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Universidade Autónoma de Lisboa

ISSN: 1647-7251

Vol. 6, n.º 1 (May-October 2015), pp. 86-99

CYBERSPACE REGULATION: CESURISTS AND TRADITIONALISTS

Lino Santos

lino.santos@cncs.gov.pt

Holder of a Master Degree in Law and Security from the Faculty of Law of Universidade Nova de

Lisboa. Holder of a Bachelor Degree in Systems and Computer Engineering from the University of

Minho. Operations Coordinator at the National Cybersecurity Center (CNCS, Portugal)

Abstract

In the amazing Code and Other Laws of Cyberspace, Professor L. Lessig writes "that

something fundamental has changed" with cyberspace with regard to the state's ability to

enforce the law.

On the one hand, the structure and characteristics of cyberspace pose some difficulties

related to jurisdiction and the choice of applicable law. On the other, it raises questions

about the very concept of sovereignty as we know it.

This paper examines the arguments of those who advocate a regulation of cyberspace on

the edges of state sovereignty or within a new concept of sovereignty and capacity to

enforce the law, and the arguments of those who reject this exceptional treatment of

cyberspace.

Keywords:

Cyberspace; Regulation; Self-regulation; Sovereignty; Utopia

How to cite this article

Santos, Lino (2015). "Cyberspace regulation: cesurist and traditionalists". JANUS.NET e-

journal of International Relations, Vol. 6, N.º 1, May-October 2015. Consulted [online] on

date of last visit, observare.ual.pt/janus.net/en_vol6_n1_art6

Article received on March, 31 2015 and accepted for publication on April, 30 2015

JANUS.NET, e-journal of International Relations

ISSN: 1647-7251

Vol. 6, n.º 1 (May-October 2015), pp. 86-99

Cyberspace regulation: cesurists and traditionalists

Lino Santos

CYBERSPACE REGULATION: CESURISTS AND TRADITIONALISTS

Lino Santos

Introduction

There is no doubt that cyberspace has brought about profound changes in the way

citizens, organizations and states relate to each other.

The capillarity of Internet, along with its large geographical coverage in terms of access

and the advent of the personal computer, gave rise to the globalisation of information

and knowledge, creating new spaces for interactivity, sharing and storage of market

products, among which we highlight the leisure and culture immersive virtual

environments (virtual worlds), the product of information technology-mediated social

interactions (social networks), or the place where information is stored and processed

(cloud). This diversity of spaces representing the wealth of cyberspace applications is

the basis of its success and of the rapid growth of its use.

This group of spaces is based on the global communications system – the Internet - to

which information systems and personal electronic devices connect to perform their

function. If not originally created for military purposes but certainly developed to be

used with that objective, the Internet penetrated the academic network in the late

1980s and quickly took over as a means of mass communication in the mid-1990s. In

its military origin, the main concern in the Internet’s design was resilience to partial

failures1

Soon cyberspace was perceived as a space of freedom, a kind of new global Far West

where no state could enforce the law and maintain order. In this context, two opposing

academic trends emerged.

, resulting in a fully distributed physical architecture and management without

any connection with the administrative map of nations.

The first suggests the failure of the legal system to deal with cyberspace and advocates

the creation of new forms of regulation adapted to its specificities.

The second supports a treatment of nonexceptionality regarding cyberspace and argues

that the challenges in its regulation are no different from those posed by other areas

where there are cross-border transactions.

1 One of the requirements asked to the creators of the Internet, then called ARPANET, was to ensure

tolerance to communication failure between military operational bases in a scenario of partial destruction

of their infrastructure. Consisting of a “web” of connections among the various “nodes”, information within

this network should always reach its destination as long as there was a path available to do so, thereby

reducing the criticality of each individual “node” for the global context of communications.

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ISSN: 1647-7251

Vol. 6, n.º 1 (May-October 2015), pp. 86-99

Cyberspace regulation: cesurists and traditionalists

Lino Santos

This article intends to present and discuss these two currents in the light of

developments since their initial formulation, and ascertain whether there is a trend or

primacy in the use of cyberspace regulatory mechanisms.

Characteristics of cyberspace

Some characteristics of cyberspace architecture pose serious challenges to the

governance of this new medium, as well as to the regulation of the various activities

conducted within in. To begin with, cyberspace dramatically increases the speed and

amount of communications, while reducing or eliminating the gap between institutions,

between individuals or between nations.

Emails or SMS are sent and received almost instantly, photographs, videos and opinion

articles are shared and disseminated globally in near real time, buying a book over the

Internet is now as easy and convenient as to do it in a bookstore. In this context,

cyberspace and the conversion from analog to digital brutally increased the frequency

and the speed of some existing unlawful behaviour. Examples include copyright

infringement, which has always existed but that digital technologies have facilitated and

carried to the extreme.

On the other hand, cyberspace is non-territorial. Unlike natural areas (air, sea, land,

and space) where states, within their capabilities, exercise sovereignty and enforce the

law within a relatively well defined physical territory, in cyberspace that exercise raises

demarcation problems.

In the same vein, B. Posen refers to it as another global common, comparing it to the

sea, air and outer space (Posen, 2014: 64). Therefore, classical concepts such as

"jurisdiction" or "property" - to give just a few examples - become fuzzy when applied

to cyberspace. The provision of online services will hardly ever comply with the legal

framework of all the states where they are available2

Finally, this virtual space ensures some degree of anonymity to those using it, which

again raises difficulties regarding the allocation of acts performed or the identity of the

authors. A Portuguese cybernaut or located in Portuguese territory may use a blog

service in the US to slander another Portuguese citizen. This same Internet user can

play an online game allowed in the country where the server is located but which is

banned in Portugal. He may also remotely practice a profession regulated in Portugal,

but which is not regulated in the country where the service is provided.

, creating difficulties in their

exercise of sovereignty, starting with the very choice of which applicable law to apply -

the law where the service is provided, or the law where the effects are produced?

Cyberspace has also brought about a set of new legal protection objects, expanded the

protection scope of some existing ones, and facilitated the emergence of new illegal

types. Figures such as digital identity, multiple identities, avatar, virtual money, or

Internet domain, and professions such as systems administrator, programmer or

blogger, still do not have rules that grant them rights and responsibilities.

2 J. P. Trachtman states that the big novelty of cyberspace is that “it will lead to more situations in which

the effects will be felt in multiple territories at once” (1998: 569).

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Cyberspace regulation: cesurists and traditionalists

Lino Santos

Similarly, traditional concepts such as privacy had their legal protection range extended

to include, for example, the right to be forgotten3

classified as unlawful in the context of juvenile pornography have started to include

ownership of this sort of material in digital format or merely viewing it.

, and actions

These and other challenges were evaluated at the turn of the century by various

scholars from the field of law. Discussion then allowed identifying two diverging trends

with regard to the regulation of cyberspace.

One must also

refer the need, perceived early, for the legal protection of actual computer systems that

constitute cyberspace to be treated separately in cybercrime law.

The first trend believes that some of the distinctive characteristics of cyberspace are

sufficient to justify the impossibility of using existing legal instruments and jurisdiction,

advocating a new paradigm of cyberspace regulation. Johnson and Post, among others,

share this view, defending cyberspace regulation for Internet users through self-

regulation (1996, 2002). In turn, Lessig advocates regulation through "code" and

cyberspace architecture (1999; in this as in all cases that follow, the translation is

mine).

On the other side there are those who argue that the challenges posed by cyberspace

to the law are not very different from those placed by other technological

developments, and that the transactions carried out within cyberspace are no different

from other transnational transactions conducted by other means. The main supporters

of this view are Goldsmith (1998) and Trachtman (1998), who reject the exceptionality

of cyberspace and defend an evolution within the framework of international law and

through strengthening supranational regulatory instruments.

The academic debate around the topic has led JP Goldsmith to dub "regulation sceptics"

those who, like Johnson and D. D. Post, emphasize the extraordinary nature of

cyberspace and ask for a new regulatory model (1998, pp. 1199). In turn, Post calls

“unexceptionalists” (2002: 1365) those who advocate that the problems posed by

cyberspace to the state's ability to exercise and enforce the law are not that different or

new. Without wishing to sound unkind to the authors, henceforth I shall refer to the

former as “cesurists” and the latter as “traditionalists”.

Taking advantage of the distance in time of this discussion, this paper will begin by

addressing the arguments advanced by "cesurists" and "traditionalists", and then will

analyse the two dominant solutions for a better regulation of cyberspace: self-

regulation and the additional supranational approach.

3 Article 17 of the European Commission’s proposal for the regulation of Personal Data Protection states

that “the data subject has the right to obtain from the controller the erasure of personal data concerning

him”. See Proposal for a European Parliament and Council Regulation on the protection of individuals with

regard to the processing of personal data and on the free movement of such data (general regulation on

data protection), available at http://ec.europa.eu/justice/data-

protection/document/review2012/com_2012_11_pt.pdf, accessed in September 2014.

4 See point f) of Article 20 of Convenção para a Protecção das Crianças contra Exploração Sexual

(Convention for the Protection of Children against Sexual Exploitation), Resolution of Assembleia da

República (Portuguese Parliament) no. 75/2012, of 28 May, stating that “[...] consciously accessing child

pornography through the use of communication and information technologies constitutes a crime”.

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Cyberspace regulation: cesurists and traditionalists

Lino Santos

Cesurism vs. Traditionalism

The term "cesurism" - coined by Herminio Martins (Garcia, 2006) is used here as a

reference to a line of reasoning that tends to deal with phenomena as being specific

and unprecedented, somehow renouncing time and history. This is precisely the

thinking of those who, like Johnson and Post, focus their attention on the novelty

cyberspace represents to justify the failure of the current regulation model based on

the law and the break with the past.

The argument of the "cesurists" focuses on the non-territoriality of cyberspace and,

more specifically, on the fact that clear boundaries are a necessary attribute for

effective law enforcement. The relationship between space and law, Johnson argues,

has multiple dimensions. On the one hand, it is the law that allows a state to exercise

sovereignty and control over its territory - a well delimited space recognized by all - as

well citizens to defend themselves from state action. In other words, the border

concept works as the limit within which the state enforces its law, as well as the limit

outside which citizens are safe from state action5. On the other hand, the legal

significance of the effects of an action - or absence of it - is the same within the same

judicial area and, most likely, different between different legal areas.6

Given this relationship between area and law, the "cesurists" argue that the

geographical location within known physical limits – borders - is essential to determine

the set of rights and responsibilities of legal entities, concluding that cyberspace

"radically undermines the relationship between legally significant phenomena and

physical location" (Johnson & Post 1996: 1370).

Conversely, the

legitimacy of the law comes from a state’s citizens direct or indirect participation in

drafting the law, this legitimacy being lost when applied otherwise. Finally, the

preventive effectiveness of the law results from prior knowledge of the law applicable to

the area where we practice relevant acts, or the law where such acts occur (Johnson &

Post, 1996).

Under this assumption, "cesurists" question the competence of any state to enforce law

and justice for acts committed in cyberspace and have reservations about the choice of

applicable law. Johnson and Post envision cyberspace as a single medium7

5 It is through law that a rule of law state governs the freedoms and responsibilities of its citizens and

institutions. The effective enforcement of this regulation is an act of sovereignty.

, as a new

action plan or parallel dimension whose border with our physical world is "made of

screens and passwords" (1996, 1367) where, once inside, there are no other barriers.

Once inside this cyberspace, communicating with the next door neighbour or someone

in the antipodes is exactly the same – actually, there is no concept of antipode within

6 Once again the call for the principles of a rule of law state, where the law must be equal for all. Obviously

this equality applies to all legal objects of that state, since the law can be different between states.

7 M. Libiki suggests that cyberspace is not a single medium but rather a “multiplicity of media – at least

yours, theirs and of the others” (2012: 326). Also L. Strate, in his brilliant article on cyberspace concepts,

proposes the existence of a multitude of cyberspaces centred on the experience of each individual (1999).

It should also be noted that in the ideological framework of a single cyberspace, the concept of “national

cyberspace” commonly used in the various national cybersecurity strategies would not make sense. See

The National Strategy to Secure Cyberspace (2003), available at https://www.us-

cert.gov/sites/default/files/publications/cyberspace_strategy.pdf, accessed in September 2014; or Italy’s

National Strategic Framework for Cyberspace Security (2014), available at

http://www.sicurezzanazionale.gov.it/sisr.nsf/wp-content/uploads/2014/02/italian-national-strategic-

framework-for-cyberspace-security.pdf, accessed in September 2014.

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Lino Santos

cyberspace - and the legal framework governing such communication either does not

exist or is difficult to identify .

The case which opposed the International League against Racism and anti-Semitism to

the US giant Yahoo illustrates these difficulties. In 2000, French citizen Marc Knobel, an

activist in the fight against neo-Nazism, found that Yahoo's auction portal was selling

neo-Nazi material. Through the aforementioned NGO, Knobel took Yahoo – a company

based in California - to court for violation of the French law banning Nazi goods

trafficking. The first reaction of one of the co-founders of Yahoo, Jerry Yang, was to

consider that the French court intended to impose a judgment in an area over which it

had no control. Regardless of this opinion, the trial continued, with the defence focusing

its arguments on the technical impossibility of distinguishing what was presented to

Yahoo French customers from what was presented to the other ones. For its part, the

prosecution defended the sovereignty of the French state to defend itself from the sale

of illegal Nazi goods from the United States and to question the reason for the

existence of an exceptional regime for Yahoo and cyberspace. The court ruled that

Yahoo violated French law and ordered the company to take all necessary measures to

dissuade and render impossible French citizens’ access to such contents. Yahoo’s claim

about the technical impossibility of fulfilling the court order, based on the idiosyncrasies

of the Internet architecture, was surpassed after several Internet gurus, including Vint

Cerf, advanced technical solutions that enabled Yahoo to comply with the court order

(Goldsmith & Wu, 2006: 1-10).

In line with Johnson's and Post’s argument regarding the uniqueness of cyberspace,

authority can only be exercised within a territory. These authors questioned the

legitimacy of a nation to regulate activities carried out in another country. They also

argue that international disputes over choice of a legal framework can be solved by

choosing the framework of the location where the unlawful acts are committed. These

assumptions guarantee uniformity, predictability and certainty in the application of

laws, which are values of rule of law. However, the above case suggests otherwise and

supports the views of the "traditionalists".

As opposed to "cesurists", "traditionalists", whose motto could be "nothing new under

the sun"8

, advocate that cyberspace is not an exception. For the "traditionalists",

"transactions in cyberspace are no different from cross-border

transactions occurring in the real space. [...] Both involve people

in real space in one territorial jurisdiction transacting with people

in real space in another territorial jurisdiction" (Goldsmith 1998:

1250).

For J. P. Trachtman, cyberspace is the medium. Conduct still occurs inside a territory,

its authors still reside in a territory, and, most importantly, effects, although more

dispersed than in the past, also continue to be produced in a territory (1998: 568)9

8 Ecclesiastes 1:9 “That which has been, is that which is to be, and that which has been done, is that which

will be done, and there is no new thing under the sun”.

. As

9 Trachtman rejects the “cesurist” view about the states’ reduced sovereignty as a result of cyberspace: “It

is not the state that has died, but the long-moribund theory of absolute territorial sovereignty.” (1998:

562)

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Cyberspace regulation: cesurists and traditionalists

Lino Santos

a result, the existing set of principles and traditional legal instruments are able to solve

the problems of choice of law and jurisdiction.

The idea that cyberspace brings nothing new is supported by Goldsmith using the

analogy with other communication and transnational transactions contexts. The author

accepts that the world is changing and that cyberspace is an expression of this change,

but notes that international law has evolved to meet these changes, namely "it is

commonly accepted that [in the absence of consensual international solutions] a nation

regulates the local effects of extraterritorial conduct" (Goldsmith 1998: 1212) and gives

industrial property as an example.

By way of conclusion, the other key idea of the "cesurists" is that the legal difficulties

mentioned above, combined with the technical difficulties posed by the characteristics

of cyberspace, render it impossible for states to regulate it. For Johnson and Post,

cyberspace ''creates a totally new phenomenon that needs to be subject to clear legal

rules, but it cannot be regulated satisfactorily by any sovereignty based on the concept

of territory'' (1996: 1375). The states’ technical and legal inability to exercise their

sovereignty over cyberspace will, initially, lead to the emergence of self-regulating

mechanisms (1996: 1387).

Traditionalists", in turn, argue that the technology exists and that, as demonstrated in

the case involving Yahoo, but also in many cases involving content filtering done for

various reasons, states can exercise their sovereignty and protect citizens from

offensive content or illegal activities (Goldsmith & Wu, 2006: viii). The information

involved in a transaction "appears in a territory, not by magic, but due to hardware and

software action located within that territory" (Goldsmith 1998: 1216), so acting on that

hardware and software makes it possible to perform the regulatory function.

Self-regulation of Cyberspace

This duality of views over a new issue that has not yet been understood in its fullness is

recurrent. Throughout history, the emergence of new technologies has led to stances in

support of their uniqueness and future role in breaking with the past and creating a

better world - instruments of universal peace - as well as to more conservative views

that immediately identify affinities with other past episodes. Armand Mattelart (2000),

in his History of Planetary Utopia, lists a series of historical examples where the

emergence of a new technology has led to the emergence of a liberating hope: the

printing press, the telegraph, the railways, or television.

As already mentioned, "cesurists" are convinced that cyberspace is one of those

liberating technologies. A technology that is sufficiently different from the real world to

prevent regulation of human behaviour in that space from being done through existing

mechanisms10

10 Lessig argues that the regulation of human behaviour is achieved through the convergence of four forces

– four regulators: the law, the market, social norms and, with regard to cyberspace, architecture (1999).

. Lessig argues that "something fundamental has changed" (1999: 126)

to support his thesis that in cyberspace "code is law", while Johnson and Post argue

that cyberspace belongs to Internet users and therefore "those who have defined and

use online systems have interest in preventing the security of their electronic territory

and in preventing crime" (1996: 1383), setting the mood for self-regulation of

cyberspace.

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Cyberspace regulation: cesurists and traditionalists

Lino Santos

The idea that cyberspace dilutes the concept of state sovereignty, and also that

problems in cyberspace should be left to Internet users, fits perfectly the "Internet-

centrism" profile as conceived by E. Morozov (2012). The belief in the liberating effect

of the Internet, mainly in the idea that it all comes down to, and that everything can be

explained or done via the Internet, enables understanding why Johnson and his

supporters defend different rules for cyberspace11

The theses of the "cesurists" are clearly part of an Internet euphoria context and did

not predict the societal changes triggered by the social networks over the past decade

or the concentration of power in the mega corporations in the sector. They fall within

the spirit and ideology of the Internet in its beginning and its users’ wish to keep it free

from regulation and intervention by states or to keep alive the idea that cyberspace

"can hold its promise of profound liberating leverage " (Post, 2000: 1439). This wish

has been expressed by groups like the Electronic Frontier Foundation, and in

manifestos like John Barlow’s (1996) A Declaration of the Independence of Cyberspace.

In this spirit, Johnson and Post point out some practical examples of self-regulation.

The authors suggest that the DNS system – a global system for allocating and

managing Internet naming, coordinated by a non-profit international organization called

ICANN12, was being redesigned in a process of self-regulation to accommodate a set of

safeguards demanded by the "industrial property" (1996: 1388). Nearly twenty years

later, we can evaluate how this process took place. Although DNS management

remains in the hands of Internet users, almost all European countries have liberalized

Internet domain registration rules, putting more pressure on the management of

industrial property rights and creating phenomena such as financial cybersquatting -

financial speculation with the most desirable Internet names. There is actually a self-

regulation system in this area, according to a model of international best practice.

However, this self-regulation proves to be insufficient and resorting to industrial

property law to resolve conflicts is recurrent. However, it should be noted that, as

suggested by Johnson, some countries created specialized arbitration courts13

11 “Internet-centrists like to answer every question about democratic change by first reframing it in terms of

the Internet rather than the context in which change is to occur” (Morozov, 2012: xvi). One of Morozov’s

favourite targets is North American writer Clay Shirky, (2009), who he describes as cyber utopian.

with the

needed know-how to address cyber particularities (1996: 1387). With regard to the

growing number of unsolicited email messages, commonly known as spam, Post gives

another example of self-regulation as a way of resolving concrete cyberspace issues.

Post presents us one of several initiatives to create a reputed centralized database for

email addresses or email servers (Realtime Blackhole List), remotely powered by

volunteers whom he calls activists (2000: 1440) as a good example of self-regulation

or of how the network will operate in the future. This group of volunteers establishes,

together, a set of rules which all participants in cyberspace adhere to. It is indeed a

beautiful ideal, but which history has not confirmed. Firstly, not one but several similar

initiatives have emerged, creating a problem of choice for email services

administrators. Then, the volunteer system has become a constraint in terms of the

12 Internet Corporation for Assigned Names and Numbers. See https://www.icann.org, accessed in

September 2014.

13 In Portugal’s case, the rules for the registration of Internet names includes the possibility of appealing to

a specialized arbitration court See .PT Domain Registration Rules, Chapter VI, available at

http://www.dns.pt/en/domains-2/domain-rules/chapter-vi/, accessed in March 2015.

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Lino Santos

quality of service, for which reason it led to the commodification of some of these

services - the current model14

In another perspective of the meaning of self-regulation, Lessig's thesis about the

code's role in cyberspace regulation is ambivalent. On the one hand, it supports the

idea that the production of the standards governing cyberspace lies in its architects and

programmers rather than the state. In this scenario, the regulatory power is both in the

hands of the telecommunications industry and those of the media and Internet

applications industries, which through their products govern and shape behaviours in

cyberspace. By keeping untouched the principles of net neutrality and the non-duty to

watch over the contents transmitted through or stored in their infrastructure, digital

media giants have been introducing in their applications reporting mechanisms for the

removal of offensive content or reputation mechanisms for risk assessment in

commercial transactions between strangers. On the other hand, creating norms also

lies in the hands of ordinary people, who can create a new application and thus produce

standards. In both cases this form of producing standards may conflict with other

regulatory authorities. Good examples of this self-regulation include: Skype, a global

system for voice communications created by two Nordic young people outside the

regulatory framework for telecommunications and which violates criminal law

provisions in various jurisdictions, such as the telephone interception regime; or the

Pretty Good Privacy, an encryption platform developed by Phil Zimmermann, who

infringed, among others, the US law on the export of encryption algorithms. On the

other hand, Lessing’s thesis defines code as the means to comply with the law in a

more effective way:

. Furthermore, other forms of solving the spam problem

have arisen. The market saw the opportunity and cloud giants like AO, Microsoft and

Google created the Sender Policy Framework, Sender ID, or the DKIM - to name only

the most well-known – so the "collective consensus "advocated by Post (2000: 1456)

does not exist, to date. In short, as far as the treatment of spam is concerned, we can

say that we suffer from "too much" self-regulation.

"code displaces law by codifying the rules, making them more

efficient than they were just as rules" (Lessig, 1999: 206).

In other words, the state can take advantage of code to exercise its sovereignty. Just

as companies have codified their business processes, reducing arbitrariness and

employee error, states are beginning to codify some of their functions - particularly

those where interaction with citizens is required - with efficiency gains. The current

model of tax collection in Portugal is an example of this, where codifying traders’

behaviour to issue invoices and codifying taxpayers’ behaviour for completing their tax

returns constitutes the very law, with the term "statement" starting not to make sense.

In the opposite direction of self-regulation, cyberspace architecture also created a set

of opportunities for the control and surveillance of society. Authoritarian states were

the first to realize this possibility15

14 The business model of many of these RLBs involves charging a fee for removing entries from the list.

, but quickly passive surveillance, indiscriminate

15 Perhaps the most obvious example of this control is the Great Firewall of China, which is a technological

infrastructure allegedly able of monitoring and selectively blocking communications and content within

Chinese cyberspace and between the latter and the rest of the world, a kind of virtual censorship “blue

pencil” operating in real time.

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Lino Santos

collection of metadata and the concept of big data in supporting the functions of

sovereignty attracted supporters all over the world. States have realized that for better

control of cyberspace - theirs and of others, as MC Libiki (2012) put it - the major

Internet industry companies can play a key role, whether in the architecture of

information flows’ topology or in the design of the service’s specific functions. To give

just one example, the physical location of the Google global search engine is

geopolitically relevant. This strategic interest thickens up when we talk about

information storage. For example, in the dispute between Google and the government

of the PRC in 2010, the latter saw the former as a component of American power

(Klimburg 2011: 52).

Disaggregated sovereignty

Aware of the limits of the cyberspace self-regulation process, several authors suggest

that traditional regulatory mechanisms should be complemented by a supranational

approach to more complex problems. In a more traditionalist perspective – the one that

does not advocate an exceptional regime for cyberspace – sharing power with other

institutions to better meet the various challenges of global governance, not just those

posed by cyberspace, is commonly accepted. The best known examples of this network

governance are the various institutions of the United Nations, such as the World Health

Organization or the World Trade Organization.

These response structures to contemporary problems of transnational governance have

been theorized, among others, by WH Reinicke, who named them "global public policy

networks" (1999) or by A.M. Slaughter, who called them "disaggregated sovereignty"

(2009). The objectives of these networks fall within the concept of soft-power and

determine the transposition of the concept of sovereignty centred on the administration

of the territory into a combination of powers established in the states and supranational

decentralized mechanisms for coordination among them. These mechanisms are based

on structures that bring together the stakeholders – from the government, the

economy and also from the civil society - to take advantage of the benefits of networks

in knowledge management, to share information and ideas and to coordinate policies

among themselves without the negotiated formal nature of a treaty (Mueller, 2010:

40). These forms of government coincide with the concept of multi-stakeholder

approach advocated, for example, in the Internet Governance Forum, or in the various

working groups of the European Union.

Supporters of this approach do not see it as a loss of state sovereignty, but as

inevitable for solving global problems. As Slaughter states,

“however paradoxical it sounds, the measure of a state’s capacity

to act as an independent unit within the international system – the

condition and objective of sovereignty – depends on the breadth

and depth of its links to other states” (2009: 268).

Cyberspace’s regulatory problems are no exception to this rule. As stated by JS Nye Jr.

(2010: 3),

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"cyberspace will not replace geographical space and will not

abolish state sovereignty, but the diffusion of power in cyberspace

will coexist and greatly complicate what it means to exercise

power along each of these dimensions”.

In this regard, various authors advocate a global solution to a global problem. HH

Perritt Jr. suggests that

"taking into account the potential of [cyberspace] requires an

evolution of international public and private institutions so that the

rules for responsibility assignment can be enforced effectively,

even in relation to conduct that cannot be located territorially in a

particular state" (1996: 113).

Trachtman also insists that "it is worth devising a stronger institutional solution" (1998:

569) for the regulation of cyberspace.

One area where this disaggregated sovereignty has been producing effects is in fight

against cybercrime. The need for a transnational approach to the challenges posed by

crime in computer networks was perceived very early. In 1990 the United Nations

General Assembly adopted its first resolution on the need to develop international

cooperation forms and instruments for combating cybercrime16

Again within the United Nations, the 11th Congress on Prevention and Criminal Justice

held in 2005 produced a declaration expressing the need for legislative harmonization

in the fight against cybercrime

This objective was attained in 2004 at the meeting of the G8 Ministers of Interior held

in Washington, which produced an action plan to combat high-tech crime, encouraging

all countries to adopt the Convention on Cybercrime of the Council of Europe, 2001

This Convention is often referred to as the first international working document

resulting from deep reflection on the subject (Verdelho et al., 2003). One of its main

objectives is to harmonize the various national laws concerning crimes committed

16 Resolution A/RES/45/121, Eighth United Nations Congress on the Prevention of Crime and the Treatment

of Offenders, available at http://www.un.org/documents/ga/res/45/a45r121.htm, accessed in May 2014.

This resolution resulted in a guide on the prevention and control of computer-related crimes. See United

Nations Manual on the Prevention of Computer-related Crime, available at

http://www.uncjin.org/Documents/irpc4344.pdf, accessed in May 2014. In 2000, the same Congress

adopted a new resolution on fighting the criminal use of information technologies, reinforcing the need for

member states to ensure that legal systems did not create free zones for the exercise of this type of

criminal activity and calling for increased transnational criminal and legal cooperation. See Resolution

A/RES/55/63, Combating the criminal misuse of information technologies, available at

http://www.unodc.org/pdf/crime/a_res_55/res5563e.pdf, accessed in May 2014.

17 See Synergies and Responses: Strategic Alliances in Crime Prevention and Criminal Justice, “Bangkok

Declaration”, available at http://www.unodc.org/p df/crime/congress11/BangkokDeclaration.pdf, accessed

in May 2009.

18 Full text available at http://conventions.coe.int/Treaty/en/Treaties/Html/185.htm, accessed in May 2009.

For a summary on the origin and objectives of the Convention on Cybercrime, see

http://conventions.coe.int/Treaty/en/Summaries/Html/185.htm, accessed in May 2014.

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Lino Santos

against computer networks or content crimes in computer networks. In addition to the

criminal law, the Convention also aimed at a more effective transnational cooperation,

contributing to that effect with a set of criminal procedural law institutes and the

creation of instruments for transnational judicial cooperation.

Also in the context of the United Nations, some unsuccessful attempts were made to

conclude an agreement to limit the use of cyber weapons by a state. Due to distrust in

the efficacy of such an agreement, in particular regarding the possibility of checking it,

or simply because there is no strategic advantage for the US, this country has

consistently rejected this agreement (Clark & Knake, 2010: 219-225).

In the same direction and in response to the growing centrality of cyberspace in

terrorist activities, either as an instrument or as a potential target, the European Union

is about to adopt measures to better control and monitor jihadist activities on the

Internet. Among these, the creation of a special unit within Europol stands out, with a

view to monitoring the Internet and strengthening public-private cooperation with

social media major giants such as Facebook or Twitter, to ensure the effectiveness of

such monitoring19

Another example of disaggregated sovereignty for better regulation of cyberspace will

arise with the new EU directive on network and information security which, predictably,

will also be approved in 2015. The draft directive

includes the creation of fora to

share information and best practices, to combine efforts in response to cyber security

incidents and strengthen the relationship between national cybersecurity authorities, in

a multi-stakeholder approach.

Conclusions

Repeatedly, the emergence of a new technology has originated stances in support of its

exceptionality and break with the past. As suggested by Trachtman,

"perhaps because the technology is so exhilarating, there is a

tendency to claim that the changes we do observe in sovereignty,

the state, jurisdiction, and law all are caused by cyberspace"

(1998: 561).

The same had happened with the advent of the telephone, the telegraph and radio.

Much of the difficulties in regulation and law enforcement in cyberspace are due to

profound changes in society - catalysed by that very same cyberspace - such as the

deepening of globalization and the consequent increase in cross-border transactions or

the speed of technological development. On the other hand, cyberspace has distinct

and ambivalent features that pose great challenges to states in terms of its regulation,

19 See EU proposes terror unit to tackle online jihadism, Financial Times, 11 March 2015, available at

http://www.ft.com/intl/cms/s/0/4d93b7f0-c804-11e4-9226-00144feab7de.html, accessed in March 2015.

20 See COM(2013) 48 final, Proposal for a Directive of the European Parliament and of the Council

concerning measures to ensure a high common level of network and information security across the

Union, available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2013:0048:FIN:PT:PDF,

accessed in September 2014.

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but also opportunities for greater surveillance of society. Therefore, we are not faced

with an exceptional problem, but rather with a libertarian, economic and political

opportunity for the various stakeholders involved.

After almost twenty years after the work of Johnson and Post, Law and borders: the

rise of law in cyberspace, the path set for its regulation is not absolutely clear.

Depending on the interests of each state (economic or security) we have situations

where greater self-regulation (economic interest) prevails and others where there is

growing surveillance and control of society (security interest), resulting in the

fragmentation cyberspace into cyberspaces.

We can also say that under these two trends, cyber-utopianism is exactly that: utopia.

"It's too easy to argue that the regulation of cyberspace belongs to

the cyberspace society." (Trachtman 1998: 568)

The two approaches examined here - self-regulation and disaggregated sovereignty -

coexist and most likely will continue to coexist. As stated in the chapter on guiding

principles of the 2011 Dutch Cybersecurity Strategy: "Self-regulation if possible,

legislation and regulation if necessary”21

Finally, and considering the difficulties discussed here for a state to carry out, per se,

this regulation, we observe the emergence of transnational governance networks and

the strengthening of their role on the political agenda. The concept of absolute

sovereignty centred on the administration of the territory is becoming diluted and

global issues are addressed in these transnational structures. A global approach to

global problems is required.

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