Module 1 – Cyber Jurisprudence

1. Cyberspace

Cyberspace is a global domain within the information environment whose distinctive and unique
character is framed using electronics and the electromagnetic spectrum to create, store, modify,
exchange, and exploit information via interdependent and interconnected networks using
information-communication technologies. (Keuhl 2009)

It is the collection of computing devices connected by networks in which electronic information

is stored and utilised, and communication takes place. (Clark MIT – 2010)

Internet Exceptionalism: internet free from state control- no border and boundary

Cyber Exceptionalism: borderless- complete control and freedom to do whatever you want

2. Regulatory Theories1

a. Open-Source Movement (1980s – 1st Wave of Internet Exceptionalism)

• Advocated the development and common use of communication networks, which
strengthened the belief of the technical community in an inclusive and democratic global
network. (Advocating software and hardware available to all like Wikipedia)
• Led to the defence of full freedom on the internet and generated debates about the regulation
of cyberspace in the 1990s.
b. Cyber-libertarianism
• John Perry Barlow was the first to use the term “cyberspace” for the “global electronic
social space.”
• He published the Internet Declaration of Independence claiming cyberspace as a place
where “Governments of the Industrial World have no moral right to rule us nor do you
possess any methods of enforcement we have true reason to fear. Cyberspace does not lie
within your borders”
c. 1st Interpretation of Cyber Libertarianism

1[Link]
(Ma’am’s PPT follows the structure of this blog)
 • Barlow’s ideology also caught the attention of the legal community, prompting academicians
David Johnson and David Post to publish the article “Law and Borders – The Rise of
Law and Cyberspace”
• They stated that traditional state sovereignties, defined by territorial boundaries, would not
function appropriately in cyberspace.
• Placed cyberspace as a distinct place from the real world, with its sovereignty and legal
jurisdiction, regulated by norms defined by the digital community.
d. Cyber Paternalism
• Formed as a response to cyber-libertarianism. They considered cyber-libertarians views to be
simplistic.
• More regulated and controlled approach because they believed that there would be cyber
anarchy if there is absolutely no regulation.
• Divided into 2 schools:
I. Cyber Realism (Internet Fallacy School)
▪ Stated that the belief that cyber space can function without control is a fallacy
▪ Cyberspace can and should be regulated based on the traditional perspective of
jurisdiction and law [Jack Goldsmith and Chris Reed]
II. Techno-Determinism (Berkman School)
▪ Internet exceptionalism stems not from the impossibility of regulating cyberspace, but
from the fact that its enforcement tools do not exactly correspond to the classical
regulatory modalities
▪ Basically, internet and tech has unique nature and thus, regulation becomes difficult.
Thus, special laws are needed for this.
▪ There must be better tools, better mechanism, and better regulations to achieve
protection. [Joel Reidenberg and Lex Informatica]
e. Lawrence Lessig’s Modalities of Regulation
• Considered the most prominent cyber-paternalist scholar
• Argued that cyberspace is not to be regulated. Instead, it is individual behaviour on cyberspace
that is to be regulated.
• For Lessig, cyberspace requires re-reading traditional regulatory performance since it needs to
recognize the regulatory role of code (“Code is Law”). If you can regulate code, you can
regulate the internet.
 • Main argument: Code is a form of physical architecture that can control online
communication, or behaviours, just as effectively as the legal rules of nation states. The hidden
ways in which code regulates online behaviours often goes unnoticed, but in every piece of
software, in every algorithm, there are hidden assumptions about how the world works or
should work.
• Internet derives its characteristics from its choices regarding these 4 Modalities: (i)
Architecture (ii) Markets (iii) Law (iv) Norms
• Theory of Pathetic Dot - The Architecture exerts regulatory effects on cyberspace, acting
together with Markets, Law, and Norms, towards a pathetic dot (the regulatee).

• Controlling the Code (Architecture) that works together with the other three modalities,
regulate the individual behaviour, which in turn leads to the regulation of the cyberspace.
f. Post-2000s
• Scholars of this era merge the two previous generations because, like libertarians, they advocate
there is something unique about the internet, considering it enables different connections and
it generates creativity and potential for political, economic, and cultural transformations.
• On the other hand, similarly to some paternalists, they also recognize the role of internet
technical architecture and private sector power.
g. Network Communitarianism (End of 2000s and beginning of 2010s)
• Propounded by Andrew Murray
• He noted that cyberspace is a place of communication and discourse, besides being composed
of geography and structure.
• Criticized the idea of the four regulatory modalities influencing a pathetic dot (Lessig’s model)
• Advocated the construction of a system endowed with dynamism and communicational
capacity, escaping from the mechanical analysis.
• This presents a more dynamic model of cyber-regulation, the so-called Network
Communitarianism.
• It does not represent an isolated individual in a fixed environment, but explains the dynamics
of communication within the community that inhabits the environment.
• Thus, the regulatee appears as a member of the dots community that grants or removes
legitimacy to external regulatory actions. In this way, Murray exchanges the pathetic dot for a
community or matrix of points that share ideas, beliefs, ideals, and opinions.

• Therefore, the key is to recognize that instead of counting on the effectiveness of direct legal-
regulatory controls, it is necessary to develop a hybrid system, where legal restrictions are part
of the regulatory network or matrix.