See this Boston Globe commentary about the forthcoming book by Jack Goldsmith and Tim Wu. http://www.boston.com/business/technology/articles/2006/01/15/sovereignty_in_cyberspace/ (See below)
The basic thrust is that it's still the same old story, a fight for love and glory, a case of do or die. Well, time really does go by. And technological change can have important effects on the exercise of jurisdiction, and on sovereignty. These effects arise from the velocity, frequency, scope and cost of communication. Coincidentally, there is a story in today's Wall St. Journal about child pornography. Here is the headline and first couple of paragraphs, suggesting that at least on the violation side, it is by no means the same old story:
Dangerous Mix
Internet Transforms Child Porn
Into Lucrative Criminal Trade
Millions From Pedophiles;
A Landmark Prosecution
Staff Reporter of THE WALL STREET JOURNAL
January 17, 2006; Page A1
On a Saturday morning in October 2003, federal agents raided the apartment of Chicago pediatrician Howard Marc Watzman. They found two computers with more than 3,000 images of boys and girls as young as 4 years old being sexually exploited. Mr. Watzman was later sentenced to five years in prison for possessing child pornography.
The case is one of more than a thousand stemming from a broad international probe into a company called Regpay Co. in the former Soviet republic of Belarus. Regpay gathered lurid images and sold them to pedophiles around the world with the help of U.S. companies that collected credit-card payments.
Regpay offers a window into how the Internet has transformed what was once a cottage industry into a sophisticated business. The company is at the center of what U.S. law-enforcement officials call the largest Internet child-pornography investigation to date and the first to follow the international financial trail of child-porn sales. The probe has discovered the names of some 40,000 Americans who downloaded child porn and led to more than 1,400 arrests world-wide including about 330 in the U.S. At least three users arrested in the U.S. have committed suicide.
[end of excerpt from WSJ story]
On the violation side, it is not the same old story, and on the enforcement/jurisdiction side, it cannot be the same old story. Goldsmith and Wu understand this, but it is worth underlining. For more of my analysis, see my paper, Cyberspace, Sovereignty, Jurisdiction and Modernism, 5 Indiana Journal of Global Legal Studies 561 (1998). I also addressed a narrower set of issues more recently in Global Cyberterrorism, Jurisdiction, and International Organization, in The Law and Economics of Cybersecurity (Mark Grady & Francesco Parisi, eds. 2005).
Sovereignty in cyberspace
Two legal scholars puncture the myth of the borderless, lawless Internet
LESS THAN a decade ago, in his famous ''Declaration of the Independence of Cyberspace," the Internet theorist John Perry Barlow wrote, ''Governments of the Industrial World, you weary giants of flesh and steel....You have no sovereignty where we gather."
How quickly things change. In a 2000 case, a French court ruled that Yahoo, an American company, had to follow French law and make sure that no Nazi memorabilia could be purchased online in France via Yahoo auction sites. Yahoo first decried the effort as censorship, then claimed it was impossible to identify French Web surfers. Now, just as French judges demanded, Yahoo uses geographic-filtering software to make sure websites viewable in France comply with French standards. (It uses that same software to give French viewers French-language ads.)
China, another flesh-and-steel giant, has also proved itself surprisingly agile. Chinese officials use Cisco hardware to keep any website with an ''offensive" message from getting through its borders and Microsoft products to screen words like ''democracy" and ''multiparty elections" from blogs. Last fall, Chinese officials demanded that Yahoo trace the identity of a journalist who had leaked information about a Communist Party meeting to an American website. Yahoo complied, and the man is now serving a 10-year sentence.
In other words, forget all that talk about a borderless utopia and about blogs dissolving dictatorships-or at least tamp it down. When it comes to the Internet, ''The story of the next 10 years will be one of rising government power," says Tim Wu, a former marketing executive for a Silicon Valley company who now teaches law at Columbia. While some countries are committed to a fundamentally ''closed" Internet, others want it open. Since technology permits both approaches, Wu adds, ''I wouldn't be surprised if we saw an Internet version of the Cold War."
Wu is coauthor, with Harvard law professor Jack L. Goldsmith, of the iconoclastic forthcoming book, ''Who Controls the Internet?" (an excerpt of which appears this month in Legal Affairs magazine). The book, to be published in March, could be called an example of ''cyberrealism" in two ways. It grafts the hard-nosed ''realist" school of foreign policy-states and state interests are what matters-onto an analysis of what's going on with the Web today. It also tries to deflate hype by arguing that most of the supposedly unprecedented issues raised by the Internet can be handled by existing concepts in international law.
. . .
Goldsmith, an international law expert hired by Harvard in 2004, has a history of contrarianism. He has already shaken up his field with his claims that treaties never force nations to do anything that isn't already in their interest to do. In ''The Limits of International Law" (2005), cowritten with Eric A. Posner, of the University of Chicago, Goldsmith and Posner argued that there are various reasons a country might decide to end torture-if it wants to take an issue away from dissidents or to gain access to American markets. But human-rights treaties and ''international law talk" are mostly window dressing.
That book infuriated some international-affairs scholars, and the new book-which contains entertaining accounts of key episodes in Internet history as well as legal arguments-similarly flouts conventional wisdom.
For example, what do you think protects eBay customers from fraud? Is it the much-lauded ''feedback" system that lets buyers and sellers rate one another's trustworthiness-the feature the columnist and globalization guru Thomas Friedman says has made eBay a ''self-governed nation-state." Or can you shop on eBay safely for the same reason Friedman can walk New York streets without getting mugged: American laws and American cops?
In fact, Goldsmith and Wu observe, eBay's ''level of integration with and dependence on law enforcement is remarkable." The company employs hundreds of internal security experts, who mine data for suspicious patterns of activity and alert US officials when they detect scams. Indeed, eBay has found it can't operate in countries-like Russia-without strong legal systems.
The rising importance of national borders creates headaches for online stores and publishers, but Wu and Goldsmith mostly shrug at the difficulties-unlike many of their peers. Some civil libertarians find it rather ominous that foreign nations have claimed their citizens' right to file libel suits against American websites. But Wu and Goldsmith note that England's wanting to ban libelous speech (by its standards) streaming across its borders is no different than America's wanting to keep shoddy Chinese cars from crossing its. And international law already handles cases-like pollution drift-in which domestic events have effects abroad.
Wu and Goldsmith argue that a varied patchwork of national laws will be more representative of peoples' desires than any Internet-wide standard could possibly be. Filtering software makes it relatively easy for media companies to keep information out of countries that don't want it-and individual bloggers are probably unreachable by foreign lawsuits, since they have no assets in those countries. Plus, people like the bordered, geographically rooted Internet. What good is that delightful 1-800 FLOWERS ad if you live in Kenya?
That will surely sound a bit too neat to the cyberlaw theorists who think it is new that anyone with a website is now subject to the laws of hundreds of nations.
Still others will contest the book's claims that China has gotten so good at controlling the Internet that its liberating possibilities are effectively counterbalanced. ''There's no doubt the [Chinese] government is tightening controls on the Internet," says Robert Wright, author of ''Nonzero: The Logic of Human Destiny," ''and there's a reason for that: The old controls aren't working."
It's too soon, Wu responds, to know whether China will master thought control on the Internet. He thinks it might. But the authors' larger point is unassailable. National laws, national borders, and physical bodies matter a lot more online than people used to think. ''There is this surprising lasting relevance to physical coercion," Wu says. It still matters-for online writers, eBay scamsters, and Chinese dissidents alike.
Christopher Shea's column appears biweekly in Ideas. E-mail [email protected]. 
