Cyberborders through 'Code': An All-or-Nothing Affair?

Introduction Many observers to the internet governance debate may be sceptical about the idea of cyberborders mirroring traditional territorial borders. Such scepticism seems reasonable as such borders appear to run counter to the inherently global nature of the internet. That borderless nature would seem to make the erection of cyberborders difficult from both a political and a practical perspective. Nonetheless, the previous chapters have shown that states in the East and the West have drawn these boundaries for numerous purposes, such as child pornography, piracy, data privacy, gambling and speech perceived to be politically/morally problematic. They have also employed a number of strategies, ranging from firewalls by backbone providers in China and self-censorship and notice-and-takedown duties by private actors, especially intermediaries (e.g. the right to be forgotten in Europe) to more diffuse measures (e.g. forcing credit card providers not to honour payments to foreign gambling providers). This chapter explores the idea of cyberborders in more depth, in particular how ‘code’ or ‘architecture’ – to use Lessig's idea of physical restraints as a legal strategy – may be and is used to territorially fragment the internet, and the reasons behind that fragmentation, which is not driven solely by national legal compliance concerns. The discussion explores the interactions between ‘code’ and ‘legal norms’ and the ‘market’ (broadly as understood by Lessig) within the specific context of the transnationality of the internet and its attempted regulation through national law.A prerequisite for cyberborders is the ability to know where internet actors are territorially located and this is increasingly facilitated by the growth of affordable geo-identification technologies which make it possible even for relatively small providers to territorially target or alternatively ‘dis-target’ (i.e. ring-fence) their sites for a variety of reasons. Equally, knowing that an offending website is located outside the state's territory means that a blocking order can be put in place with local ISPs, which would make that site internally inaccessible. As shown by Lessig, one of the advantages of using ‘code’ for legal purposes is that it may often be (nearly) 100 per cent effective, with no or little enforcement cost.