Elephants and Mice Revisited: Law and Choice of Law on the Internet

By definition, an essential question of cyberlaw is to define when law will affect actions in cyberspace. Such law might be uniform, such as where nations have entered into a treaty or have adopted the same legal rule. Or, such law might be diverse, such as where nations adopt different legal rules. Diversity of law often does not matter for physical acts, such as where the criminal law of one country simply does not apply to acts performed in a foreign country. On the Internet, however, diversity of law poses a fundamental challenge. Each surfer on a website might be from a foreign jurisdiction, with laws unknown to the owner of the site. Similarly, each website visited by a surfer might be hosted in a foreign jurisdiction, with laws unknown to the surfer. Every encounter in cyberspace, therefore, raises the possibility that diverse laws will apply. The rules for choosing among diverse laws—the subject of this part of the Symposium on “Choice of Law and Jurisdiction on the Internet”—thus appear uniquely important for cyberspace. Surprisingly, however, the number of actual cases addressing choice of law on the Internet is far, far lower than the initial analysis would suggest. Although there is the possibility of diverse national laws in every Internet encounter, some mysterious mechanisms are reducing the actual conflicts to a handful of cases. This Article seeks to explain those mysterious mechanisms. It does not primarily address the prescriptive task of saying what the optimal rules should be for resolving conflicting national laws that affect the Internet. Instead, it takes on a descriptive task. It treats choice of law on the Internet as a dependent variable; the task is to explain when and how choice-of-law rules actually matter on the Internet.