AGAINST “AGAINST CYBERANARCHY”
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).
Against Cyberanarchy, supra note 2, at 1212 (emphasis added).
Id. at 1208 (emphasis added).