Why Should Cyberspace be Treated Differently from Physical Space?

The term “cyberspace” was coined by a science fiction writer[1] to describe the boundless electronic system of interlinked networks of computers that provide access to information and interactive communication.[2] Today, cyberspace and the internet refers basically to the same thing.[3]  It is a separate kingdom in which the laws of physical space do not necessarily apply.[4] This is because cyberspace is different from physical space.

 

For one, no one is “in” cyberspace.[5] The internet is merely a computer protocol, a piece of code that allows users to transmit data between their computers using existing networks.[6] Moreover, the internet is unique because it allows communication across city, state and national borders.[7] It also makes gathering personal information more efficient.[8] Lastly, the internet cuts across territorial borders, creating a new realm of human activity.[9]

 

  1. World-Wide Audience

 

One reason why we should differentiate cyberspace and real space is that speech online has a far greater impact than speech through ordinary media.[10] According to the United States Supreme Court, the Internet enables an ordinary citizen to become “a pamphleteer . . . a town crier with a voice that resonates farther than it could from any soapbox.”[11] It’s online nature reaches far more people than the biggest satellite TV station or best-read international newspaper.[12] It also allows individuals to influence and manipulate the opinions of a larger audience.[13]

 

Despite the many advantages of the internet, it is also a powerful vehicle for hate speech.[14] It allows users to speak anonymously and remain psychologically distant from their audience.[15] It further reaches millions of individuals through an inexpensive and unencumbered social network.[16] This has enabled previously fragmented groups to connect.[17] It has enabled hatemongers to propagate their rhetoric and organize through websites.[18] Indeed, it affords people unprecedented new ways to communicate with others.

 

  1. Wide-Ranging Surveillance

 

Online spaces also makes the processing and transfer of data much easier.[19] Personal information in cyberspace—as opposed to those observed in physical space—is detailed, computer-processed, indexed to the individual, and permanent.[20] Moreover, the data collected in these various domains can be aggregated to produce telling profiles of who we are. One need only sift through our cyber-activity.[21]

 

Imagine the following two visits to a mall, one in real space, the other online. In real space, you drive to a mall and browse through several shops. You walk into a bookstore and flip through a few magazines. Along the way, you stop at a clothing store and buy a silk scarf using a credit card. In this narrative, numerous persons interact with you and collect information along the way.[22]

 

For instance, while walking through the mall, fellow shoppers visually collect information about you. But such information is very general, not in a format that can be processed by a computer nor indexed to your name, it is also impermanent, residing as it does merely in short-term human memory. You remain a barely noticed stranger. One important exception exists however: the scarf purchase generates data which are detailed, computer-processable, indexed by name, and potentially permanent.[23]

 

Meanwhile, in online transactions, the exception becomes the norm. Every interaction in cyberspace is akin to a credit card purchase. In cyberspace, you are assigned a bar code as soon as you venture inside the cyber-mall’s domain, the mall begins to track you through invisible scanners focused on your bar code. It automatically records which stores you visit, which windows you browse, in which order, and for how long. The specific stores collect even more detailed data when you enter their domain. For example, the cyber-bookstore notes which magazines you skimmed through, recording which pages you have seen and for how long, and notes the pattern, if any, of your browsing. Of course, whenever any item is actually purchased, the store takes careful notes of what you bought—in this case, a silk scarf.[24]

 

  • Lack of Territorial Borders

 

Another difference between cyberspace and physical space is that, unlike in physical space, there are no territorially-based boundaries in cyberspace. Events online occur everywhere and nowhere in particular. An internet user, through the use of an Internet Service Provider, is able to access websites around the world. Messages can be transmitted from one physical location to any other location without any barriers that might otherwise keep certain geographically remote places and people separate from one another. Transactions are completed between people who do not know, and in many cases cannot know, each other’s physical location. Because of this, efforts to determine “where” the events in question occur are futile.[25]

 

The determination of “where” events occur online is crucial because territorial borders, lines separating physical spaces, delineate areas within which different sets of legal rules apply.[26] Take, for instance, an Internet Service Provider based in America.[27] Because of the internet, it is possible for it to simultaneously abide by American laws and at the same time violate the law of other countries, such as France, Germany, or Austria.[28]

 

Another example is a web page placed online.[29] The page may be visible around the world and not just in the country where the server is physically located.[30] Traditional theories would suggest that each nation would be entitled to apply its own substantive law to the web page.[31] Moreover, since the creator of the page knows that its website would be available world-wide, this means that he is amenable to be sued anywhere on the planet.[32] Meanwhile, a newspaper published in one country would typically be subjected only to the laws of that country.

 

In sum, we should treat physical spaces differently from online spaces. Unlike in physical spaces, online space enables anyone to speak and be heard around the world with low start-up costs.[33] Also, the internet is transnational in nature[34] and personal information is more detailed and permanent[35] in the online world.

[1] Wonderpolis, Where is Cyberspace?, available at https://www.wonderopolis.org/wonder/where-is-cyberspace (May 1, 2018).

[2] Adria Allen, Internet Jurisdiction Today, 22 Nw. J. Int’l L. & Bus. 69 (2001-2002).

[3] Supra note 1.

[4] Julie E. Cohen, Cyberspace As/And Space, 107 Colum. L. Rev. 210-256 (2007).

[5] Mark A. Lemley, Place and Cyberspace, 91 Cal. L. Rev. 521-542 (2003).

[6] Id.

[7] Supra note 2.

[8] Daniel J. Solove, Digital Person: Technology and Privacy in the Information Age, New York University Press (2004).

[9] David R. Johnson and David G. Post, Law and Borders—The Rise of Law in Cyberspace, available at https://yalelawtechdotorg.files.wordpress.com/2011/08/riseofcyberlaw.pdf (last visited April 16, 2018).

[10] Patrick Barkham, Free Speech on the Internet, available at https://www.theguardian.com/technology/1999/feb/05/freespeech.internet (last visited April 14, 2018).

[11] in its Reno v. ACLU 521 U.S. 844 (1997); Spinello, Cyberethics: Morality and Law in Cyberspace, 5th edition Jones &Bartlett Learning available at http://samples.jbpub.com/9781449688417/88417_CH03_063_102.pdf

[12] Supra note 10.

[13] Lion Gu, Vladimir Kropotov, and Fyodor Yarochkin, The Fake News Machine, available at https://documents.trendmicro.com/assets/white_papers/wp-fake-news-machine-how-propagandists-abuse-the-internet.pdf (last visited April 8, 2018).

[14] LaShel Shaw, Hate Speech in Cyberspace: Bitterness Without Boundaries, available at https://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=1049&context=ndjlepp (last visited April 27, 2018).

[15] Id.

[16] James Banks, Regulating Hate Speech Online, available at http://shura.shu.ac.uk/6901/1/Banks_regulating_hate_speech.pdf (last visited April 30, 2018)

[17] Id.

[18] Id.

[19] Daniel J. Solove, Digital Person: Technology and Privacy in the Information Age, New York University Press (2004).

[20] Jerry Kang, Information Privacy in Cyberspace Transactions, available at https://www.ntia.doc.gov/legacy/ntiahome/privacy/files/CPRIVACY.PDF (last visited April 14, 2018).

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Supra note 9.

[26] Id.

[27] Supra note 2.

[28] Id.

[29] Id.

[30] Id.

[31] Id.

[32] Supra note 5.

[33] Supra note 10.

[34] Supra note 2.

[35] Supra note 20.

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