AGAINST "AGAINST CYBERANARCHY"
By David G. Post
I. INTRODUCTION
It makes me indignant when I hear a work
Blamed not because it's crude or graceless but
Only because it's new . . .
Had the Greeks hated the new the way we do,
Whatever would have been able to grow to be old?1
Professor Jack Goldsmith's Against Cyberanarchy2
has become
one of the most influential articles in the cyberspace law canon. The posi-
tion he sets forth--what I call "Unexceptionalism"--rests on two main
premises. The first is that activity in cyberspace is "functionally identical
to transnational activity mediated by other means"3
(e.g., "mail or tele-
phone or smoke signal"4
). The second is that, as a consequence of this
functional identity, the "settled principles" and "traditional legal tools"5
of
the international lawyer are fully capable of handling all jurisdictional and
choice-of-law problems in cyberspace. Thus, the "choice-of-law problems
implicated by cyberspace are not significantly different from those [of]
non-cyberspace conflicts,"6
and we therefore need make no special provi-
sion for these problems when they arise in cyberspace.
I beg, in what follows, to differ. I remain an unrepentant Excep-
 2002 David G. Post
 Professor of Law, James E. Beasley School of Law at Temple University.
DPost@vm.temple.edu. Thanks to Tom Bell, Paul Berman, Jeff Dunoff, Jack Goldsmith,
Dan Hunter, David Johnson, Larry Lessig, Neil Netanel, Dawn C. Nunziato, and Eugene
Volokh, as well as the participants at the November 2002 Wharton Legal Studies Collo-
quium, for their comments on earlier drafts, and to Shannon Burke for research assis-
tance.
1. HORACE, THE EPISTLES OF HORACE 117 (David Ferry trans., Farrar, Straus and
Giroux 2001) (n.p., 14 b.c.).
2. Jack L. Goldsmith, Against Cyberanarchy, 65 U. CHI. L. REV. 1199 (1998)
[hereinafter Against Cyberanarchy].
3. Id. at 1240.
4. Id.
5. Id. at 1200.
6. Id. at 1233-34.
2 BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 17:1
tionalist. Communication in cyberspace is not "functionally identical" to
communication in realspace--at least, not in ways relevant to the applica-
tion of the choice-of-law and jurisdictional principles under discussion.
Furthermore, the jurisdictional and choice-of-law dilemmas posed by cy-
berspace activity cannot be adequately resolved by applying the "settled
principles" and "traditional legal tools" developed for analogous problems
in realspace.
Unexceptionalism in cyberspace
Border-crossing transactions have always presented the international legal
system with difficult and challenging jurisdictional questions: Whose law
applies to such transactions? Which sovereign(s) have jurisdiction to pre-
scribe law for transactions that originate in one country and terminate
elsewhere? When and to what extent is extraterritorial regulation permis-
sible?
In Against Cyberanarchy, Jack Goldsmith asked us to consider
the predicament of one of the scores of companies that offer,
sell, and deliver products on the World Wide Web. Assume that
the web page of a fictional Seattle-based company, Digital-
book.com, offers digital books for sale and delivery over the
Web. One book it offers for sale is Lady Chatterley's Lover. This
offer extends to, and can be accepted by, computer users in every
country with access to the Web. Assume that in Singapore the
sale and distribution of pornography is criminal, and that Singa-
pore deems Lady Chatterley's Lover to be pornographic.
Assume further that Digitalbook.com's terms of sale contain a
term that violates English consumer protection laws, and that the
publication of Digitalbook.com's Lady Chatterley's Lover in
England would infringe upon the rights of the novel's English
copyright owner. Digitalbook.com sells and sends copies of
Lady Chatterley's Lover to two people whose addresses (say,
anonymous@aol.com and anonymous@msn.com) do not reveal
their physical location but who, unbeknownst to Digital-
book.com, live and receive the book in Singapore and London,
respectively.7
This scenario, Goldsmith acknowledged, raises some difficult prob-
lems: Does English law, Singaporean law, or both, apply to Digital-
book.com's conduct? Would application of either of these bodies of law
7. Id. at 1204-05.
2002] AGAINST "AGAINST CYBERANARCHY" 3
constitute "impermissible extraterritorial regulation of a U.S. corpora-
tion"?8
If Digitalbook.com "cannot limit its cyberspace information flows
by geography,"9
would application of English or Singaporean law cause
Digitalbooks.com to remove Lady Chatterley's Lover10
from circulation
(or, at the very least, to "raise its price"11
), thereby "adversely affect[ing]
the purchasing opportunities of parties in other countries"?12
And if so, are
these "negative spillover effects" of national regulation "illegitimate [and]
unfair"13
--especially given that "Digitalbook.com had no way of knowing
that it sold and delivered a book to consumers in these countries"?14
Goldsmith's position--what I term "Unexceptionalism"--is straight-
forward. However difficult and complicated Digitalbooks.com's problems
may be, they are no more difficult or complicated because the underlying
transactions take place "in cyberspace." As Goldsmith puts it,
[t]ransactions in cyberspace involve real people in one territorial
jurisdiction either (i) transacting with real people in other territo-
rial jurisdictions or (ii) engaging in activity in one jurisdiction
that causes real-world effects in another territorial jurisdiction.
To this extent, activity in cyberspace is functionally identical to
transnational activity mediated by other means, such as mail or
telephone or smoke signal.15
To the Unexceptionalist, whether a transaction occurs in cyberspace or
realspace does not matter. The questions of jurisdiction and choice of law
posed by Digitalbooks.com's conduct are not "unique to cyberspace"16
8. Id. at 1205.
9. Id.
10. See id.
11. Id.
12. Id. at 1205.
13. Id.
14. Id.
15. Id. at 1239-40 (emphasis added); see also Jack L. Goldsmith, The Internet and
the Abiding Significance of Territorial Sovereignty, 5 IND. J. GLOBAL LEGAL STUD. 475,
479 (1998) [hereinafter The Abiding Significance] ("Internet activities are functionally
identical to these non-Internet activities. People in one jurisdiction do something--upload
pornography, facilitate gambling, offer a fraudulent security, send spam, etc.--that is
costly to stop at another jurisdiction's border and that produces effects within that juris-
diction deemed illegal there."); Allan R. Stein, The Unexceptional Problem of Jurisdic-
tion in Cyberspace, 32 INT'L LAW 1167, 1180 (1998) ("The Internet is a medium. It con-
nects people in different places. The injuries inflicted over the Internet are inflicted by
people on people. In this sense, the Internet is no different from the myriad of ways that
people from one place injure people in other places . . . .").
16. Against Cyberanarchy, supra note 2, at 1234.
4 BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 17:1
because "identical problems arise all the time in real space."17
After all,
people have been communicating and transacting with other people in
other territorial jurisdictions for a long time, well before the Internet raised
its head. Thus, the questions created by Digitalbook's conduct may be
complex and challenging, but they are "no more complex or challenging
than similar issues presented by increasingly prevalent real-space events
such as airplane crashes, mass torts, multistate insurance coverage, or mul-
tinational commercial transactions, all of which form the bread and butter
of modern conflict of laws."18
Over the past century or so, a number of important principles of law
and analytical tools have evolved to resolve the jurisdictional problems
posed by border-crossing transactions. These traditional principles and
tools, though developed to deal with realspace phenomena, do not sponta-
neously disintegrate or misfire when we apply them to phenomena on the
global electronic network. Cyberspace transactions "are not significantly
less resistant to the tools of conflict of laws, than other transnational trans-
actions,"19
and it would therefore be a mistake to "underestimate the po-
tential of [these] traditional legal tools and technology to resolve the mul-
tijurisdictional regulatory problems implicated by cyberspace."20
Those who think otherwise--Goldsmith calls them "regulation skep-
tics,"21
though I prefer the less loaded and more symmetrical term "Excep-
tionalists"--believe that cyberspace is somehow different, that it matters,
for purposes of understanding these jurisdictional questions, that Digital-
books.com is operating on the World Wide Web and not in a brick-and-
mortar realspace storefront. Exceptionalists, in Goldsmith's view, are
skeptical of the "potential of traditional legal tools and technology to re-
solve the multijurisdictional regulatory problems implicated by cyber-
space."22
They believe that "the application of geographically based con-
ceptions of legal regulation and choice of law to a-geographical cyber-
space activity either makes no sense or leads to hopeless confusion,"23
and
that because "cyberspace transactions occur `simultaneously and equally'
in all national jurisdictions, regulation of the flow of this information by
any particular national jurisdiction illegitimately produces significant
17. Id.; see also Stein, supra note 15, at 1191 ("Jurisdiction in cyberspace is not
unproblematic. My point is that it is not uniquely problematic.") (emphasis added).
18. Against Cyberanarchy, supra note 2, at 1234.
19. Id. at 1201.
20. Id. at 1200-01.
21. Id. at 1199.
22. Id. at 1200-01.
23. Id. at 1200.
2002] AGAINST "AGAINST CYBERANARCHY" 5
negative spillover effects in other jurisdictions."24
The problem with Exceptionalism, Goldsmith tells us, is that it is "in
the grip of a nineteenth century territorialist conception of how `real
space' is regulated and how `real-space' conflicts of law are resolved."25
This outdated and discredited territorialist conception--"Hermetic Territo-
rialism,"26
he calls it--involves a belief that there must be "a unique gov-
erning law for all transnational activities,"27
a "single legitimate governing
law for transborder activity based on discrete territorial contacts."28
Her-
metic territorialism directs us to identify one body of law applicable to
Digitalbooks.com's behavior, and to define the "discrete territorial con-
tact" which is a necessary prerequisite to the application of local law to its
conduct.
Hermetic territorialism, though it held sway for several hundred years,
was repudiated as part of a "revolution[ ] [in] conflict of laws in the sec-
ond half of [the 20th] century."29
Many factors--including "[c]hanges in
transportation, communication, and in the scope of corporate activity
[leading] to an unprecedented increase in multijurisdictional activity"30
--
led directly to an "expansion of the permissible bases for territorial juris-
diction."31
The result is that in "modern times[,] a transaction can legiti-
mately be regulated [not only] . . . by the jurisdiction where the transaction
occurs"32
and "the jurisdictions where the parties burdened by the regula-
tion are from,"33
but also by "the jurisdictions where significant effects of
the transaction are felt."34
Under "current conceptions of territorial sovereignty," a sovereign "is
allowed to regulate extraterritorial acts that cause harmful local effects
24. Id.
25. Id. at 1205.
26. Id. at 1206.
27. Id. at 1208 (emphasis added).
28. Id. at 1206 (emphasis added).
29. Id. at 1208.
30. Id. at 1206 (noting that these "significant changes in the world" led to an "un-
precedented increase in multijurisdictional activity" and "put pressure on the rigid territo-
rialist conception").
31. Id. at 1207; see also Stein, supra note 15, at 1169 ("As people and transactions
became more mobile, jurisdictional rules based solely on the current location of the de-
fendant were strained. Courts increasingly had a need to assert authority over persons not
currently within their borders, and improvements in communications and transportation
rendered travel to a distant judicial forum less onerous than it once had been.").
32. Against Cyberanarchy, supra note 2, at 1208.
33. Id.
34. Id. (emphasis added).
6 BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 17:1
unless and until it has consented to a higher law (for example, interna-
tional law or constitutional law) that specifies otherwise."35
If that means,
as it often does, that "more than one jurisdiction can legitimately apply its
law to the same transnational activity,"36
so be it; under the modern view,
there is no need to find the single discrete territorial event on which to
base the application of any single body of law.
As a result of this change in viewpoint and the repudiation of Hermetic
Territorialism, extraterritorial regulation is "commonplace in the modern
world."37
Both customary international law and the U.S. Constitution
"permit a nation to apply its law to extraterritorial behavior with substan-
tial local effects."38
It is, for instance "relatively uncontroversial"39
that a
newspaper publisher "is liable for harms caused wherever the newspaper
is published or distributed."40
There is "nothing extraordinary or illegiti-
mate" about this "unilateral regulation of transnational activity that affects
activity and regulation in other countries."41
Therefore, neither Singa-
pore's nor England's regulation of Digitalbook.com is "less legitimate
than the United States' regulation of the competitiveness of the English
reinsurance market, which has worldwide effects on the availability and
35. Id. at 1240. See id. at 1239 ("[A] nation's right to control events within its terri-
tory and to protect its citizens permits it to regulate the local effects of extraterritorial
acts."); Id. at 1208 (noting that it "seems clear that customary international law . . . per-
mits a nation to apply its law to extraterritorial behavior with substantial local effects").
See also RESTATEMENT (THIRD) OF FOREIGN RELATIONS § 402(1)(c) (1987) (concluding
that unless "unreasonable," a state has jurisdiction to prescribe law with respect to "con-
duct outside its territory that has or is intended to have substantial effect within its terri-
tory"); Goldsmith, supra note 15, at 479 ("The effects criterion tells us that it is legiti-
mate for a nation to apply its regulation to an extraterritorial act with harmful local ef-
fects."); Neil Weinstock Netanel, Cyberspace Self-Governance: A Skeptical View from
Liberal Democratic Theory, 88 CALIF. L. REV. 395, 491 (2000) (criticizing as "funda-
mentally incorrect as a matter of positive international law" the notion that a sovereign
"cannot properly legislate or otherwise prescribe law" that applies to extraterritorial con-
duct); id. at 490 n.395 (noting a sovereign "has a right to prohibit . . . speech if [speakers]
can be said to have communicated their speech within [the sovereign's] territory or, . . . if
[the] speech is deemed to occur entirely [elsewhere] but nevertheless has substantial ef-
fect within [the sovereign's territory]") (emphasis added) (citing 1 SIR ROBERT JENNINGS
& SIR ARTHUR WATTS, OPPENHEIM'S INTERNATIONAL LAW 460, 472-76 (9th ed. 1992)).
36. Against Cyberanarchy, supra note 2, at 1208.
37. Id. at 1239.
38. Id. at 1208.
39. Id. at 1230.
40. Id.
41. Id. at 1240.
2002] AGAINST "AGAINST CYBERANARCHY" 7
price of reinsurance."42
The bottom line? "It is settled with respect to realspace activity"43
--
elsewhere Goldsmith refers to this as one of two "uncontested assump-
tions"44
--"that a nation's right to control events within its territory and to
protect its citizens permits it to regulate the local effects of extraterritorial
acts."45
Thus,
prevailing concepts of territorial sovereignty permit a nation to
regulate the local effects of extraterritorial conduct even if this
regulation produces spillover effects in other jurisdictions[, and
that] . . . such spillover effects are a commonplace consequence
of the unilateral application of any particular law to transnational
activity in our increasingly interconnected world.46
And if all that is "settled with respect to realspace activity," why
would we think that cyberspace is any different?
III. SETTLED PRINCIPLES
The core of the Unexceptionalists' argument thus contains a simple,
but very powerful, syllogism:
Transnational activities of an ordinary, brick-and-mortar
bookstore--"Analogbooks, Inc."--are subject to "settled princi-
ples" of "customary international law."
These settled principles hold that if Analogbooks' realspace
activities produce "substantial local effects" in Singapore, or in
England, those activities can "legitimately be regulated" by those
governments.
Digitalbooks' activities are "functionally identical" to
Analogbooks' activities.
Therefore, if Digitalbooks' cyberspace activities produce "substantial
local effects" in Singapore, or in England, those activities can "legiti-
mately be regulated" by those governments. The logic is unassailable: If X
is true in environment 1, and if environment 2 is "functionally identical"
42. Id.
43. Id. at 1239.
44. Id. at 1212.
45. Id. at 1239.
46. Id. at 1212.
8 BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 17:1
to environment 1, then X is true in environment 2. The argument, how-
ever, is not quite as persuasive as it might appear at first glance.
Take, for instance, the Unexceptionalists' reliance upon settled princi-
ples of customary international law. Even accepting Professor Goldsmith's
assertion that these principles "are settled"--in particular, the "uncon-
tested assumptions"47
that, at least in modern times, transactions "can le-
gitimately be regulated by . . . the jurisdictions where significant effects of
the transaction are felt,"48
and that "a nation's right to control events
within its territory and to protect its citizens permits it to regulate the local
effects of extraterritorial acts"49
--it is clear that this "modern view" of
international jurisdiction is itself the product of profound changes in the
world over the past century or so (as Goldsmith himself points out50
).
These now-settled principles were, in other words, once themselves in
conflict with then-settled principles. It was once "settled" law that a state
cannot regulate extraterritorial acts, the "substantial local effects" of those
acts notwithstanding, and that therefore Analogbooks' activities could not
"legitimately be regulated" in either Singapore or England. The Unexcep-
tionalists of one hundred, or even fifty, years ago might have made an ar-
gument very much like Goldsmith's, arguing that rail transport, the tele-
phone, or radio broadcasting, would (and should) have no effect on our
analysis of jurisdictional problems. We can imagine the following collo-
quy:
Scene: A New York street corner, circa 1900. Two law profes-
sors, Professor E and Professor U, meet.
Professor E: "Have you noticed? This telegraph thing changes
everything! I can step inside a Western Union office in New
York and execute a contract in San Francisco instantaneously!
Incredible, eh?"
Professor U: "Well, I suppose it is. But what of it?"
E: "What of it? Surely you jest. The world as we know it will
never be the same. We're going to need new principles of law to
deal with this phenomenon. Our jurisdictional principles--
especially the one that requires physical presence for the exer-
47. Id.
48. Id. at 1208.
49. Id. at 1239.
50. See supra notes 29-31.
2002] AGAINST "AGAINST CYBERANARCHY" 9
cise of `jurisdiction to prescribe'--must yield to this new con-
text, no?"
U: "Not at all. Transactions completed by telegraph are function-
ally identical to those completed by mail or by smoke signal;
they all involve real people in one territorial jurisdiction either (i)
transacting with real people in other territorial jurisdictions or
(ii) engaging in activity in one jurisdiction that causes real-world
effects in another territorial jurisdiction. It is settled law that the
people of California cannot reach people and transactions occur-
ring outside of its borders. Why would we need to adjust those
principles now?"
Life, Kierkegaard said, must be lived forwards, but it can only be un-
derstood backwards.51
Looking backwards, of course, we know that events
proved those Unexceptionalists wrong. Though it was surely difficult to
see at the time, the world was changing profoundly, and settled under-
standings were becoming unsettled because of that change. How would
Professors U and E have known that this unsettling was occurring before
their very eyes? How would we know if the world was again changing,
unsettling our settled understandings? In retrospect, it may be easy to
identify such seismic shifts in the legal landscape, phase transitions be-
tween different ordered states of an entire domain of legal thought and
practice. But in prospect, that may not be so easy.
The world, sometimes, does that--changes profoundly. When it does,
settled understandings sometimes change with it. Unless we think that for
some reason this cannot happen again, questions about the legitimate
scope of a nation's jurisdictional reach cannot rest on the notion that those
questions are somehow already, and forever, "settled."
IV. FUNCTIONAL IDENTITY
That the world can change so as to unsettle settled principles does not,
of course, mean that it has done so in ways that are relevant to the ques-
tions at hand. The Unexceptionalists say that it has not; activity in cyber-
space is "functionally identical to transnational activity mediated by other
means, such as mail or telephone or smoke signal."52
What could that possibly mean? It does not take a great deal of insight
51. See 1 SOREN KIERKEGAARD'S JOURNALS AND PAPERS 450 (Howard V. Hong &
Edna Hong eds., 1967).
52. Against Cyberanarchy, supra note 2, at 1240 (emphasis added).
10 BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 17:1
or deep thinking to come up with ways in which activity in cyberspace is
functionally not identical to activity in realspace. For example, in cyber-
space, I can communicate an offer to sell some product or service
· instantaneously (or nearly so);
· at zero marginal cost (or nearly so);
· to several million people;
· with near-zero probability of error in the reproduction or distribu-
tion of that offer;
· which can be stored, retrieved, and translated into another lan-
guage by each of the recipients (instantaneously, and at zero mar-
ginal cost); and
· to recipients who have the capability to respond to my offer (in-
stantaneously, and at zero marginal cost).
I surely cannot engage in a transaction having all of those features us-
ing mail, telephones, or smoke signals.
The Unexceptionalists are intelligent and sophisticated thinkers; how
could they possibly think that activity in communication in cyberspace is
"functionally identical"--not, mind you, merely functionally similar, or
even roughly equivalent, but identical--to realspace communication?
Asking whether realspace and cyberspace transactions are identical to
or different from one another is like asking whether life on land is identi-
cal to or different from life in the ocean. The answer is that it is, and it
must be, simultaneously, both; it depends entirely on the questions you are
asking.53
The second law of thermodynamics, gravity, and the principle of
53. Confronted with the assertion "that in all the vast countries of America, there is
but one language," Thomas Jefferson pondered the question: "what constitutes identity,
or difference, in two things, in the common acceptation of sameness?" This, he wrote, is
a question of definition, in which every one is free to use his own . . . All languages may
be called the same, as being all made up of the same primitive sounds, expressed by the
letters of the different alphabets. But, in this sense, all things on earth are the same, as
consisting of matter. . . . [and] it may be learnedly proved, that our trees and plants of
every kind are descended from those of Europe, because, like them, they have no loco-
motion, they draw nourishment from the earth, they clothe themselves with leaves in
spring of which they divest themselves in autumn for the sleep of winter, etc. Our ani-
mals too must be descended from those of Europe, because our wolves eat lambs, our
deer are gregarious, our ants hoard, etc.
Letter from Thomas Jefferson, Third President, United States of America, to John Ad-
ams, Second President, United States of America. THE ADAMS-JEFFERSON LETTERS: THE
2002] AGAINST "AGAINST CYBERANARCHY" 11
natural selection work identically in the two environments; the mechanics
of sound propagation, buoyancy, and chemical diffusion do not. For the
purpose of answering some questions (e.g., about the mechanics of genetic
recombination in mammals, energy transmission within food webs, or the
relative advantages of sexual and asexual reproduction) we ignore the dif-
ferences between the two environments and lump terrestrial and oceanic
organisms together. For the purpose of answering other questions (e.g.,
about social communication within animal populations, the mechanics of
oxygen transport, or the design of the mammalian forelimb) we must dis-
tinguish between terrestrial and oceanic organisms, because for these pur-
poses the two environments are very different indeed.
It is true that events and transactions in realspace and cyberspace are
identical in many ways, and can be treated identically for many purposes.
Transactions between human beings are still transactions between human
beings, whether they take place via e-mail, postcards, telegraph, or smoke
signal. Whatever it is that motivates human beings to engage in one trans-
action or another--love, hate, greed, curiosity, fear, etc.--remains the
same, on or off the Internet. A dollar is still a dollar, whether it is earned
by a seller of goods from a showroom transaction or a transaction at
www.i'vegotstuffforsale.com.
Digitalbooks.com and Analogbooks will thus have many identical
characteristics. Digitalbooks.com, like Analogbooks, provides: a forum
where buyers and sellers can exchange consideration for goods; a system
for making sure that those goods get shipped from seller to buyer after a
transaction is consummated; rules for identifying the winners and losers of
individual auctions; and means for obtaining payment for its services, ac-
counting for those payments, and transferring money to its suppliers.
Therefore, questions about how Digitalbooks.com and Analogbooks
spend the money they earn--for example, questions about the investment
strategies of book dealers, and the laws regulating those investment strate-
gies--can surely lump cyberspace and realspace earnings together.
However, it is also true that events and transactions in realspace and
cyberspace are not identical in many other ways. For example, transac-
tions in cyberspace can take place at much greater physical remove; they
are consummated by means of the movement of bits rather than atoms;
they are digitally encoded; they are unaffected by the participants' sense
of smell; they are embedded in and mediated by computer software; they
travel at the speed of light, etc.
COMPLETE CORRESPONDENCE BETWEEN THOMAS JEFFERSON AND ABIGAIL AND JOHN
ADAMS (Lester Cappon ed., Univ. North Carolina Press 1959) (May 27, 1813).
12 BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 17:1
Transactions in cyberspace involve real people in one territorial
jurisdiction either (i) transacting with real people in other territo-
rial jurisdictions or (ii) engaging in activity in one jurisdiction
that causes real-world effects in another territorial jurisdiction.
To this extent, activity in cyberspace is functionally identical to
transnational activity mediated by other means, such as mail or
telephone or smoke signal.54
Now I get it: to that extent, but only to that extent, cyberspace and real-
space transactions are identical. To the extent that our question requires us
to ask whether "real people in one territorial jurisdiction [are] transacting
with [other] real people in other territorial jurisdictions,"55
cyberspace and
realspace transactions are, for that purpose, identical. To the extent that
our question requires us to ask something else--whether, say, they involve
bits and software, or instantaneous communication with enormous num-
bers of people across the global network, etc.--they are not.
The question we need to be addressing, then, is this one: are Digital-
books.com's and Analogbooks' transactions identical--or, at least, suffi-
ciently similar--to one another with respect to the relevant principles of
international choice of law and prescriptive jurisdiction? If so, it is rea-
sonable to ignore the many differences between them; if not, it is not.
V. SCALE
To the Unexceptionalist, Digitalbooks.com's and Analogbooks' trans-
actions are identical with respect to the relevant principles of international
choice of law. The issues raised by application of these principles and pre-
scriptive jurisdiction to Digitalbooks.com's cyberspace transactions, they
say,
. . . are no more complex than the same issues in real space. They
also are no more complex or challenging than similar issues pre-
sented by increasingly prevalent real-space events such as air-
plane crashes, mass torts, multistate insurance coverage, or mul-
tinational commercial transactions, all of which form the bread
and butter of modern conflict of laws. Indeed, they are no more
complex than a simple products liability suit arising from a two-
car accident among residents of the same state, which can impli-
cate the laws of several states, including the place of the acci-
dent, the states where the car and tire manufacturers are head-
54. Against Cyberanarchy, supra note 2, at 1239-40 (emphasis added).
55. Id. at 1239.
2002] AGAINST "AGAINST CYBERANARCHY" 13
quartered, the states where the car and tires were manufactured,
and the state where the car was purchased.56
This may well be true. Digitalbooks.com's sale of an individual book
to a customer in Singapore, in isolation, is no more "complex or challeng-
ing" as a matter of international law than Analogbooks' sale of the same
book to the same customer.
To stop the analysis there, however, is to miss the forest for the trees.
Scale matters; the biologists and the engineers know this. A rose is a rose
is a rose; three roses, or three hundred roses--a garden--is a different, a
more "complex and challenging," phenomenon. Network protocols that
can manage one thousand transactions may not be able to handle one mil-
lion, or one billion. The tree is one thing; the forest, though it is nothing
more than a large number of trees, is another, more "complex and chal-
lenging," phenomenon. The movement of a single clump of dirt down a
slope is one thing; an avalanche, though it is nothing more than the move-
ment of lots of individual pieces of dirt down a slope, is another, more
"complex and challenging," event.57
The motion of a single pendulum--
which has been understood with great precision since Galileo's day--is
one thing; connect a number of pendulums together and you have a much
more "complex and challenging" phenomenon.58
You get the idea: the anthill is more "complex and challenging" than
the ant. Ignoring the anthill when making rules for the ant--ignoring the
ways in which the individual ant's behavior is embedded within a complex
system of large numbers of other individuals--would be odd indeed.59
Therefore, although Digitalbooks.com and Analogbooks each may be
doing the "same" things, the systems within which they operate are not
56. Id. at 1234 (emphasis added).
57. For an extensive discussion of the complex ways in which avalanches propagate
through sandpiles, see PER BAK, HOW NATURE WORKS chs. 3-4 (1996); STUART KAUFF-
MAN, AT HOME IN THE UNIVERSE 235-43 (1995).
58. The chaotic dynamics of coupled pendulums are discussed in BAK, supra note
57, at 39-48; JAMES GLEICK, CHAOS: MAKING A NEW SCIENCE 39-44 (Viking, 1987);
David Tritton, Chaos in the Swing of a Pendulum, in EXPLORING CHAOS: A GUIDE TO
THE NEW SCIENCE OF DISORDER 22-33 (N. Hall ed., 1991). A more technical treatment
can be found in D. D'Humieres et al., Chaotic States and Routes to Chaos in the Forced
Pendulum, 26 PHYS. REV. A 3483 (1982).
59. See Stein, supra note 15, at 1191 ("The Internet geometrically multiplies the
number of transactions that implicate more than one state. But it is a problem of quantity,
not quality.") (emphasis added); Against Cyberanarchy, supra note 2, at 1237-38 (dis-
cussing the "dramatic increase in the number and speed of transactions" in cyberspace in
the context of "a nation's incentives to regulate" and the efficacy of regulation).
14 BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 17:1
necessarily the same as a consequence of that identity. Scale matters. Dif-
ferences in degree sometimes become differences in kind; quantitative
changes can become qualitative changes.60
Rules and principles that may
be quite reasonable at one scale may become incoherent and unreasonable
at another.
Consider the following example of the ways in which the scale of ac-
tivities in cyberspace can unsettle settled legal principles. In 1995, Dennis
Erlich, a former-minister-turned-critic of the Church of Scientology, took
the texts of a number of works authored by Scientology founder L. Ron
Hubbard and, using the services of Netcom On-line Communication Ser-
vices, Inc., distributed them to the Usenet newsgroup
alt.religion.scientology. Netcom, for its part, reproduced each of those
documents dozens, perhaps hundreds or thousands, of times in the course
of transmitting Erlich's messages (and the files he included in those mes-
sages) to other Usenet sites. Hubbard's works were protected by U.S.
copyright law, and the owner of the copyright in Hubbard's works--
Religious Technology Center--appeared in Judge Ronald Whyte's court-
room in the Northern District of California to enjoin Netcom's violation of
its statutory rights.61
Judge Whyte, I think it fair to say, found this case somewhat unset-
tling. On the one hand, one would be hard-pressed to find a case in the
federal reporters where the law, and the application of the law to particular
facts, was more straightforward than this one. There was a nice, "settled"
principle of law to work with: it is an infringement of copyright to "repro-
duce" a copyrighted work of authorship "in copies" without the copyright
holder's authorization.62
It was hard to deny that Netcom had done just
that.
60. The repudiation of "Hermetic Territorialism" was a kind of "phase transition" in
the law--one orderly arrangement of the interlocking parts of a complex system gives
way, rather suddenly, to an entirely different arrangement. Think of the transformation of
liquid water into solid ice. As the temperature falls, the individual components of the
system--the hydrogen and oxygen atoms and the bonds between them--slowly change,
releasing small quanta of energy, while retaining the orderly arrangement that defines the
"liquid" state. But at the freezing point, the system abandons gradualism, changing
abruptly into a different kind of orderly arrangement of its atoms, an entirely different
configuration. We do not know, I would submit, very much at all about phase transitions
in the law--how small changes in the many interlocking doctrines, judicial decisions,
statutory provisions that underlie any particular legal domain can lead to a systemic re-
configuration of those interlocking parts.
61. Religious Tech. Ctr. v. Netcom On-line Servs., Inc., 907 F. Supp. 1361 (N.D.
Cal. 1995).
62. 17 U.S.C. § 106 (2002).
2002] AGAINST "AGAINST CYBERANARCHY" 15
It was true, of course, that Netcom did not know that it was making
copies of the copyrighted works,63
that the "copies" it made were merely
transient arrangements of bits on its disk drives,64
that it had not taken any
"affirmative action . . . other than by installing and maintaining a system
whereby software automatically forwards messages received from sub-
scribers onto the Usenet, and temporarily stores copies on its system" to
carry out its copying activities,65
and that it was only doing exactly what
thousands of other Usenet servers around the globe were doing with the
documents that Erlich had posted.66
All true, and all, under the settled law of 1995, irrelevant. The Copy-
right Act is a "strict liability statute";67
because infringement "does not
require intent or any particular state of mind,"68
whether Netcom knew of
the infringing nature of the messages it was transmitting was of no conse-
quence. Given a Ninth Circuit decision squarely on point,69
there was also
"no question,"70
that (1) the transient collections of bits on Netcom's disk
drives constituted "copies" within the meaning of the Copyright Act;71
(2)
while the infringing messages remained on Netcom's system "for at most
eleven days," they were nonetheless "sufficiently `fixed' to constitute rec-
ognizable copies under the Copyright Act";72
(3) although one could argue
that "there should still be some element of volition or causation"73
in a
copyright claim, there was no such element; and (4) the defense of "lots of
other people are doing what I'm doing, so you should not hold me liable,"
was not established in copyright law.
On the other hand, imposing liability on Netcom for these activities
somehow "does not make sense,"74
in Judge Whyte's words. The individ-
ual acts on the basis of which Netcom was charged with infringement
were "functionally identical" to any number of things we had seen before.
63. Religious Tech. Ctr., 907 F. Supp. at 1374 (noting "no question of fact as to
whether Netcom knew or should have known of Erlich's infringing activities" prior to
receipt of notification from plaintiffs).
64. Id. at 1368.
65. Id.
66. Id. at 1373.
67. Id. at 1370. See also id. at 1367 ("[K]nowledge is not an element of direct in-
fringement.").
68. Id. at 1367.
69. MAI Sys. Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993).
70. Religious Tech. Ctr., 907 F. Supp. at 1368.
71. Id.
72. Id.
73. Id. at 1370 (emphasis added).
74. Id. at 1372.
16 BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 17:1
After all, whether you are operating a photocopying machine, a CD-
burner, or a Usenet server, you are making a copy of a document, hardly
an unfamiliar activity. But the system within which those acts were em-
bedded had changed, and application of the settled law to the aggregate of
those individual actions somehow needed to change along with it.
The file storage and reproduction activities in which Netcom was en-
gaged were "necessary to having a working system for transmitting Usenet
postings to and from the Internet."75
If Netcom were deemed liable for
copyright infringement, "any storage of a copy that occurs in the process
of sending a message to the Usenet [would be] an infringement,"76
and
"every single Usenet server in the worldwide link of computers transmit-
ting Erlich's message to every other computer"77
would be liable. Carried
to its "natural extreme"78
--scaled up, we might say--application of settled
law in this case "would lead to unreasonable liability."79
It "does not
make sense," Judge Whyte wrote, "to adopt a rule that could lead to the
liability of countless parties whose role in the infringement is nothing
more than setting up and operating a system that is necessary for the func-
tioning of the Internet."80
A theory of infringement that holds every Inter-
net server worldwide liable for activities that each of them was undertak-
ing thousands of times a second was not "workable."81
Because there was
no "meaningful distinction . . . between what Netcom did and what every
other Usenet server does,"82
Judge Whyte found that Netcom "cannot be
held liable for direct infringement."83
Settled law, in other words, did not scale. So Judge Whyte unsettled it.
75. Id. at 1368.
76. Id. at 1370 (emphasis added).
77. Id. at 1369.
78. Id.
79. Id. (emphasis added).
80. Id. at 1372.
81. Id. at 1372 (emphasis added).
82. Id. at 1373.
83. Id. A different judge--a less creative, or a less courageous judge, perhaps--
would have taken the time-honored route of obfuscation, twisting the "fuzzball factors"
of the fair use doctrine to fit the facts at hand. See Frank E. Easterbrook, Cyberspace and
the Law of the Horse, 1996 U. CHI. LEGAL F. 207, 208 (1996); see also Religious Tech.
Ctr., 907 F. Supp. at 1378-81 (holding that Netcom's copying was not a "fair use" as a
matter of law).
2002] AGAINST "AGAINST CYBERANARCHY" 17
VI. EFFECTS
[A] nation's right to control events within its territory and to pro-
tect its citizens permits it to regulate the local effects of extrater-
ritorial acts.84
[P][P][[revailing concepts of territorial sovereignty permit a na-
tion to regulate the local effects of extraterritorial conduct even if
this regulation produces spillover effects in other jurisdictions[,
and] . . . such spillover effects are a commonplace consequence
of the unilateral application of any particular law to transnational
activity in our increasingly interconnected world.85
We live in a world of inter-connected and geographically complex
causes and effects; a butterfly flapping its wings in Beijing can change
weather patterns in New York, the presence of poisons in the soil in Cen-
tral Asia can affect the abundance of fish in the Gulf of Mexico, a local
currency trader, or bolt manufacturer, in Hong Kong can cause the crash
of markets, or automobiles, in Frankfurt.
Imagine for the moment something we might call an "effects map." To
construct such a map, we mark the location of every event taking place at
any specific moment, the "effects" of which will be felt in, say, Singapore.
An "effects map" would look something like the familiar nighttime satel-
lite images of "The Earth from Space" seen in Figure 1. Each point of
light on the effects map, however, would represent not an actual source of
illumination but rather the location of an event or transaction whose ef-
fects were felt by some person, or institution, in Singapore.
84. Against Cyberanarchy, supra note 2, at 1239.
85. Id. at 1212 (emphasis added).
18 BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 17:1
Figure 1
Consider an effects map depicting a moment in 1450. Inasmuch as the
effects of most activity taking place in 1450 declined rapidly with increas-
ing geographical distance, most events or transactions having an effect in
Singapore would themselves take place in, or around, Singapore. Our ef-
fects map would therefore show the territory around Singapore itself as a
dense concentration of points, a small patch of intense light, with the re-
mainder of the globe in almost total darkness.
An effects map for 1950 would undoubtedly show greater relative
"brightness" outside of Singapore's borders, reflecting changes in com-
munication and transportation technologies over the past several centuries,
and the increased numbers of border-crossing events and transactions with
widely dispersed geographical effects--"airplane crashes, mass torts,
multistate insurance coverage, or multinational commercial transac-
tions."86
But the 1950 map would, I submit, retain its geographical coherence
because the effects of most human activity in 1950, notwithstanding "mail,
the telephone, and smoke signals," remained geographically constrained.
There would still be a bright cluster of points down on the southern tip of
the Malaysian peninsula. On the basis of this patch of relative brightness
alone, we would probably be able to reconstruct those boundaries with
reasonable accuracy without too much trouble, even if Singapore's actual
political boundaries were omitted from our effects map.
However, an effects map plotting events and transactions taking place
86. Id. at 1234.
2002] AGAINST "AGAINST CYBERANARCHY" 19
today in cyberspace would look very different from this. A plot of the lo-
cation of all events and transactions taking place in cyberspace that have
an effect on persons and property in Singapore will have virtually no geo-
graphical structure at all; points of light will be wildly scattered about the
map, seemingly at random. It is a cliché, but it is true nonetheless: On the
global network all points are (virtually) equidistant from one another, irre-
spective of their location in real space, and the effects of the butterfly on
the website in Beijing can be felt as strongly in Philadelphia as in Shang-
hai. All transactions in cyberspace are potentially border-crossing, all have
geographically indeterminate effects, all resemble the "airplane crashes,
mass torts, multistate insurance coverage, and multinational commercial
transactions" of realspace.87
We would have much, much more trouble
reconstructing Singapore's actual boundaries from a map limited to cyber-
space events and transactions in 2002 than in any of our previous maps.
With respect to the "Effects Principle" at the heart of the Unexception-
alist argument--the principle that "a nation's right to control events within
its territory and to protect its citizens permits it to regulate the local effects
of extraterritorial acts"88
--the world has changed, rather dramatically.
Border-crossing events and transactions, previously at the margins of the
legal system and of sufficient rarity to be cabined off into a small corner of
the legal universe ("airplane crashes, mass torts, multistate insurance cov-
erage, or multinational commercial transactions"89
) have migrated, in cy-
berspace, to the core of that system.
A world in which virtually all events and transactions have border-
crossing effects is surely not "functionally identical" to a world in which
most do not, at least not with respect to the application of a principle that
necessarily requires consideration of the distribution of those effects. A
world in which the Effects Principle returns the result "No Substantial Ef-
fects Outside the Borders" when applied to the vast majority of events and
transactions is not "functionally identical" to a world in which application
of the same principle to the vast majority of events and transactions re-
turns the opposite result. A world in which, on occasion, bullets are fired
from one jurisdiction into another90
is not "functionally identical" to a
world in which all jurisdictions are constantly subjected to shrapnel from a
87. Id. at 1234.
88. Id. at 1239.
89. Id. at 1234.
90. See RESTATEMENT (THIRD) FOREIGN RELATIONS LAW OF THE UNITED STATES §
402 cmt. d (1987) ("The effects principle is not controversial with respect to acts such as
shooting or even sending libelous publications across a boundary.").
20 BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 17:1
thousand different directions.
To paraphrase Judge Whyte: carried to its "natural extreme,"91
applica-
tion of the (settled) Effects Principle is not "workable."92
Like Judge
Whyte, I "cannot see any meaningful distinction . . . between what [Digi-
talbooks.com does] and what every other [website does],"93
and subjecting
all websites to dozens, or perhaps hundreds, of different and possibly con-
flicting legal regimes "does not make sense."94
Like Judge Whyte, I "do[ ]
not find workable"95
a theory of prescriptive jurisdiction that would hold
Digitalbooks.com (and all website operators) responsible for complying,
simultaneously, with the laws of all jurisdictions worldwide. Like Judge
Whyte, I think that, "carried to its natural extreme,"96
the Effects Principle
leads to "unreasonable liability."97
VII. CONSENT
If governments "deriv[e] their just powers from the consent of the
governed,"98
how can Singapore, or England, legitimately exercise law-
making power over Digitalbooks.com?
The Unexceptionalists are not unduly troubled by this question, be-
cause they believe, apparently, that settled principles of international law
have already resolved it: While consent may be a prerequisite for the le-
gitimate exercise of private power, it is no longer a prerequisite for the
legitimate exercise of governmental power.99
Thus, Goldsmith writes, it is
91. Religious Tech. Ctr., 907 F. Supp. at 1369.
92. Id. at 1372.
93. Id. at 1373.
94. Id. at 1372.
95. Id.
96. Id. at 1369.
97. Id.
98. THE DECLARATION OF INDEPENDENCE, pmbl. (U.S. 1776).
99. See Stein, supra note 15, at 1176 ("Unlike the law of sovereigns, the scope of. . .
private ordering is limited to persons who have consented to the particular rules in ques-
tion.") (emphasis added); Against Cyberanarchy, supra note 2, at 1216 (concluding that
because there are many "[c]yberspace activities for which ex ante consent to a governing
legal regime is either infeasible or unenforceable," these activities "are not amenable to
private ordering") (emphasis added); id. at 1215 ("[I]t remains an open question how to
generate consent across cyberspace networks."); id. at 1216 ("[P]rivate legal ordering . . .
has the potential to resolve many, but not all, of the challenges posed by multijurisdic-
tional cyberspace activity.") (emphasis added); id. ("Consent-based legal orders are lim-
ited by a variety of national mandatory law restrictions."); see also Netanel, supra note
35, at 410, 492-93 (acknowledging the argument that application of foreign law to Digi-
talbooks.com's website "belies the liberal democratic principle of `government by con-
2002] AGAINST "AGAINST CYBERANARCHY" 21
an "uncontested assumption" of the international legal order that the "need
to demonstrate consent" to assertions of sovereign power "begins from the
premise that in its absence, national regulation of local effects is a legiti-
mate incident of sovereignty,"100
that "in the absence of consensual inter-
national solutions, prevailing concepts of territorial sovereignty permit a
nation to regulate the local effects of extraterritorial conduct."101
The Effects Principle itself, in other words, is, as a normative matter, a
source of sovereign authority, independent of the consent of the governed.
Transactions "can legitimately be regulated [by] the jurisdictions where
significant effects of the transaction are felt,"102
whether or not the parties
engaged in or affected by those transactions have consented to the applica-
tion of the laws of those jurisdictions.
Though I find this view of the relationship between the Consent Prin-
ciple and the Effects Principle normatively unappealing, this is not the
place to engage in that argument. Though I happen to believe, contra
Goldsmith et al., that the former principle should take precedence over the
latter in the event of a conflict between them, I raise the issue here merely
to suggest that scale may matter here as well, that the way we resolve this
conflict at one scale, in the conditions of realspace, does not necessarily
dictate how we should resolve it at a different scale, in cyberspace. I sug-
gest, in other words, that cyberspace is, for these purposes and with re-
spect to this question, different.
Consider an expanding balloon. Molecules at the surface of the bal-
loon are giving off prodigious amounts of heat (per molecule) as the en-
ergy from the inrushing air causes some of the bonds between the bal-
loon's atoms to shear apart (releasing small quanta of energy in the form
of heat). As the expanding surface rubs up against outside air molecules, it
causes the production and release of more heat through friction. Fortu-
nately for whomever is holding the balloon, not all molecules are explod-
ing in this way, or the balloon would quickly become too hot to handle.
The legal system is the balloon. There has been friction at the surface,
sent of the governed,'" but concluding that because consent is only one "side of the lib-
eral democracy equation," where "foreign resident conduct has substantial effect within
the legislating country and runs strongly against that country's fundamental public policy,
the prescriptive outcome of the legislating country's democratic process should prevail").
100. Against Cyberanarchy, supra note 2, at 1241 (emphasis added). That is an odd,
though telling, formulation; I would have thought that the need to demonstrate consent
"begins" with the "self-evident truth" that governments "derive their just power from the
consent of the governed." THE DECLARATION OF INDEPENDENCE pmbl. (U.S. 1776).
101. Against Cyberanarchy, supra note 2, at 1212 (emphasis added).
102. Id. at 1208 (emphasis added).
22 BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 17:1
border-crossing events and transactions--"airplane crashes, mass torts,
multistate insurance coverage, or multinational commercial transac-
tions"--where the Consent Principle and the Effects Principle collide, set-
ting off small explosions. As long as these remain on the surface--at the
margin--the system as a whole is stable. If, however, these collisions start
to occur throughout the entire volume of the balloon, no longer confined
to a narrow band at the surface, the heat generated becomes overwhelming
and the balloon explodes.
All conduct in cyberspace has geographically far-flung effects on peo-
ple and institutions around the world; on this Unexceptionalists and Ex-
ceptionalists agree. In cyberspace, there will continually be conflicts be-
tween a principle that permits sovereigns to regulate on the basis of those
effects, and a principle that sovereigns can only regulate where they have
the consent of the regulated. The "prevailing concepts of territorial sover-
eignty" evolved in a world in which these explosions between the Effects
Principle and the Principle of Consent only presented themselves at the
margins of the legal system, impacting a relatively small number of trans-
actions. A world in which all actors, and all transactions, at all times, are
subject to rules to which they have not consented, is not "functionally
identical" to that world. We have a different problem before us now.
VIII. CONCLUDING THOUGHTS
Against Cyberanarchy has been one of the most influential and oft-
cited pieces in the cyberspace law canon.103
I remain, however, unper-
103
Against Cyberanarchy has been called, among other things, a "trenchant" and "wither-
ing" critique of the regulation skeptics' claims, Netanel, supra note 35, at 402, and a "de-
cisive response to the widespread view that cyberspace is not regulable." CASS R. SUN-
STEIN, REPUBLIC.COM 204 (Princeton Univ. Press 2001). As of this writing (March,
2002) it has been cited, according to a LEXIS search (LEXIS, Lawrev Library), nearly
one hundred times. It has also become a staple of cyberspace law courses. For just a
small sample of the courses for which Professor Goldsmith's article is required reading,
see, e.g., Andrew L. Shapiro, Harvard Law School, New Media, Law, and Democracy,
Syllabus (Fall 1999 Semester) available at
http://cyber.law.harvard.edu/columbia/cgi/syllabus.cgi; University of Melbourne Law
School, Electronic Commerce Law, Reading Guide (Spring 2001 Semester) available at
http://graduate.unimelblaw.com.au/gradlaw2002.nsf/docs/4H33EB355; Susanna Fischer,
Catholic University of America, Columbus School of Law, Cyberlaw, Syllabus (Spring
2000 Semester) available at http://faculty.cua.edu/fischer/cyberlawsyl.htm; Pamela
Samuelson, University of California at Berkeley, Boalt Hall School of Law, Cyberlaw,
Syllabus (Fall 2000 Semester) available at
http://www.law.berkeley.edu/institutes/bclt/courses/fall00/cyberlaw/cybersyllabus.html;
Michael Froomkin, University of Miami School of Law, The Internet and the State (Fall
2002] AGAINST "AGAINST CYBERANARCHY" 23
suaded--an unrepentant Exceptionalist. I think it does matter that Digital-
books.com is "in cyberspace," I think that the questions raised by its con-
duct are indeed different, and more difficult, than the analogous questions
raised by its realspace counterpart, and I do not believe that we can resolve
the jurisdictional dilemmas posed by Digitalbooks' transactions by apply-
ing the "traditional legal tools" developed for similar problems in real-
space.
The problem of "jurisdiction," as generations of law students can
testify, can glaze over even the most attentive eyes. At its core, though, it
reaches fundamental questions of order and legitimacy; lest we forget, we
fought a revolution over the jurisdiction to prescribe.104
Cyberspace
should give us pause, and I am not quite ready to throw in the towel just
yet. Settled law, and received principles, are worthy of respect; but at
times they need to be reconsidered. This is one of those times.
2000 Semester) available at http://www.law.miami.edu/~froomkin/inet00/syllabus2.htm;
Darren Charters, Arts at the University of Waterloo, School of Accountancy, Course
Schedule, Cyber Law: Legal Issues in a Digital Business Age (Fall 2001 Semester) avail-
able at http://www.arts.uwaterloo.ca/ACCT/courses/acc415.
104
Among the "[f]acts . . . submitted to a candid world" to substantiate "repeated injuries
and usurpations" to which the King of England had subjected the American colonists,
was that the King had "combined with others to subject us to a jurisdiction foreign to our
constitution, and unacknowledged by our laws; giving his Assent to their Acts of pre-
tended Legislation . . . ." THE DECLARATION OF INDEPENDENCE para. 15 (U.S. 1776).