Christopher Marsden (University of Sussex) has posted Transnational Internet Law on SSRN.
The greatest, and certainly to a Westphalian nation-state-centered universe most revolutionary, challenge for regulation is the increasing co-operation between national, regional and international networks of regulators, to regulate the Internet. Reidenberg coined the term ‘lex informatica’ to explain its transnational legal nature, based on Berman and Kaufman’s analysis of mediaeval lex mercatoria, rather than Jessup’s transnational law. In Part 2, I briefly consider the technical standards that permit Inter-networking and thus the Internet. Part 3 examines how standards – including commercial and legal standards – have created a transnational lex informatica. In Parts 4-5, I focus on two phenomena of the transnational Internet law evolution. The first is governance by contract for all commercial transactions, even those that are ostensibly free of monetary value, in which the contractors are trading private information for advertising revenue. The second is the ‘open Internet’, laws protecting some aspects of network neutrality.
The paper is forthcoming in Peer Zumbansen (ed.), Oxford Handbook of Transnational Law (OUP 2020). It can be downloaded here.