The disfavored status within international law of unilateral state-based regulations that target extraterritorial actors arises from the inherent challenges such actions represent to state sovereignty. In the context of the Internet, the complexity of choice-of-law analysis is heightened: regulations imposed by one state have the potential to effectively block communications to citizens of all states and undermine the conflicting regulatory aims of neighboring states. Early legal commentators built upon this cascading chilling effect of state-based regulation to proclaim both the futility and illegitimacy of state-based action in the online environment. Subsequent scholars have demonstrated the commensurability of state-based online regulation and the existing framework of international jurisdiction and choice-of-law analysis. However, having solved the jurisdictional puzzle and established the legitimacy of extraterritorial regulatory responses to local harm that originates abroad, these commentators have either left untouched or downplayed the impact of unilateral regulations in a networked environment. According to their assessments, the "spillover" impact of unilateral cyberspace regulation will not differ significantly from the impact of competing claims to regulate a single activity in real space. In apparent support for this position, recent technological developments that promise to geographically inscribe borders onto the Internet have been proclaimed as the harbinger of full-fledged state-based regulation and the end of the theoretical debate. This Article challenges the now-conventional assertion that in an era of bordering technologies the impact of unilateral regulatory moves in the online world can be effectively cabined. The Article utilizes a series of extraterritorial disputes to assess the increasing willingness of courts and states to regulate online activities and content across borders. In particular, it builds on the decision by a French court in the case of LICRA v. Yahoo!, which sought to "solve" the problem of offensive hate speech by mandating the use of filtering technologies that would block the transmission of content into the forum state. Following Yahoo!, a recent spate of extraterritorial disputes adjudicated by foreign courts over expressive regulation have adapted the Yahoo! template of effects-based jurisdiction as a means of maintaining national cultural and informational integrity. These cases both usher in and help create a new reality; responding to the commercial availability of geo-location technologies, they call for the implementation of filtering tools for the compliance of national content regulation. First, the Article reads Yahoo! and its progeny as the embodiment of an emergent European regulatory methodology, emphasizing human rights and regionalism. Second, it situates this methodology as a response to the perceived indirect unilateralism represented by the technical and informational hegemony of the United States from the early history of cyberspace through the 1990s. Through unilateral gestures, European states are rightfully staking a claim for the global medium to reflect heterogeneous cultural and technical values. The Article then adapts a dynamic model of regulatory impact to elicit a reconsideration of the optimism accorded the future status of unilateral regulations. Such a model highlights the recursive nature of regulatory impact in a digitally networked globe--states can enter at either the level of law or technology to impact the system and establish rules for all online actors. The online regulatory framework represents a uniquely playable system, whereby states are just as likely to find their own regulatory goals stifled by the process of unilateral regulation as they are likely to see them fulfilled. Hence, it is in the interest not only of the international system, but also of individual states themselves, to adapt regulatory strategies of cooperation, such as international harmonization and national self-enforcement. Ultimately, an interconnected network is not an American interest, but a global interest; a geo-politically divided Internet would facilitate national governance, but at the cost of the World Wide Web.
Regulating Speech Across Borders: Technology vs. Values,
Mich. Telecomm. & Tech. L. Rev.
Available at: https://repository.law.umich.edu/mttlr/vol9/iss2/4