Cyber-Parallax of Legal Modalities

Cyberspace has been compared to the Wild West[1], yet due to the inherent design of the system[2], this new frontier can be regulated.[3] “Let us speak no more of faith in man, but bind him down from mischief by the chains of cryptography”[4]. Edward Snowden’s altered version of Thomas Jefferson’s original quote (discussing the power of the constitutions ability to regulate society) highlights what Lessig is proclaiming, which is that not only does cyberspace have the potential to be regulated, but it maintains the physics that can enforce regulation greater than any set of rules have the ability to do so in real space. Lessig is correct in this proclamation, although his solution of increasing governmental-based regulation centered on the hierarchy of architecture (code) is flawed. It will be shown that for cyber regulation to be effective, it must place a higher emphasis on laws that are enforced in a method that incorporates all three modes of governance.

The regulability of cyberspace can be considered on both a macro (such as the Internet and how it can be regulated on a global scale) and micro context (such as the implementation of the architecture/coding itself to prevent crimes). This paper will mainly focus on the regulability of cyberspace on a macro context. Two distinct level of regulation must be considered: (i) the hierarchy structure of the four modalities that regulate behaviour and, (ii) the governance of these modalities on a global scale. The modality constraints that enforce regulation in cyberspace differ in a hierarchical sense from those in real space. Unlike in real space where ‘norms’ can be viewed as the overarching form of regulation, cyberspace must place an emphasis on the ‘laws’ and those whom govern them, which will in turn influence the architecture (code) that regulates behaviour. Governance of these laws has often been viewed through the lens of a zero-sum game mentality[5], yet it will be concluded that the governance must be viewed in a non-binary way, which incorporates a blending of all three modes of governance[6] in the form of a supranational institution.

The regulation of cyberspace has often been compared to that of real space.[7] In both spaces, there are two distinct levels of regulation that must be considered. First is that of Lessig’s pathetic dot theory[8], which argues that the four forces which regulate individuals are: laws, norms, architecture, and the market. An example of how these four modalities all intertwine can be shown through the government’s attempt to regulate cigarettes: the law can ban smoking (legal constraint on behaviour), regulation on the manufacturing can occur (architectural constraint), a campaign could be created against smoking (social constraints), or the tax of cigarettes can increase (market constraint).[9] Yet regulators cannot be binary[10] in this method of regulation because all four modalities influence each other[11], therefore a correct mix is most effective.[12]

 In real space, norms are of principal importance in terms of how society chooses to regulate itself. Norms are prominent on the ‘regulation hierarchy’[13] opposed to law and architecture because norms are the overarching form of values which in turn influence the laws, architecture, and market of any given state. As a state’s values evolve over time, the norms of that society change and concurrently new laws are enacted, which the courts (architecture) apply and thus (may) effect the market. For example, in 1983 only 17%[14] of the UK population felt that same-sex marriage was “not wrong at all”.[15] This figure shifted to 64% in 2016[16], and in 2013 the Marriage (Same Sex Couples) Act[17] was enacted. This shows that in real space, as our values shift and norms either become more (or less) accepted, the laws and other modalities will follow.[18]

Yet, the modalities of regulation in real space cannot be applied similarly to that of cyberspace. The cyber community has shown[19] that norms online are not as primary as they are within real space, thus the ‘net regulation’[20] must function differently than that of real space. The psychology in online communities mirrors that of any society in the sense that conflict will always arise.[21] The prominence of norms as a regulatory modality in real space are effective due to the psychology behind real world interactions, yet their effectiveness are displaced in the world of cyberspace. Reed identifies that there is a natural human tendency to view social and behavioural standards lower in cyberspace than of its real space equivalent.[22] Barlow’s concept of cyber-anarchism[23] would lead to what Mayer-Schonberger defines as Cyber-Darwinism[24] where the result of conflict within cyberspace will be determined by power[25].[26] Reed suggests an equivalence form of behavioural regulation that is consistent among both the online and offline world[27], yet the difficulty in enforcing this concept lies within the multi-jurisdictional (borderless)[28] nature of cyberspace.[29]

The different prominence structure of modalities within the ‘regulation hierarchy’ of cyberspace[30] shows that these two spaces are similar in the sense that they use the same modalities to regulate behaviour, yet the emphasis on laws and the lack of norms within cyberspace prove that they are distinct. Lessig identifies that law and architecture[31] must have increased prominence in cyberspace compared to real space,[32] and claims that cyberspace cannot be viewed through the democratic lens in which we view real space because norms in real space (as shown above) often influence us to conform or not[33], thus concluding that the lack of norms within cyberspace catapults the architecture (code) to prominence within the regulatory hierarchy.[34] It will be shown that law must be the primary regulating modality above architecture due to the power that ownership[35] over the architecture has.

The influence of architecture within cyberspace is obvious as shown by its ability to indirectly displace law.[36] Mark Stefik’s[37] protocol for protecting intellectual property online by way of “trusted systems”[38] that grant limited access to reading materials, is an example of how the architecture within cyberspace can provide more efficient regulation than the real space equivalent.[39] Hardy and Nimmer[40] use the example of online Terms and Condition contracts required by companies or sites as another example of law being regulated more efficiently in cyberspace because of the architecture. Yet, Lessig disagrees with this example because in real space contracts, the courts have the ability to inject clauses and doctrines to prevent unfairness, thus upholding public values that the cyberspace equivalent cannot.[41]

In instances where the architecture has displaced law, law often responds with regulation on the code. For example, when users began cracking the codes protecting these ‘trusted systems’, the U.S. congress enforced the Digital Millennium Copyright Act (DMCA)[42] that made unauthorized access a felony.[43] Lessig[44] defines the competition between law and architecture modalities as East and West Coast codes. East being that of governmentally enforced regulation from Washington, and West being that of architecture developed in Silicon Valley. At the time of this labelling, Lessig was unsure which was to be feared more despite his claim that “production is better left to the market (private-based regulation)”[45]. Since then, companies such as Facebook[46] and Cambridge Analytica[47] have been subject to criticism[48] for the unwarranted collection of user’s information and providing it to third parties, which have since been said to have influenced both the outcomes of the 2016 American presidential election[49] and Brexit vote[50]. Soon after, the EU enacted[51] the General Data Protection Regulation[52], which now limits how these Silicon Valley companies handle their user’s personal information,[53] thus evidencing law as the primary regulatory modality, opposed to architecture that is often subject to non-transparent institutions/governments[54].

Both law and architecture have the ability to effect how cyberspace is regulated. Although Lessig’s claim that “code is law” may be accurate - because the architecture is unconcerned with morality - it must not be considered as efficient justice.[55] Therefore, to maintain democratic values, the primary modality of regulation within cyberspace must be transparent. Johnson and Post’s scepticism identifies that those who write the code will determine what is acceptable within cyberspace.[56] They argue that if these ‘engineers’[57] of the architecture have this power, they must answer to some version of a collective morality to uphold the rule of law. Therefore law is the hierarchical form of regulation as it assimilates current public values and moral considerations.

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The second level of regulation to be considered is the governance[58] of the modalities. The three modes of governance are: (i) Cyber-Separatists, (ii) Cyber-Traditionalists, and (iii) Cyber-Internationalists discourse. Since the design of the Internet is one of anonymity, ubiquity, and geographical instability, some academics argue if cyberspace should be treated distinct from that of real space. Cyber-Libertarians/Separatists[59] such as Johnson and Post[60] view cyberspace as “elsewhere”, thus suggesting it requires a different set of laws and institutions (than those within real space) to regulate it. Lessig concurs with this view although he states that despite the need for new laws to emerge due to the inability for laws in real space (such as that of property, torts etc.)[61] to be applicable, the two spaces should not be considered completely separate.[62] The ruling in R v. Sheppard & Anor[63] supports this as it indicates that the prosecution of cyber crimes are not to be treated distinctly from the real space equivalents. Cyber-Separatist discourse argues that self-regulation by individuals is an efficient method of governance, but only if the online communities[64] are created in accordance with national laws as the anonymity within these groups lack transparency.[65] For example, self-regulatory bodies such as the International Watch Foundation (IWO) can be effective[66], but without a more stable base of governance overseeing these self-regulatory individuals, it would be “akin to opening up the Pandora’s box of governance”[67]. Additionally, self-regulation from privatised institutions has proven to lack in transparency (as discussed above).[68] 

Lessig calls for increased governmental regulation on the architecture. Therefore to provide transparency, State-Based Traditionalist discourse[69] argues for increased democratic legitimization through more governmental based regulation[70], which in turn provides for a form of regulation which acts in the public (not private) interest.[71] Yet this solution may only venture as far as a state’s laws allow for and can lead to a lack of transparency. Lessig states that regulability from the state maintains its transparency because if those being regulated are unsatisfied with it they may replace the regulatory body via elections.[72] Although this assertion is only effective if the nation state is democratic, and void of any democratic deficit or corruption.[73] Lessig proceeds to explain how law through the Administrative Procedure Act[74], requires transparency, not architecture. In Rust v. Sullivan[75] the Reagan Administration used the architecture (wording) of governmental regulations[76] to cease funding to family planning services related to abortion, thus exhibiting how the “government can hide its choices in the code… and avoid the political consequences of its choices”[77]. Lessig’s state-based governance proposals were neglected as President Clinton’s following policies on the matter were focused on mainly private sector leadership[78] in the area of cyberspace, as did the EU’s framework[79].[80] Governmental regulation did increase with the U.S. Patriot Act[81], which enabled the U.S. government to prosecute what it perceived to be threats to “interstate or foreign commerce or communication of the United States”.[82] Although Edward Snowden’s disclosures of the PRISM surveillance program that was acting under similar legislation such as the FISA Amendments Act[83] went relatively unbeknownst to the American public, thus highlighting the difficulty that regulating cyberspace in accordance with governmental transparency holds for even the utmost democratically constituted countries.[84]

Not only is transparency within a singular government difficulty to accomplish, but also the design of cyberspace is borderless, thus making its multi-jurisdictionality subject to various cultures and laws.[85] Goldsmith[86] identifies that the practicality of enforcing different (and potentially contradicting) laws to various nation states would have a ‘negative spill over effect’.[87] This in turn makes regulation by individual governmental bodies difficult as users within cyberspace hold the ability to act across multiple jurisdictions. In U.S. v. Elcomsoft and Dimitry Skylarov[88], a Russian copyright firm was found to be acting within its national laws, yet it was in breach of the DMCA[89]. The court found that since the events occurred within the borders where the national law does not permit such acts, the defense motion was denied.[90] Geist indicates that these jurisdictional issues are not anomalies.[91] Therefore the architecture of cyberspace makes governmental regulation on a geographical and jurisdictional basis inefficient.[92]

Akdeniz, Walker, and Wall identify two concerns for Lessig’s proposal of increased governmental regulation focused on architecture. First, creating an ‘invisible hand’ would reduce the appeal of freedom and efficacy which cyberspace provides[93], especially for those whom do not agree with the institutional values of those governing (such as citizens in countries with different norms). Second, the form of organisation that will govern must adhere to these principals of freedom and efficacy by avoiding authoritarian governance.[94] State-based traditionalist discourse[95] governance fails because (i) those that wish to avoid jurisdictional regulation will simply move to one that is unregulated[96] and (ii) most governance would be of U.S. bias[97]. The authoritarian based governance in cyberspace from the U.S. in the past is evident from not only the events surrounding individual privacy and data protection[98] but also through its control of non-profit regulatory institutions such as the International Corporation for Assigned Names and Number (ICANN) .[99]  The U.S. controls shifted in 2016 when ICANN was granted complete control over the Internet Assigned Number Authority (IANA)[100], resulting in the U.S. National Telecommunications Information Administration (NTIA)[101] reduction in decision-making powers. This shift has resulted in ICANN being the most evident candidate as the institutional body that efficient governance requires.

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The lack of overall ownership of a bordered Internet makes regulation uncertain.[102] Cyber-Internationalist discourse is promising as it incorporates the multi-jurisdictional issue, although Peritt and Schonberger identify that the democratic deficit within many countries could lead to lack of legitimacy.[103] Therefore to satisfy the complex nature of regulating cyberspace, a non-binary approach to governance is required. This can be accomplished by using a mix of the three modes of governance[104] in the form of the Internationalist discourse mode setting the ceiling (maximum) and the floor (minimum)[105] of what is acceptable, and then the traditionalist state-based mode applying the regulation in accordance with their national values. For these three modes of governance to be applied efficiently in accordance with the four modalities of regulation, a supranational institution must assume the role. ICANN is the salient candidate. ICANN’s internationally democratic advisory committee[106] that consists of representatives from 111 states, and its separation from U.S. governmental control would ensure transparency. Schauer’s ‘conflict-of-laws’[107] issue is bound to arise. Therefore in practice the principle determined in Miller v. California[108] is pertinent, as the conflicting community’s values will be addressed on a geographical basis as long as it is in accordance with the rapport determined by the supranational institution.[109] EU Directives are an example of this process in the sense that they provide agreed upon laws/standards that can be applicable to multiple member states.[110] ICANN’s trans-national practicality could manifest as a consistent body that convenes such as European Parliament[111] or more incidentally such as the UN Security Council[112]. However its manifestation evolves, democratic governance[113] should prevail with the adherence to international law with the architecture constructed consequently. ICANN’s current role has cause to blend all three modes of governance, thus satisfying the complexity of cyberspace issues into a form of governance that has the ability to regulate the law and architecture on a global level.[114]  

In conclusion, the regulating of cyberspace is complex due to its psychological and borderless elements. The regulability of cyberspace relies on an altered view of the four modalities that emphasises law over norms because the psychological and jurisdictional differences in cyberspace compared to real space lower the standard of norms and increase the importance of a morally based set of rules. Lessig and Snowdens’ proclamation of using cryptography to regulate human behaviour in cyberspace is accurate, but the prominence of law on the ‘regulatory hierarchy’ must take precedent over architecture to avoid immoral cyber-anarchism that favours the most architecturally adroit. Governance of this method of regulation in any single ‘mode’ will result in a lack of transparency and/or enforceability that fails to conform to global values because of legal and culture divergence. Therefore governance must be non-binary and blend all three forms of governance and take the form a diversely membered supranational institution.

[1] See Chappell. B, “Obama: Cyberspace Is The New 'Wild West'” (NPR February 13, 2015) from: https://www.npr.org/sections/thetwo-way/2015/02/13/385960693/obama-to-urge-companies-to-share-data-on-cyber-threats accessed December 20, 2018; Wallace, J., and Mangan, M., Sex, Laws and Cyberspace  (Henry Holt, New York, 1996) p.xiv.

[2] Lessig. L, Code and Other Laws of Cyberspace (Basic Books, New York, 1999).

[3] Chandler. A, “The changing definition and image of hackers in popular discourse” (1996) 24 International Journal of the Sociology of Law, 229.

[4] School HL, “Lawrence Lessig Interviews Edward Snowden” (YouTube October 23, 2014) from: https://www.youtube.com/watch?v=o_Sr96TFQQE accessed December 10, 2018. See also: Greenwald. G, No Place to Hide: Edward Snowden, the NSA, and the U.S. Surveillance State (Picador 2015).

[5] See Lessig. L, “The Law of the Horse: What Cyberlaw Might Teach” (1999) 113 Harvard Law Review 501-549; Lessig. L, “The Zone of Cyberspace” (1996) 48 Stanford Law Review 1403; Mayer-Schonberger. V, “The Shape of Governance: Analyzing the World of Internet Regulation” (2003) Virginia Journal of International Law 43, 6.

[6] Mayer-Schonberger. V, “The Shape of Governance: Analyzing the World of Internet Regulation” (2003) Virginia Journal of International Law 43.

[7] See mainly: Lessig. L, “The Law of the Horse: What Cyberlaw Might Teach” (1999) 113 Harvard Law Review 501-549; Johnson. D and Post. D, “Law and Borders-The Rise of Law in Cyberspace” (1996). 48 Stanford Law Review. 1367, 1387-91.

[8] Lessig. L, Code and Other Laws of Cyberspace (Basic Books, New York, 1999).

[9] Lessig. L, “The Law of the Horse: What Cyberlaw Might Teach” (1999) 113 Harvard Law Review 512.

[10] Lessig. L, “The Law of the Horse: What Cyberlaw Might Teach” (1999) 113 Harvard Law Review 512.

[11] Lessig. L, “The Law of the Horse: What Cyberlaw Might Teach” (1999) 113 Harvard Law Review 511.

[12] This non-binary method of regulation will also be applied below in the context of how the methods of regulation are to be governed.

[13] See Figure 1. This term will be used to show how the different modalities are applied in real space and cyberspace.

[14] D'Urso RS& J, “Gay Rights 50 Years on: 10 Ways in Which the UK Has Changed” (BBC July 29, 2017) from: https://www.bbc.co.uk/news/uk-40743946 accessed January 4, 2019

[15] D'Urso RS& J, “Gay Rights 50 Years on: 10 Ways in Which the UK Has Changed” (BBC July 29, 2017) from: https://www.bbc.co.uk/news/uk-40743946 accessed January 4, 2019

[16] D'Urso RS& J, “Gay Rights 50 Years on: 10 Ways in Which the UK Has Changed” (BBC July 29, 2017) from: https://www.bbc.co.uk/news/uk-40743946 accessed January 4, 2019

[17] Marriage (Same Sex Couples) Act 2013.

[18] Canada’s Cannabis Act 2018, which has nationally legalized marijuana due to the country’s increased use. The federal government has since estimated this new legislation will result in $400m a year in tax revenues. See “Canada Becomes Second Country to Legalise Recreational Cannabis” (BBC News October 17, 2018) from: https://www.bbc.com/news/world-us-canada-45806255 accessed January 10, 2019.

[19] See Basu. S, 'Stalking the Stranger in Web 2.0: A Contemporary Regulatory Analysis', (2012) 3 European Journal of Law and Technology 2, 1-36; Reed. C, “Why Must You Be Mean to Me? - Crime, Punishment and Online Personality” [2009] SSRN Electronic Journal available: http://ssrn.com/abstract=1305125.

[20] Lessig. L, “The Law of the Horse: What Cyberlaw Might Teach” (1999) 113 Harvard Law Review, 508.

[21] Mayer-Schonberger. V, “The Shape of Governance: Analyzing the World of Internet Regulation” (2003) Virginia Journal of International Law 43.

[22] Reed. C, “Online and Offline Equivalence: Aspiration and Achievement” (2010) International Journal of Law and Information Technology 18; Reed C, “Why Must You Be Mean to Me? - Crime, Punishment and Online Personality” [2009] SSRN Electronic Journal available: http://ssrn.com/abstract=1305125.

[23] Barlow. J.P, A Declaration of the Independence of Cyberspace (1996). This concept is of the idea that if there is no formal institution that governs cyberspace than it is essentially a free-for-all.

[24] Mayer-Schonberger. V, “The Shape of Governance: Analyzing the World of Internet Regulation” (2003) Virginia Journal of International Law 43, 74.

[25] Power in the context of cyberspace will be those whom hold the ability to create and break the code (ex. hackers, government intelligence agencies).

[26] Hobbes. T, Leviathan 18 (first published 1651).

[27] Reed, C “Online and Offline Equivalence: Aspiration and Achievement” (2010) International Journal of Law and Information Technology 18.

[28] See Para 12.

[29] Lessig. L, “The Law of the Horse: What Cyberlaw Might Teach” (1999) 113 Harvard Law Review 506; this concept will be explored further below.

[30] See Figure 2.

[31] The modality of architecture in the context of cyberspace can be considered (for the purposes of this essay) as synonyms with ‘code’, that is the technology, which determines how the program, data, etc. will be run. See Lessig L, Code Version 2.0 (Basic Books 2007).

[32] Lessig. L, Code Version 2.0 (Basic Books 2007).

[33] Lessig. L, “The Zone of Cyberspace” (1996) 48 Stanford Law Review 1408; an example of these ‘trusted systems’ are legal databases such as LexisNexis and others.

[34] Lessig. L, “The Zone of Cyberspace” (1996) 48 Stanford Law Review 1408

[35] Lessig states, “how the code is owned will determine success of regulation” in Lessig. L, “The Zone of Cyberspace” (1996) 48 Stanford Law Review 1408, 503

[36] Lessig. L, “The Zone of Cyberspace” (1996) 48 Stanford Law Review 1408, 503

[37] Stefik. M, ‘Letting Loose the Light: Igniting Commerce in Electronic Publication’, in Internet Dreams: Archetypes, Myths, and Metaphors (MIT Press, 1996).

[38] Lessig. L, “The Zone of Cyberspace” (1996) 48 Stanford Law Review 1408, 529.

[39] In real space, intellectual property such as books, magazines, etc. can easily be copied or read as many times as one or multiple people wish.

[40] Trotter Hardy, “Property (and Copyright) in Cyberspace” (1996) University of Chicago Legal Forum 1, 237; Nimmer. R, “Electronic Contracting: Legal Issues, 14 J. Marshall J. Computer & Info. L. 211” (1996) 14 John Marshall Journal of Information Technology & Privacy Law 2, 220.

[41] Lessig. L, “The Zone of Cyberspace” (1996) 48 Stanford Law Review 1408, 532.

[42] Digital Millennium Copyright Act 1998. This Act was implemented in accordance with two World Intellectual Property Organization (WIPO) treaties. The influence of organizations such as WIPO will be discussed below.

[43] Lessig. L, “The Zone of Cyberspace” (1996) 48 Stanford Law Review 1408.

[44] Lessig. L, “The Law of the Horse: What Cyberlaw Might Teach” (1999) 113 Harvard Law Review, 533.

[45] Lessig. L, “The Law of the Horse: What Cyberlaw Might Teach” (1999) 113 Harvard Law Review, 533. Emphasis added.

[46] See www.facebook.com

[47] See www.cambridgeanalytica.org

[48] In April 2018, Facebook CEO Mark Zuckerberg was subject to two days of congressional hearings after ‘revelations that political consulting firm Cambridge Analytica had improperly harvested 87 million users’ and provided this information to third parties.

[49] Wichter. Z, “2 Days, 10 Hours, 600 Questions: What Happened When Mark Zuckerberg Went to Washington” (The New York Times April 12, 2018) from: https://www.nytimes.com/2018/04/12/technology/mark-zuckerberg-testimony.html accessed January 7, 2019.

[50] Scott. M, “Cambridge Analytica Helped 'Cheat' Brexit Vote and US Election, Claims Whistleblower” (POLITICO March 29, 2018) from: https://www.politico.eu/article/cambridge-analytica-chris-wylie-brexit-trump-britain-data-protection-privacy-facebook/ accessed January 17, 2019.

[51] The United States congress has since considered making similar changes to their data protection and privacy laws. See Singer. N, “A Tough Task for Facebook: European-Type Privacy for All” (The New York Times April 8, 2018) from: https://www.nytimes.com/2018/04/08/technology/a-tough-task-for-facebook-european-type-privacy-for-all.html?module=inline accessed January 17, 2019

[52] Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119, 4.5.2016, p. 1). Retrieved from: https://ec.europa.eu/info/law/law-topic/data-protection/reform/what-does-general-data-protection-regulation-gdpr-govern_en

[53] Ibid supra note 54.

[54] See Para 8 for issues regarding governmental transparency in relation to the regulation of cyberspace.

[55] Lessig. L, Code Version 2.0 (Basic Books 2007).

[56] D. Johnson and D. Post, “Law and Borders-The Rise of Law in Cyberspace” (1996). 48 Stanford Law Review. 1387-91.

[57] D. Johnson and D. Post, “Law and Borders-The Rise of Law in Cyberspace” (1996). 48 Stanford Law Review. 1387-91.

[58] ‘Governed’ or ‘Governance’ (for the purposes of this paper) will be considered to be the act or organization which will oversee the means by which cyberspace is regulated in accordance with the ‘regulatory hierarchy’.  

[59] Cyber-libertarians also view that state control of the Internet should remain limited. Cyber-paternalists (like Lessig) view that increased state control is the solution to effective cyber regulation. See Para 11.

[60] D. Johnson and D. Post, “Law and Borders-The Rise of Law in Cyberspace” (1996). 48 Stanford Law Review. 1387-91.

[61] Lessig. L, “The Law of the Horse: What Cyberlaw Might Teach” (1999) 113 Harvard Law Review 502.

[62] Lessig. L, “The Zone of Cyberspace” (1996) 48 Stanford Law Review 1403.

[63] R v. Sheppard & Annor (2010) EWCA Crim 65

[64] Such as the Internet Watch Foundation.

[65] Mayer-Schonberger. V, “The Shape of Governance: Analyzing the World of Internet Regulation” (2003) Virginia Journal of International Law 43, 23.

[66] See McIntyre. TJ, “IT Law in Ireland” (IT Law in Ireland June 18, 2009) from: http://www.tjmcintyre.com/2009/06/digital-britain-and-internet-watch.html accessed January 5, 2019

[67] McIntyre. TJ, “IT Law in Ireland” (IT Law in Ireland June 18, 2009) from: http://www.tjmcintyre.com/2009/06/digital-britain-and-internet-watch.html accessed January 5, 2019; Lemley. M, “The Law and Economics of Internet Norms” (1998) 73 Chicago-Kent Law Review 4.

[68] See Para 6.

[69] Mayer-Schonberger. V, “The Shape of Governance: Analyzing the World of Internet Regulation” (2003) Virginia Journal of International Law 43, 8.

[70] Mayer-Schonberger. V, “The Shape of Governance: Analyzing the World of Internet Regulation” (2003) Virginia Journal of International Law 43, 8.

[71] Castells. M, The Information Age (Blackwell, London, 1997) 354.

[72] Lessig. L, “The Law of the Horse: What Cyberlaw Might Teach” (1999) 113 Harvard Law Review, 542.

[73]  Mill JS and McCallum RB, On Liberty and Considerations on Representative Government (B Blackwell 1948) Ch. 7

[74]1946. See Administrative Procedure Act, 5 U.S.C. §§ 551—559 (2012), available: http://www.archives.gov/federal-register/laws/administrative-procedure; Schub R, “Transparency, Public Consultation Practices and Government...” from: http://www.europarl.europa.eu/RegData/etudes/IDAN/2015/536482/IPOL_IDA(2015)536482_EN.pdf accessed January 5, 2019

[75] 500 U.S. I73 (1991).

[76] See s. 1008 of Title X of the Public Health Services Act 1948

[77] Lessig. L, “The Law of the Horse: What Cyberlaw Might Teach” (1999) 113 Harvard Law Review 542.

[78] Framework for Global Economic Commerce (1991).

[79] Information Society and Media (European Commission, “European Ministerial Conference: Global Information Networks: Realising the Potential, Bonn, 6 to 8 July 1997: Declarations.” (EU Law and Publications July 9, 1998) from: https://publications.europa.eu/en/publication-detail/-/publication/0d76a85c-e66a-41af-91c2-28cd29a85094 accessed January 5, 2019

[80] Geist. M, “Cyberlaw 2.0” (2003) 44 Boston College Law Review, 328.

[81] Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 ("USA PATRIOT Act"), Pub. L. No. 107-56, 115 Stat. 272, available: https://www.justice.gov/archive/ll/highlights.htm

[82]. Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 ("USA PATRIOT Act"), Pub. L. No. 107-56, 115 Stat. 272, available: https://www.justice.gov/archive/ll/highlights.htm; § 814(d) (1) (amending 18 U.S.C. § 1030(e) (2) (8)); Geist. M, “Cyberlaw 2.0” (2003) 44 Boston College Law Review.

[83] Foreign Intelligence Surveillance Amendments Act 2008, s. 702; see also Protect America Act 2007, available: https://www.justice.gov/archive/ll/docs/text-of-paa.pdf

[84] Chappell. B, “NSA Reportedly Mines Servers Of U.S. Internet Firms For Data” (NPR June 6, 2013) from: https://www.npr.org/sections/thetwo-way/2013/06/06/189321612/nsa-reportedly-mines-servers-of-u-s-internet-firms-for-data accessed December 19, 2018.

[85] Walker. C, Wall. D, Akdeniz. Y, The Internet, law, and Society (Addison Wesley Longman 2000), 3-25.

[86] Goldsmith. J, “Against Cyberanarchy” (1998) 65 Chicago Law Review 1200.

[87] Goldsmith. J, “Against Cyberanarchy” (1998) 65 Chicago Law Review 1200.

[88] 203 F Supp 2d 1111.

[89] Digital Millennium Copyright Act 1998, s. 1201(b)(1)(A)&(C).

[90] Geist. M, “Cyberlaw 2.0” (2003) 44 Boston College Law Review, 338.

[91] Geist. M, “Cyberlaw 2.0” (2003) 44 Boston College Law Review, 338.

[92] Lessig. L, “The Zone of Cyberspace” (1996) 48 Stanford Law Review 1406; D. Johnson and D. Post, “Law and Borders-The Rise of Law in Cyberspace” (1996). 48 Stanford Law Review. 1387-91.

[93] Lessig. L, “The Zone of Cyberspace” (1996) 48 Stanford Law Review 1406, 5.

[94] Lessig. L, “The Zone of Cyberspace” (1996) 48 Stanford Law Review 1406, 6.

[95] Mayer-Schonberger. V, “The Shape of Governance: Analyzing the World of Internet Regulation” (2003) Virginia Journal of International Law 43.

[96] Reidenberg. J, Governing Networks and Rule-Making in Cyberspace in Borders in Cyberspace, 84,85,89 (Brian Kahin & Charles Nesson eds., 1997).

[97] Walker. C, Wall. D, Akdeniz. Y, The Internet, law, and Society (Addison Wesley Longman 2000), 6.

[98] See Para 11

[99] Internet Corporation for Assigned Names and Numbers. See https://www.icann.org/.

[100] Internet Assigned Number Authority. See https://www.iana.org/

[101] National Telecommunications & Information Administration. See https://www.ntia.doc.gov/

[102] Walker. C, Wall. D, Akdeniz. Y, The Internet, law, and Society (Addison Wesley Longman 2000), 3-25.

[103] Mayer-Schonberger. V, “The Shape of Governance: Analyzing the World of Internet Regulation” (2003) Virginia Journal of International Law 43, 28; Perritt. H, “Internet as a Threat to Sovereignty? Thoughts on the Internet’s Role in Strengthening Nation and Global Governance” (1998) 5 Indiana Journal of Global Legal Studies 430.

[104] Mayer-Schonberger. V, “The Shape of Governance: Analyzing the World of Internet Regulation” (2003) Virginia Journal of International Law 43, 37.

[105] Mayer-Schonberger. V, “The Shape of Governance: Analyzing the World of Internet Regulation” (2003) Virginia Journal of International Law 43, 37, 48.

[106] “Governmental Advisory Committee” (Governmental Advisory Committee Official Web Presence) from: https://gac.icann.org/ accessed January 19, 2019.

[107] Schauer. F, The Law of Obscenity (Bureau of National Affairs 1976) 127.

[108] 413 U.S. 15 (1973).

[109] Geist. M, “Cyberlaw 2.0” (2003) 44 Boston College Law Review, 338; Lessig. L, “The Zone of Cyberspace” (1996) 48 Stanford Law Review 1406; D. Johnson and D. Post, “Law and Borders-The Rise of Law in Cyberspace” (1996). 48 Stanford Law Review. 1387-91.

[110] Mayer-Schonberger. V, “The Shape of Governance: Analyzing the World of Internet Regulation” (2003) Virginia Journal of International Law 43, 48.

[111] See http://europarl.europa.eu/portal/en

[112] See https://www.un.org/securitycouncil/

[113] Hunter. D, “ICANN and the Concept of Democratic Deficit” [2003] SSRN Electronic Journal

[114] Regulatory Triangle from: Mayer-Schonberger. V, “The Shape of Governance: Analyzing the World of Internet Regulation” (2003) Virginia Journal of International Law 43, 40.