They also argue that the design of cyberspace disqualifies notice of prevailing law that is critical to the legitimacy of the law. On the contrary, cyberspace members are much better sanctioned than territorial watchdogs to formulate wide-ranging legal policies that would grant appropriate notice to cyberspace members and internalise the expenditures of cyberspace transactions. The regulation cynics assume from these claims that national regulators must “defer to the self-regulatory efforts of Cyberspace participants” (Thierer & Crew 2003: 31).
This paper will challenge the cynic’s claims and their assumptions, or more specifically, this paper will argue that the law of nations applies to the Internet. The cynics have three obvious mistakes. First, they overemphasise the dissimilarities between cyberspace activities and other transnational activities. Both entail individuals in actual space in one national jurisdiction negotiating with individuals in actual space in another national jurisdiction in a manner that at times brings about actual-world damages.
Second, the cynics do not address the delineation between mandatory laws and default laws. Their absolute normative argument that self-regulation should be granted to cyberspace makes sense in relation to default laws that, theoretically, private factions can adjust to suit their needs (Spinello 2002). On the contrary, it makes much less logic in relation to regulatory or mandatory laws that, for protective justifications or in order to safeguard intermediaries, set restrictions on ‘private legal ordering’ (Spinello 2002: 101). Lastly, the cynics undervalue the capability of established legal instruments and technology to lighten the regulatory difficulties caused by cyberspace. Cyberspace activities do not naturally permit any more respect by territorial regulators, and are not considerably less opposed to the instruments of