Transnational Legal and Technological Pluralism? Cybernetic Jurisdiction, Regime and Rights

Legal pluralism, embedded in the trans-jurisdictional character of networks, is a risk and a safeguard. This paper analyzes this tension by addressing three theaters where a jurisdiction is affect the laws of others. The first captures attempts to control jurisdiction via terms-of-service clauses. Such clauses may clash with traditional public law grounds for jurisdiction, as is revealed by recent litigation in Canada. Other attempts include data-localization instruments, which themselves may be pluralized, thus causing tensions. Central to the second theater is the clash of Public-Private legal regimes, stemming from recent recourse to private law litigation to check deployment of offensive malware. As the Facebook-NSO dispute reveals, such litigation pluralizes public rights in peculiar manner. The last facet relates to variations on the regime applicable to the export and import of dual-use cyber products. The plurality of approaches in this context is also a cause for concern.