Post-modern Concept of Sovereignty in the light of cyberspace regulation

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The problem many of us experience with sovereignty is not just a sophomoric idealism that contemplates "world federalism", but is more complex, more respectable, and more durable. There are two different meanings of sovereignty. From my perspective, they are diametrically opposed. Sovereignty is often objectionable when it is used as a conclusory epithet in discussions of the power of the state. I will refer to this meaning of sovereignty as "conclusory sovereignty." This is the type of sovereignty about which Professor Louis Henkin is correct to exclaim, "away with the 'S' word. ' Its natural law assumption of fixed, complete, and unassailable sovereignty has never been correct and is not correct today. It is surprising that this type of sovereignty has become a tenet of realist political scientists, and that it is often accepted also by positivist international lawyers. It is surprising because realists and positivists purport to be empiricists, and only a self-deceptive empiricist could find that conclusory sovereignty comports with the facts of our world. Realists and positivists would be embarrassed to find that it is they who are guilty of normative thinking, arguing that states "should" be accorded plenary sovereignty.' Nor are the idealists and natural law theorists correct in the normative assertion that authority "should" be transferred to a world federalist government. Rather, the correct allocation of authority is dynamic, complex, and contingent. However, as will be seen below, there is a place in the world for sovereignty, and for the state.

Introduction

Cyberspace is best viewed as a bulge in the technical production frontier. Our institutions, including contingent sovereignty, determine the extent to which we reach the limits of the technical production frontier. In addition, and more saliently, changes in the technical production frontier, especially in communications, modify the structural production frontier. They do so by modifying the transaction costs of different institutional structures. This means that not only does cyberspace facilitate private activity, but, as Perritt points out, it also facilitates government activity. Not only does technology strengthen the tools of government, but it can also strengthen the legitimacy of government through heightened transparency and democracy. Furthermore, these technological changes affect the costs of achieving our preferences. Change in the cost of achieving preferences will differentially affect the extent to which we may satisfy some preferences and, more importantly, will affect the means used to achieve our preferences. This includes the question of whether we use the market or the state to achieve certain goals. We cannot predict the answer to this question simply by referring to cyberspace. Rather, the answer to the market versus state question is dependent upon the confluence of a complex set of variables. Even if all variables other than the development of cyberspace were held constant, the development of cyberspace itself includes several variables, perhaps contradicting one another," which must be evaluated separately before being aggregated to form an answer.

Elements

1. State Sovereignty and Individual Sovereignty

The perspective adopted here is "methodological individualism", aligned with cosmopolitanism, or humanism, to make the individual's aspirations, as expressed initially by the individual, the touchstone of positive and normative theory. Thus, the sovereignty of the state is derived from, and dependent upon, its utility to express the "sovereignty" of the individual. How does cyberspace affect the relationship between individual sovereignty and state sovereignty? Certainly bidirectional communications are made more efficient, and therefore more frequent. Individuals may provide more information regarding their preferences to government through referenda, surveys, or market-mimicking mechanisms such as electronic highway toll collection. This information revelation function may serve to legitimate government action: it can be more strongly rooted in citizen preferences. On the other hand, as Perritt quotes Walter Wriston, information technology "enables the citizen to watch Big Brother." The citizen can keep better track of government and thereby provide enhanced input as to the citizen's preferences. This revolution in availability of information risks overwhelming the citizen: representative democracy has roots in efficiency. When Perritt argues that cyberspace strengthens sovereignty from the perspective of liberal theory, 6 he must mean that cyberspace strengthens the expression of individual preferences in the sense described here. Finally, it does not appear particularly useful to speak, as Reidenberg does, of the "sovereignty" of internet network systems."7 While the substantive point regarding the relative capacity and need for autonomy of such networks may, like the similar point regarding private corporations, be accurate, reference to powers similar to those accorded to states by conclusory sovereignty simply clouds the analysis by treating unlike things alike.

2. Sovereignty and Territory

Territoriality has many benefits, as well as costs, and may be an appropriate basis for allocation of jurisdiction in many circumstances. Territoriality is a type of formalism, and suffers from the same deficiencies as other formalist rules: under inclusiveness and over breadth. However, under some circumstances, the costs of under inclusiveness and over breadth may be less than the costs of unpredictability and adjudication in a greater number of cases. Conclusory sovereignty is often paired with conclusory territoriality: the assumption that prescriptive jurisdiction can and should be allocated based on the territoriality of conduct. Furthermore, conclusory sovereignty, with its unsustainable assertion of unconstrained state power, requires territoriality as a basis to cabin the separate omnipotencies of multiple states. In fact, territoriality is the constraint that unravels the assertion of unconstrained state power. The myth of unconstrained state power fails horizontally because territoriality constrains it. Furthermore, the territoriality constraint is radically indeterminate. Since Walter Wheeler Cook's legal realist attack on the vested rights theory in the 1930s and 1940s, conflict of laws scholars have known that simple assertions of territoriality often fail to answer questions of allocation of power.' The assertion of unconstrained state power also fails vertically, because states at least agree on the existence of international law, including the international law rule that vertically limits each state's horizontal assertion of power on bases related to territory.


3. Sovereignty and Subsidiarity

Sovereignty has both horizontal and vertical determinants.21 A state's power vis-A-vis other states is the horizontal determinant. A state's power visA-vis substate and suprastate institutions (and individuals) is the vertical determinant. The vertical determinant is addressed by the concept of subsidiarity, which is often used, like sovereignty itself, as a conclusory epithet. The vertical allocation of plenary power to the state is also confounded by the inability to parcel out discrete powers horizontally. In order to manage a system where power cannot be allocated horizontally, states must share power through vertical structures. These vertical structures include the international legal order itself, as well as particular treaties, arrangements, and institutions by which states share power in the international legal system.

B. Territory and Cyberspace

It is not clear to me that “cyberspace radically undermines the relationship between legally significant phenomena and physical location." 4 Did the telephone, telegraph, television, or mail do so? Are they different from cyberspace, other than in terms of frequency, velocity, and cost? Conduct still occurs in territory. Individuals still reside in territory. Most importantly to me, effects are still felt in territory." Thus, while cyberspace may be a "supraterritorial" phenomenon that fractures both conduct and effects, supraterritoriality is not new, and conduct and effects have been fractured in the past. More importantly, the supraterritoriality of the medium only results in part in a supraterritorial society. Our problem is to determine to which society or society’s regulation of a particular problem "belongs." It is too easy to argue that regulation of cyberspace belongs to the cyberspace society. Why does not

• Under Common Law

Under the common law the sphere of cyber space has not been able to develop itself, as the technological advancement came into existence. It is important to evaluate the changes brought by the rise of cyberspace. As we evaluate the choice between the state and the international organization as loci of power, we must give cyberspace its due: cyberspace works on the transaction costs side of the market, the state, and the international organization. It is here that the role of cyberspace may be viewed as revolutionary. Let us briefly enumerate the types of effects cyberspace may have on the information economics of governance.

Before we examine some real effects, however, it is worth noting one alleged effect that is worth disputing. This is the argumentthat cyberspace is not technically susceptible to regulation. There is nothing to this argument: anything brought by the mind of man is capable of regulation by the mind of man. While there may be a lag between the private initiative and the regulatory response, again, this is not peculiar to cyberspace. Finally, cyberspace may raise the costs of regulation to the point where it is inefficient to regulate, but it has not been demonstrated that this is the case and, at least in theory, one would expect the technological miracles that enable cyberspace also to enable its regulation.

• Famous case summaries

Case of US v. Gorshkov, 2001 Wl 1024026

In 2000, the FBI found out that there has been a series of breaking into the computer systems of various businesses in the United States. The FBI identified the persons responsible as Vasiliy Gorshkov and Alexey Ivanov who are both Russians. The FBI devised a plan to lure them into the United States by creating a corporation called Invita. Gorshkov and Ivanov were then invited to the company for an interview. During the interview Gorshkov and Ivanov were asked to demonstrate their skills in computer hacking. They were provided by the FBI a laptop computer to access their home computers where they keep their hacking tools. The Russians did not know that the FBI used a tool to get the user id and password of the hackers. The Russians were immediately arrested after the demonstration. Subsequently the FBI without a search warrant used the user id and password captured from the laptop to download the information from Gorshkov and Ivanov’s home computers in Russia which they used as evidence against the parties. After they were charged for the computer crime, Gorshkov moved for the suppression of the evidence obtained from the home computers which violate the Fourth Amendment and the Russian Law (US v. Gorshkov, 2001 Wl 1024026). The main issue in this case is whether the defendants’ right against unreasonable searches and seizures under the Fourth Amendment were violated when the FBI downloaded from their home computers in Russia. On one hand, the researcher may argue that Russia is a sovereign country, and thus the United States as a matter of comity should have sought permission from Russian authorities to search the computer of Gorshkov and Ivanov. On the other hand, the FBI argued that since the act of downloading from a computer source does not constitute a search it is not necessary for the FBI to secure consent from Russian authorities.

The court denied the motion of the Russians. The court denied the motion of the Russians, relied on the fact that the Fourth Amendment may be invoked only when there is search and seizure within the meaning contemplated by the Fourth Amendment. However, the act of downloading information form a computer in another country by the FBI agents do not constitute a search or seizure since the copying of the data on the Russian computers did not interfere with the possessory interest of the defendant in the data. In this case, the data remained intact, unaltered and accessible to the defendant. Moreover, it would not have been possible for the FBI agents to first secure a warrant of arrest before they can download the data as it would have been possible that the defendant’s co-conspirators could destroy that evidence.

Gary McKinnon Case

In 2001 and 2002, Gary McKinnon, a systems administrator in United Kingdom, hacked into 97 United States military and NASA computers from his home computer. After he hacked the computers, he deleted data from these computers which included the following:

a) Critical operating system files which result in the shutdown of the entire United States Army’s Military District of Washington Network of over 2000 computers for 24 hours;

b) 2,455 user accounts on a US Army computer and their control access to an army computer network which caused the computers to reboot and become inoperable;

c) the logs from computers at US Naval Weapons Station Earle which was being used for monitoring the identity, location, physical condition, staffing and battle readiness of Navy ships.

With the deletion of these files, the United States for several hours became vulnerable to intruders. Moreover, the defendant also copied data and files into his own computers which include operating system files containing account names and passwords from 22 computers among them are files from US army computers, 35 files from US Navy computers, and 6 from NASA computers. Investigation by the UK National Hi-Tech Crime Unit revealed that Gary McKinnon was responsible for the intrusions and he was arrested under the Computer Misuse Act. No charges were brought by UK against McKinnon. Later, a new Extradition Treaty was signed between the United States and the United Kingdom. Because the crime was covered under the Extradition Treaty between the United States and the United Kingdom, the United States advise the UnitedKingdom that it will be requesting for the extradition of Gary McKinnon.

Charges were filed against Garry McKinnon in August and September 2004 in Districts of Virginia and New Jersey which subsequently issued a warrant of arrest against him. Gary McKinnon’s legal team challenged his extradition on the ground that the location of the criminal act, the facilities and the computers were all in the United Kingdom. For his legal team, it was their strategy to invoke United Kingdom’s jurisdiction over the case. Reason is simple; the United Kingdom has a long history of being lenient to those who commit computer crime (Tom Espiner, 2009). Under UK’s Computer Misuse Act, the maximum penalty is only five years. On the other hand, if ever McKinnon will be extradited he may face up to 70 years if found guilty of hacking computer military system (“CPS Decision on Gary McKinnon Case”, 2009, p.1).

Online E-Commerce Attack

In February 2000, Amazon.com, Ebay.com, and Yahoo.com were among many Internet sites affected by a group of cyber-terrorists who hacked into the company websites and made alterations to program coding. The problem was so severe that the companies were forced to shut down in order to repair the damage and stop the unauthorized activity. As a result of the site closing, program changes were made to help prevent future break-ins (Kranhold 2000). The Western Union branch of First Data Corp came under attack by a private hacker. In September 2000, the perpetrator hacked into the company site and stole credit-card information for 15,700 customers. Apparently, the theft was made possible during a routine maintenance process when an employee left the files unprotected and vulnerable to attack. First Data Corp immediately notified authorities and both the FBI and CIA became involved with the investigation (Colden 2000).

Perez and Brooks 2005

In October 2004, the perpetrator gained access to the ChoicePoint Inc.‟s database and thereby managed to pilfer 145,000 credit card files before leaving the system. The perpetrator did not have to crack the system with hacking procedures; however, he simply lied about his identity over the phone and on a few forms. As a result, the data was simply handed over to him. As a normal course of business, companies like ChoicePoint Inc. distribute this type of information for a price to individuals for legitimate business purposes. In this case, the perpetrator made up false information about himself and was given access to the files. As a result of the incident, the company has taken steps to prevent this problem from recurring.

References

An Introduction to Cyber Crime and Cyber Law, by R.K. Chaubey, Kamal Law House, Kolkata, 2008 Edition

Ø On cyber Crime and Cyber Law, by G.S. Bjapai, Serials Publications, New Delhi, 2011 Edition

Ø Law of Cyber Crimes and Information Technology law, by S. Rao and V. Joga, wadhwa and Co. (Nagpur)

Ø Cyber Crimes and Law, by Dr. Amita Verma, Central Law Publications (2009) Edition

Ø Legal Framework on Cyber Crime, The Information Technology Act, 2000 by Lawmann‘s, Kamal Publishers (New Delhi)

  1. Halder D. & Jaishankar K. (2011) Cyber crime and Victimization of Women: Laws, Rights and Regulations or Hershey, PA, USA: IGI Global. (ISBN 978-1-60960-830-9) Internet Security Systems: March-2005
  1. As defined in the Merriam-Webster Dictionary ( http://www.merriam-webster.com/dictionary/pornography)
  1. G.S. Bajpai, On Cybe Crime and Cyber Law, Serials Publications, 2011 New Delhi (India) at pg. 4
  1. William Gibson, who coined the term ‗‘Cyber space’
  1. Dr. Amita Verma, Cyber Crime and Law, First Edition (2009), Central Law Publications, Allahabad at pg. 31
  1. The term ‗Cyber‘ Prefix, derived from cybernetics, used to describe the entire range of things made available through the use of computers
  1. Halder D. & Jaishankar K. (2011) Cyber crime and Victimization of Women: Laws, Rights and Regulations or Hershey, PA, USA: IGI Global. (ISBN 978-1-60960-830-9) Internet Security Systems: March-2005
  1. Introduction to Cyber Crime, Available at: http://cybercrime.planetindia.net/cybercrime_cell.htm. Last assessed on 20 September, 2012
  1. See R Nagpal- Beware! Cyber Ciminals are on the prowl, Navhind Times, March 17, 2002
  1. See Parthasarathi Pati, Cyber Crime, http://www.naavi.org/pati/pati_cybercrimes_dec03.htm last assessed on 19th September, 2012
  1. According to statistics provided ―Web Usage Statistics‖ at last assessed on 15 September, 2012
  1. UN Manual on the Prevention and Control of Computer-related Crime,
  1. last assessed on 25 September, 2012
  1. UK National Criminal Intelligence Service(UKNCIS), Project Trawler, 1996 < http://www.ncis.co.uk/newpage1.htm> last assessed on 25 September, 2012

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