Book Series


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Remaining outside the realm of sovereignty, his law of the sea must alsobe distinguished from his other radical invention: the laws of war that

constitute the rules for a ius ad bellum(the rules for determining whatmakes for a just cause) and the ius in bello(the rules for the conduct ofwarring states irrespective of whether their cause is just or not).

A MARE LIBERUMAS AN ECONOMIC THEOLOGY

In the introductory note to the English translation of Mare Liberum,James Brown Scott refers to the famous Latin tractate of Grotius asproclaiming, explaining, and in no small measure makingthe freedomof the seas.58 This highlights the constructive as well as performativenature of jurisdiction at sea. According to Johannes Thumfart, Grotiususes the text to put forward his normative ideals of global free trade, in-cluding those of equality, reciprocity and private responsibility,thus, forinstance, inuencing the father of the idea of the invisible hand of politi-cal economy, Adam Smith.59 Thumfart detects a theological undercur-rent in Grotiuss treatise that he shares with and took from the SpanishDominican, Francisco de Vitoria, who defended free trade as implicit inthe Christian mission. Thumfart suggests that both assume a historico-

teleological tendency inherent in global free trade, such that the pur-pose of free trade is to unite the world in peace.60 He nds that this es-chatological understanding of global free trade ts what Agamben callsan economic theology and, mutatis mutandis, Schmitts political theol-ogy.61 It entails that theological notions such as salvation be trans-formed so as to survive in the secular era, while still producingexpectations and legitimizations that derive from their discarded theo-logical roots. In the case of the freedom of the seas, this eschatologicalnotion of salvation by means of global free trade provided legitimacy for

the Dutch trading company, the Vereenigde Oost-Indische Compagnieto secure its trading expeditions by military means, which also includedpreemptive strikes.62We may notice that, in the struggle for a free Inter-net, various stakeholders come up with very similar arguments, based onthe idea that a free Internet will automatically bring salvation for

Encyclopedia of Philosophy .58 James Brown Scott, Introductory Note,in Grotius, supra note 56, v at v.59 Johannes Thumfart, On Grotiuss Mare Liberum and Vitorias De Indis, Following

http://plato.stanford.edu/archives/fall2011/entries/grotius/http://plato.stanford.edu/archives/fall2011/entries/grotius/http://plato.stanford.edu/archives/fall2011/entries/grotius/http://plato.stanford.edu/archives/fall2011/entries/grotius/


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oppressed people outside the West.63 We will return to this point later.For now, it seems interesting to trace Grotiuss argument for the free-

dom of the sea, since it legitimizes what he termed a bellum iustum priva-tum, paraphrasing what the VOC had called coophandel met force(tradesupported by the force of arms).64 If cyberspace, like the high seas, isstructured as a spatiality different from that of the territorial state, someof Grotiuss arguments may be relevant for the extraterritorial jurisdic-tion to enforce in cyberspace.

B MARE LIBERUMAS NATURAL LAW THEORY

Apart from making the freedom of the seas, Grotius was one of thefounding fathers of natural law theory, opening his tractate with a dedi-cation that posits a fundamental difference between things that are to beenjoyed in common with all men and things that belong distinctly andexclusively to one individual. This difference is based on the nature ofthings as created by God and inscribed in the minds of men and thisrules out the possibility that this could be a matter of convention or opin-ion. In the rst chapter, Grotius claims that

every nation is free to travel to every other nation, and to trade with it . . . So by the

decree of divine justice it was brought about that one people should supply theneeds of another, in order, as Pliny the Roman writer says, that in this way, what-

ever has been produced anywhere should seem to have been destined for all.65

From this, Grotius concludes that trading routes especially thoseover seas should be free for all to use. In the fth chapter, Grotius ar-gues that sovereign nations cannot gain property or sovereignty overparts of the high sea by means of occupation. He explains that the sea isoften framed as having the legal status of ares nullius, a res communis, or a

res publica. His point, however, is that the high seas fall within the scopeof natural law, and he claims that nature of itself knows no exclusiverights such as sovereignty or private property. The emergence of privateproperty originates in an act of occupation, mostly of things formerlyheld in common. On the one hand, this act of occupation was initiated

63 Compare Evgeny Morozov, The Net Delusion: The Dark Side of Internet Freedom (NewYork: Public Affairs, 2011); Jack Goldsmith & Tim Wu, Who Controls the Internet? Illu-sions of a Borderless World (New York: Oxford University Press, 2008) [Goldsmith &

Wu]; Milton Mueller, The New Cyber-Conservatism: Goldsmith/Wu and the Prema-ture Triumphalism of the Territorial Nation-State A Review of Goldsmith and WusWho Controls the Internet? Illusions of a Borderless World(2006)Internet Governance Project



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by individuals and resulted in private property; on the other hand, statesbegan to occupy certain territories and that resulted in public property.

He concludes that all property has arisen from occupation and that non-rivalrous goods cannot and should not be occupied, since nature hasclearly meant to exclude exclusive rights to such goods.66 He refers tosun, air, and waves as incapable of becoming private property and callsthem public gifts. This means that the seas are commonto all men, rstbecause they cannot be occupied and second because they have beenmarked out for common use. He continues to argue that, whatever can-not become individual private property also cannot become the publicproperty of a state, since this would exclude parts of what he calls the

human race from enjoying the common use of these goods. It seemsthat Grotiuss hidden assumption is that the experiential spatiality ofland though originally used as a common good lends itself to occupa-tion, division, and distribution as private or public property, whereas theexperiential spatiality of the outer sea does not lend itself to such com-partmentalization. This claim was countered in 1652 by John Seldenin his Mare Clausum,67 who advocated the British claims to jurisdictionover the high seas surrounding the isles. Lets note that Grotius views thespatiality of the outer sea as a passage, a route to conduct trade and to

travel between different nations. He argues that even over land whichhad been converted into private property either by states or individuals,unarmed and innocent passage is not justly to be denied to persons ofany country, exactly as the right to drink from a river is not to be de-nied.68 Grotius thus claims that even territorialized lands retain the spa-tiality of a passage. The difference with the high seas seems to be that itsspatiality is exhausted by the metaphor of the passage, as, according toGrotius, they are not conducive to occupation and distribution. Hisfreedom of the sea is grounded in the sea as an in-between, a connec-tion, a passage from one nation to another, the precondition for theglobal free trade that will achieve global peace and well-being accordingto the economic theology of the laws of nature. The fact that Grotiuss

vision won out over Seldens attempted refutation was not obvious; it is a

66 Ibid at 27. Grotius often minglesisandought,one of analytical philosophys mortalsins. If the sea cannot be appropriated, it makes no sense to discuss whether it shouldbe so. If it should not be appropriated, we assume that it can be so. There is logic in

this, but perhaps reality is more fuzzy and more complex. In some ways, you probablycould not occupy the seas at that point in time, while in other ways you could (theSpanish and the Portuguese did, in their way). In that sense can and should are



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prime example of the making of a special type of jurisdiction thatseems to defy the logic of occupation. Attempts to achieve some form of

command over the commons of the high seas are not uncommon69

andthe distributed jurisdiction over the high seas that was consolidated inthe 1982 United Nations Convention on the Law of the Sea (UNCLOS)cannot be taken for granted.70

What does this imply for extraterritorial jurisdiction to enforce? For astart, lets acknowledge that Grotius admits of no monopoly of violenceon the high seas; the freedom of the seas signies the absence of sover-eign claims that exclude other nations. This implies that natural law ap-plies; there is no social contract that stipulates the establishment of a

human-made jurisdiction. For Grotius, natural law rules in three types ofsituations: rst, it rules the interactions of people that have not estab-lished a state on the basis of a social contract; second, it rules the interac-tions between states in times of war and peace; third, it rules theinteractions of both state and private actors on the high seas. Grotius snatural law starts from the notion of individual rights that derive fromthe need for self-preservation and the need for society. Before the socialcontract is concluded, these individual rights pertain to individual per-sons; after the social contract, these rights are also attributed to sover-

eign states, while the subjects of the state will lose some of their rightsand rights will be attributed to them on the basis of sovereign legislation.Mare Liberumargues that, at sea, both sovereign states and private partiesunder the ag of a sovereign state have the natural right to defend them-selves and the duty to respect the communal character of the sea as aroute for free trade. Pirates can be caught and punished by all partiessince they beset and infest our trade routes;71 nations can agree tobring pirates under a specic jurisdiction when caught in this or thatpart of the sea, but such agreements have no binding force on those not

69 Craig H Allen, Command of the Commons Boasts: An Invitation to Lawfare?in Mi-chael D Carsten, ed,Global Legal Challenges: Command of the Commons, Strategic Commu-nications and Natural Disasters (Newport, RI: Naval War College Press, 2007) 21[Allen].

70 SeeConvention on the Law of the Sea, 10 December 1982, 1833 UNTS 3, pt VII, arts 86120 (entered into force 16 November 1994) [UNCLOS], on the legal regime of theHigh Seas. For an interesting attempt to compose a clone of the convention regardingthe legal regime of cyberspace, see Raymond K Joe, Cyberspace and the Seas: Lessons to be

Learned (Masters Thesis, Massachusetts Institute of Technology, 1998), online:.

http://dspace.mit.edu/bitstream/handle/1721.1/47725/42662346.pdf?sequence=1http://dspace.mit.edu/bitstream/handle/1721.1/47725/42662346.pdf?sequence=1http://dspace.mit.edu/bitstream/handle/1721.1/47725/42662346.pdf?sequence=1http://dspace.mit.edu/bitstream/handle/1721.1/47725/42662346.pdf?sequence=1


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party to the agreement.72 If a party attempts to monopolize a trade routeby prohibiting passage, natural law allows others to take up arms:

If many writers, Augustine himself among them, believed it was right to take uparms because innocent passage was refused across foreign territory, how much

more justly will arms be taken up against those from whom the demand is made

of the common and innocent use of the sea, which by the law of nature is com-

mon to all?73

In fact, he suggests that whoever hinders free trade by obstructing theuse of roads or the export of merchandise must be prevented fromdoing so via factieven without waiting for any public authority.74 This

natural right against whatever hinders free trade constitutes a cause for ajust war, even if it is a private party that retaliates. In that case, Grotiusspeaks of abellum iustum privatum a private just war.

In what sense could cyberspace be equivalent to Grotiuss high seas? Itmay be interesting to compare the relationship between territorial sover-eignty and the freedom of the sea with the relationship between territo-rial jurisdiction and the often claimed unregulability of the Internet.Taking it from there, we can investigate how the notion of extraterritori-ality depends on a particular spatial mapping that may not apply in the

case of either Grotiuss sea or our own cyberspace.

VCyberspaceliberum?

Julie Cohen suggested that [t]o understand cyberspaces spatiality, onemust disentangle the concept of experienced spatiality from abstract,conceptual models ofspace,and also from the related but distinct con-cepts of place and property.75 Grotius, who lived on the verge of a new

area, in which abstract spatiality was the new kid on the block in the arts,politics, and the law, reinvented the abstractions of natural law theoryand developed a law of nations that matched an abstract spatial under-standing of the surface of the earth.76 The exception he argued for

72 Grotius, supra note 56 at 35. UNCLOS, ibid, art 92(1), stipulates in that ships shallsail under the ag of one State onlyand, subject to minor exceptions,shall be subjectto its exclusive jurisdiction on the high seas. Ibid, art 97(3) stipulates that the ag

state shall have exclusive penal jurisdiction to enforce.73 Grotius, ibid at 74. Note that the rhetorical strategy of quoting the ancients was acanonical method to convince ones audience in Grotiuss time.



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jurisdiction at sea partly rests on the experiential unregulability of thehigh seas at that point in time. For another part, the natural law that he

proposes depends on an abstract conception of individual actors withindividual rights; Grotius was indeed one of the rst authors to developthe abstract notion of subjective rights that do not depend on privilegeand exist as legal rights beyond moral entitlement.77

A EXPERIENTIAL UNREGULABILITY OF CYBERSPACE?

In the rst decade of its existence, cyberspace seems to have evoked anexperiential unregulability similar to that of Grotiuss high seas. Eventhe eschatological undertones detected in Grotiuss expectations of

world peace based on free trade returned with the birth of cyberspace.In the preface to their Who Controls the Internet, Goldsmith and Wu citethe following passage:

The new technologies will bringevery individual . . . into immediate and effort-

less communication with every other, practically obliterate political geogra-

phy, and make free trade universal. Thanks to technological advance, there

[are] no longer any foreigners,and we can look forward to the gradual adop-

tion of a common language.78

These words were actually inspired by the telegraph, one centurybefore the emergence of cyberspace. Yet, they resonate with numerous

writings on the challenges posed to the rule of nation states in the lastdecade of the twentieth century, reiterating the eschatological expecta-tions unmasked by Schmitts notion of a political theology and Agam-bens economic theology.79 Some would say that eschatologicalexpectations must be hardwired into our cognitive make-up. Thoughthe idea of a political theology referred to the notion of territorial sover-

eignty as a road to salvation for a divided humanity, cyber-utopianismseeks salvation in an undivided global cyberspace under the banner ofInternet freedom. Goldsmith and Wu summarize the dreams of cyber-utopianism as those of self-governing cyber-communities that wouldescape geography forever.80 But, in their history of the (partial)

moral philosophy that determined the validity of positive law. With Grotius, naturallaw theory begins the process of disentanglement from theology.

77 William A Edmundson,An Introduction to Rights(Cambridge, UK: Cambridge Univer-

sity Press, 2004) at 1722 [Edmundson].78 Goldsmith & Wu, supra note 63 at vii, quoting Julian Hawthorne,June 1993,The Cos-mopolitan(February 1893) 450 at 4567, as discussed and quoted by Carolyn Marvin,



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territorialization of cyberspace, they argue that, even if geography nolonger rules, national states still manage to pulls the strings or, rather,

the wires. It has required hard work by legislators and especially courtsto come to terms with the unprecedented extraterritorial effects ofaction in cyberspace. Goldsmith and Wu describe the Yahoo case,81 in

which a French court decided that the US First Amendment does nothave force of law in a French jurisdiction. The case concerned the saleof Nazi paraphernalia on an Internet auction site that could be accessedin France, where the sale of Nazi relics is a criminal offence. Yahooclaimed that it could only comply with French law if it blocked access tothe site for all its users which would practically enforce French law in

the United States. Once it became clear that it was technically possible todiscriminate between users based on their geo-location, the courtordered the US-based provider Yahoo to block access to certain Websites for French users. Reidenberg has described this decision under theheading of the international democratization of the Internet, arguingthat it demonstrates respect for local, that is national, democratic consti-tuencies.82 This may be a relevant argument for territorial demarcationsin the case of democracies, but as Goldsmith and Wu discuss at somelength, such demarcations are also used by non-democratic states like

China to prevent their subjects from gaining unrestricted access to theglobal public sphere. Milton Mueller goes even further, raising the dif-cult question of the relationship between human rights and democracy:

They [Goldsmith and Wu] criticize the global extension of the First Amend-

ment and its implied universalism. But whynotextend it globally? If you believe

that individuals have rights that are over and above those of states, how does the

fact that a (possibly temporary) majority happened to seize political control in

one territory for a few years alter the basis of the claim? And if you believe that it

is illegitimate to apply the First Amendment standard globally, why is it legiti-mate to apply Goldsmith and Wus amoral utilitarian standard? Some standard

has to be applied.83

Mueller agrees that the cyber-utopianism of early adopters of the Inter-net has turned out to be not only nave but dangerous because it turns ablind eye to the sophisticated methods used by nation states to regain(remote) control over whatever affects their jurisdiction. However, he

81 Trib gr inst Paris, Ordonnance de rfr du 20 novembre 2000, online: Legalisnet. Un-

http://www.legalis.net/spip.php?page=jurisprudence-decision&id_article=217http://www.legalis.net/spip.php?page=jurisprudence-decision&id_article=217


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warns against what he calls the new cyber-conservatism that assumesthat cyberspace does not pose critical threats to the system of nation

states. Apart from this contestable assumption, such cyber-conservatismoften involves a normative position, claiming that only the combinedinternal and external sovereignty of nation states can provide adequatesolutions for the governance of cyberspace. Goldsmith and Wu justify thisnormative position by means of mainstream utilitarian arguments,84 eventhough they recognize the fact that oppressive governments can use theInternet to achieve an unparalleled granular control over their subjects.Mueller warns, however, that cyberspace does pose unique challengesand at the same time generates novel opportunities to counter some of

the drawbacks of the rule of mutually exclusive territorial monopolies offorce.85 He nds that intellectual property, cyber-security, content regula-tion, and the control of critical Internet resources (domain names and IPaddresses that are the condition of possibility of any cyberspace) requiretransnational governance at a level and in a manner that cannot be pro-

vided by any nation state in itself, for itself.

B REGAINING CONTROL: INDIRECT EXTRATERRITORIAL EFFECT?

In 2001, before the United States ratied the Cybercrime Convention(in 2007), Jack Goldsmith wrote a paper on the legitimacy of remotecross-border searches.86 He describes one of the rst known cases ofremote cross-border searches and seizures in the context of cyberspace.

After tracing the source of malicious hackings into computing systemsof banks, Internet service providers (ISPs), and other US rms todata servers in Russia, the FBI tried to get Russian assistance in monitor-ing and redressing these criminal activities. When the Russian authori-ties turned out to have other priorities, the FBI decided to act

unilaterally.87 They obtained a search warrant in the United States, g-ured out the hackers user names and passwords via a keystroke snif-fer, and thus gained access to the servers in Russia, downloading theinformation necessary to charge them and to prevent further attacks.Goldsmith recalls that the normalway to proceed in the case of extra-territorial jurisdiction to enforce is judicial or police cooperation, buthe explains,

84 E.g. Goldsmith & Wu, supra note 63 at 153.85 Milton L Mueller, Networks and States: The Global Politics of Internet Governance(Cam-



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The problem is that such cooperation is often difcult. Sometimes the source-

country government lacks legal authority to seize and freeze computer informa-

tion within its borders. Sometimes it lacks the technological capacity. Sometimesthe enforcement machinery in the source country will simply take too long,

because evidence of the crime can quickly be destroyed or anonymized. And

sometimes, as in the opening example, the source country government simply

fails to cooperate.88

He notes that for these and other reasons, ofcials in the targetcountry might take matters into their own hands.89 Goldsmith then re-fers to international law, observing that many authors would nd this a

violation of the territorial sovereignty of the source country.90 His

essay, however, is meant to argue that remote searches are, indeed, re-stricted by international principles of enforcement jurisdiction but thatsuch restrictions cannot be deduced from norms of territorialism. Headds that, though he does not see jurisdictional grounds to prohibitunilateral extraterritorial searches, there may be other grounds torestrict or prohibit these searches, notably potential violations of pri-

vacy or free speech rights. The main reason why Goldsmith contendsthat, under certain conditions, states are free to engage in remotesearches is necessity. He observes that the Cybercrime Convention pro-hibits unilateral exterritorial enforcement, but considers that the Con-

vention will have little inuence on crimes committed from safe-havennations that do not ratify it.91 Necessity will require ofcials to take thelaw in their own hands, andfor Goldsmiththis entails another neces-sity: the need to reinterpret the prohibition on extraterritorial jurisdic-tion. In short, Goldsmith proposes that remote searches do not violatethis prohibition because the ofcials doing the search do not leave theterritory of the United States. The argumentwhich returns inWho Con-

trols the Internetis that states will

nd ways to achieveindirectextraterrito-rial effect; they will use local infrastructure, local ISPs, and local divisionsof foreign companies to target the source of the harm they wish toredress. Just as cyberspace destroys the unity of time, place, and action oftheactus reusof a cyber criminal, it does the same for the enforcement

88 Ibid at 104.

89 Ibid at 104.90 Ibid. Goldsmith refers to theRestatement (Third) of the Foreign Relations Law of the UnitedStates 432, comment b (1987). Note that he does not refer to international law but to



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action of national authorities; the scope of the extraterritorial effect ofterritorial action is transformed by cyberspace. Goldsmith actually links

this effect to cross-border surveillance on the high seas and internationalair space and concludes that [n]orms of territorial sovereignty havenever precluded such offshore espionage.92 Goldsmiths argument oscil-lates between pragmatic arguments entailing that, because judicial coop-eration does not always work, unilateral action is needed and a curiousunderstanding of international law entailing that states can always act intheir own best interest. To the extent that this violates international law,he asserts, the law will simply have to be changed: There is little doubtthat if such searches prove necessary to redress cross-border internet at-

tacks, international law will adapt to permit them in some circum-stances.93

There is no doubt that, for Goldsmith, the sovereign is he who decideson the exception. Norms are nice, but in cases of necessity, we are betteroff with decisions.94 He acknowledges potential abusefor instance, if of-cials resort to cross-border searchers even if alternative means of investi-gation are available and warns against the threat of reciprocity andretaliation so that, for example, Russia might decide to engage in cross-border enforcement in cyberspace on the territory of the United States.

But ultimately, the claim stands that unilateral actions are inevitable andrequire an adjustment of international law. Interestingly, after his paper

was published, the United States ratied the Cybercrime Convention,which forbids these searches without express permission of the sourcecountry.95 What does this mean for the competence of US ofcials toengage in unilateral cross-border searches? Are they bound by theiragreement to the Convention, or is there space for an a-legal decision inthe case of necessity? In their book on control over the Internet, Gold-smith and Wu argue that territorial sovereignty will hold in cyberspace,

whereas Goldsmiths earlier position suggests that territorial sovereigntywill be redened to allow extraterritorial enforcement jurisdiction in cy-berspace. It seems that Schmittian decisionism will rule cyberspace whenthings get nasty, leaving international law and respect for the internal sov-ereignty of other states for times of relative peace.

92 Ibid at 114. It is not clear what is the relevance of this observation, since espionage isnot the same as extraterritorial enforcement of the criminal law.93 Ibid at 116.



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VI Conclusions: Novel spatialitiescyberspace as passage and common good?

Let us now return to GrotiussMare Liberum. I briey recall the dimensionsof territorial jurisdiction distinguished above: territorial demarcation thatoverrules personal status and the creation of abstract boundaries thatdene an empty space, capableI might add in a simple way, of produ-cing an inside and an outside and, in turn, a gapless map of contiguous

jurisdictional territories.96 The high seas escaped this totalitarian schemedue to their value as a common good, their status as a passage, and the vigi-lance of different players who have resisted occupation. Cyberspace can beterritorialized, but only by redening territory in a way that dees the origi-

nal connection of the notion of territory to the land, to the earth. As men-tioned here, this connection constructs territorial jurisdiction as exclusiveand gapless; there is no outside that is not an inside and a subject or anobject cannot be inside two different territories. The novel connection toterritory, however, would have to be inclusive and overlapping; as soon asthere is an inside, there are numerous ways to extend the inside forinstance, by means of what Goldsmith calls indirect extraterritorial effect.

This marks the difference between cyberspace and Grotiuss high seas:the high seas unlike cyberspaces were not everywhere or anywhere.97

This difference implies that the metaphor ofMare Liberumhas its limitsbecause unlike cyberspace it depends on the territoriality of the landit surrounds. This is precisely why cyberspaces require novel negotiationsbetween jurisdiction and spatiality. The boundaries of the high seas weredetermined by those of the land; there was no overlap. The boundariesof territory in the era of cyberspace are, however, liquid.98 Cyberspacedoes not stop where ordinary space begins. This means that territoriali-zation of cyberspaces easily generates cross-border communication, com-merce, and crime, situating the same action seamlessly in different

territories (both online and ofine). On the side of cybersecurity, thiswill trigger universal extraterritorial jurisdiction to enforce. As we haveseen above, as long as the ofcial conducting a remote extraterritorialsearch is physically located in the territory of the investigating state,some will dene her action as an intraterritorial search with indirectextraterritorial effects. It may be the case that the legal requirement that

96 See text accompanying notes 312.

97 Thanks to Markus Dubber for pointing this out during the workshop in Toronto, June2012.98 Cf. Julie JCH Ryan, Daniel Ryan, and Eneken Tikk, Cybersecurity Regulation: Using



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the other state must agree to such a search is contingent upon an earlierspatiality, on articial demarcations that have run out of steam.

A rede

nition of the scope of territorial jurisdiction that justi

es indi-rect extraterritorial effects will, nevertheless, run into problems. It buildson an a-legal occupatiobecause it claims and seizes access to computingsystems located in the realm of another state that may decide to exerciseits monopoly on violence. Retaliation and reciprocity may turn cyber-space into a platform for cyber war; to the extent that our critical infra-structure is increasingly rooted in cyberspace, such a-legality is notsomething to look forward to. The recent history of the malware pro-gramOlympic Gamesis a primary example of such a-legal occupation.

The program, developed by the National Security Agency of the UnitedStates and Israels secret services with the aim to disturb the nuclearplant at Natanz (Iran), sets an example that will be and undoubtedlyhas beenfollowed.99

We thus have to face the question of whether cyberspace liberumgrounds a-legaloccupatioor requires grounding in a novel version of nat-ural law that attributes subjective natural rights based on a distributedcontrol over cyberspace infrastructure.100 Part of Grotiuss scheme may

work; namely, where we view cyberspacein analogy to the high seas

as a passage that affords international trade, communication at a dis-tance, and the proliferation of information and of the techniques totransform information into knowledge. This would entail that we see cy-berspace as a global commons. But even if we manage to escape thetemptations of an economic theology that takes the benets of cyber-space as a global commons for granted, we still need to nd ways toensure that cyberspace as a passage, a conduit is instituted and main-tained as a res communis that cannot be appropriated, may not comeunder exclusive sovereign control, and requires a vigilant internationalcommunity to safeguard the distributed control that is needed to pre-

vent violent, exclusionary monopolies.101

99 See supra note 13. Note that the example does not refer to criminal jurisdiction toenforce but to something more like cyber war. Obviously, the distinction may not holdin cyberspace, unless we nd a way to construct an effective legal demarcation that re-invents the distinction between internal sovereignty (criminal law) and external sover-eignty (war) for the era of cyberspace.

100 Though the idea of natural rights seems to defy the idea of attribution, this is pre-cisely the point of natural law: it attributes rights it claims to be inherent in the natureof human beings. This rhetorical strategy is based on the performative nature of the



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This seems to be the challenging alternative to accepting that thepower will be with those who take control, thus imposing their sover-

eignty in cyberspace to the extent that others let them.102

However, toface this challenge, we still need to gure out what it means to take careof a common good that cannot be separated from the territorial land-scape it pervades. Cyberspace is everyware.103 If we want to save our-selves from an a-legal cyberspace, we need to build a new heterotopian spatiality, taking into account the novel mappings that cyberspace af-fords. We must remember that sovereign jurisdiction entails unilateralenforcement of the criminal law but, so far, is also the precondition ofthe unilateral enforcement of human rights, such as a fair trial, privacy,

and non-discrimination. The challenge will be to sustain a measure ofsafety, freedom, and respect for human rights in cyberspace, based on alegality that cannot howeverbe grounded in the monopolistic spatial-ity of territorial sovereignty.

Internet Open,The New York Times(24 May 2012), online: NYTimes . Also Mueller, Net-

http://www.ny-times.com/2012/05/25/opinion/keep-the-internet-open.htmlhttp://www.ny-times.com/2012/05/25/opinion/keep-the-internet-open.htmlhttp://www.ny-times.com/2012/05/25/opinion/keep-the-internet-open.htmlhttp://www.ny-times.com/2012/05/25/opinion/keep-the-internet-open.html


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