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Abstract

The purpose of this article is to suggest a different perspective on the issue of extraterritorial regulation in cyberspace. The article begins by outlining the Johnson-Post-Goldsmith debate which addressed the significance and legitimacy of physical, geographically-defined borders and territorial sovereignty in the regulation of cyberspace. The debate focused primarily on two areas of disagreement: First, whether and to what extent the architecture of the Internet is borderless or boundary-destroying, so as to be resistant to regulatory regimes grounded in territorial authority; and second, whether and to what extent a nation may legitimately exercise its regulatory power extraterritorially, particularly in the context of online activity. This article acknowledges these debates and their importance, but suggests that by framing the argument as they did, Johnson and Post, were pressed to untenable assertions that fatally undermined their position. The author than goes on to reframe the debate in Section II, moving from a focus on the validity of sovereign power and its limits, to the relationship between individual autonomy and the purposes, values and virtues of law. The central question of Section II is whether the governance of cyberspace by traditional sovereign legal systems conforms to the rule of law. Answering this question in the negative, Section III asks simply, what then? Is conformity to the rule of law a prerequisite of authority or simply one value among many, to be weighed against other values served by law and promoted, but without such exaggerated importance that it devalues other laudable social goals?

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