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2002]

AGAINST “AGAINST CYBERANARCHY”

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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.”).

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