Law, Geography and Cyberspace: The Case of On-Line Territorial Privacy

Authors

• Daniel Benoliel, UC Berkeley School of Law

Abstract

Territorial privacy, one of the central categories of privacy protection, involves setting limit boundaries on intrusion into an explicit space or locale. Initially, the Restatement (Second) of Torts, which defined the privacy tort of intrusion as applied by courts, most notably designated two classes of excluded areas: "private" places in which the individual can expect to be free from intrusion, and "non-private" places, in which the individual does not have a recognized expectation of privacy. In the physical world, courts ultimately held, almost uniformly, that the tort of intrusion could not occur in a public place or in a place that may be viewed from a public place.

Cyberspace, on the other hand, which lacks a public sphere, does not have a balanced territorial privacy policy. Instead, based on the category of database privacy protection, only a private privacy legal rule was adopted-and too widely so. One of the main explanations for this anomaly, in fact, derives from cyberspace's unique architecture. While the physical world is subject to a default rule of a continuous public sphere, which is then subject to distinct proprietary private sphere allotments, cyberspace architecture, on the other hand, imbeds a different structure. In the latter, apart from the Internet's "public roads" or backbone transit infrastructure, which is distinctly regulated according to telecommunications and antitrust law, the present default rule contains a mosaic of private allotments-namely, neighboring proprietary websites.

This anomaly is even more acute given that the U.S. government, the Federal Trade Commission ("FTC") and theoreticians alike have, thus far, developed neither comprehensive nor supportive boundary theory that could maintain territorial privacy. All three, instead, have implicitly or explicitly only considered technocentristic boundary approaches. From a legal perspective the factual truths or scientific hypothesis underlying the existence of on-line spatiality, as discussed notably in the works of Johnson and Post, Lessig, Hunter, Lemley, and others, should, instead, be only a parameter in establishing legal truth. In compliance with what is an alternative localist boundary approach, this study suggests that law could construct a legal fiction of on-line locales through which territorial privacy, ultimately, could be integrated into cyberspace privacy policy at large. In the future, other territorially based laws, such as those within taxation, property, copyright, or the torts of trespass, could follow.

Disciplines

Communications Law | Constitutional Law | Entertainment, Arts, and Sports Law | Environmental Law | Law | Law Enforcement and Corrections | Science and Technology Law

Recommended Citation

Daniel Benoliel, Law, Geography and Cyberspace: The Case of On-Line Territorial Privacy, 23 Cardozo Arts & Ent. L.J. 125 (2005).
Available at: https://larc.cardozo.yu.edu/cardozoaelj/vol23/iss1/6