BERKELEY TECHNOLOGY LAW JOURNAL
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)).
Against Cyberanarchy, supra note 2, at 1208.
Id. at 1239.
Id. at 1208.
Id. at 1230.
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