Layered Sovereignty: Adjusting Traditional Notions of Sovereignty to a Digital Environment

The question of how to define sovereignty in cyberspace is currently one of the most contentious issues in international law. The traditional understanding of sovereignty is based on the assumption of exclusive control over geographically defined territory. However, the global accessibility of computer networks eliminates distance and geography as limiting factors for the exercise of power by States (and non-State actors). This creates a security dilemma: while modern ICTs allow adversaries to challenge States' exclusive authority over `their' cyberspace, traditional notions of sovereignty appear to limit the States' ability to actively respond to these challenges in foreign networks. In this paper I argue for a `layered' understanding of sovereignty in cyberspace. Recent international practice, including national legislation and court decisions relating to jurisdiction over transboundary activities, shows that while States stress the exclusive nature of authority and jurisdiction over the physical layer of cyberspace, the logical and social layers are open to transboundary assertions of jurisdiction. Applying these findings to the general concept of sovereignty in cyberspace, I argue that while the physical layer is covered by State sovereignty by virtue of the principle of territoriality, the logical and social layers of cyberspace may be open to the exercise of State authority based on a criterion of proximity, i.e. whenever the State can establish a genuine link with the digital objects or online personae over which authority is to be asserted.