The Future of Cybertravel: Legal Implications of the Evasion of Geolocation

Although the Internet is valued by many of its supporters particularly because it both defies and defeats physical borders, these important attributes are now being exposed to attempts by both governments and private entities to impose territorial limits through blocking or permitting access to content by Internet users based on their geographical location — a territorial partitioning of the Internet. One of these attempts, for example, is the recent Stop Online Piracy Act (“SOPA”) proposal in the United States. This article, as opposed to earlier literature on the topic discussing the possible virtues and methods of raising borders in cyberspace, focuses on an Internet activity that is designed to bypass the territorial partitioning of cyberspace and render any partitioning attempts ineffective. The activity — cybertravel — permits users to access content on the Internet that is normally not available when they connect to the Internet from their geographical location. By utilizing an Internet protocol address that does not correspond to their physical location, but to a location from which access to the content is permitted, users can view or use content that is otherwise unavailable to them. Although cybertravel is not novel (some cybertravel tools have been available for a number of years), recently the tools allowing it have proliferated and become sufficiently user-friendly to allow even average Internet users to utilize them. Indeed, there is an ∗Associate Professor of Law, William S. Boyd School of Law, University of Nevada, Las Vegas. The author thanks her colleagues at the William S. Boyd School of Law for their comments and suggestions, particularly Professor Mary LaFrance, Professor Ann McGinley, Professor Francis J. Mootz III, and Professor Jean Sternlight. She would also like to thank Professor Pedro de Miguel Asensio, Professor Derek Bambauer, Professor Adam Candeub, Professor John Cross, JUDr. Adela Faladova, Paul Geller, Professor Eric Goldman, Professor Paul Goldstein, Professor Thomas Hoeren, Professor Paul C. Van Oorschot, Professor David G. Post, Wendy Seltzer, Professor Brenda Simon, and Professor Dan Jerker B. Svantesson. The author appreciates the helpful input from the participants of the 2011 Internet Law Works in Progress conference, the 2011 Intellectual Property Scholars Conference, and the 39th Research Conference on Communication, Information and Internet Policy. The author is indebted to David McClure and Jennifer Anderson at the Wiener-Rogers Law Library of the University of Nevada, Las Vegas, and Shweta Kadam of the William S. Boyd School of Law for valuable research support, and Ammon Francom and William “Hunter” Campbell, J.D. candidates at the William S. Boyd School of Law. The author thanks Gary A. Trimble for his unlimited support for her research and writing. Finally, the author would like to recognize a friend from Sunnyvale, California, who inspired the author to write this article. increasing interest in cybertravel among the general Internet public as more and more website operators employ geolocation tools to limit access to content on their websites from certain countries or regions. This article analyzes the current legal status of cybertravel and explores how the law may treat cybertravel in the future. The analysis of the current legal framework covers copyright as well as other legal doctrines and the laws of multiple countries, with a special emphasis on U.S. law. The future of the legal status of cybertravel will be strongly affected by the desire of countries and many Internet actors to erect borders on the Internet to facilitate compliance with territorially defined regulation and enjoy theadvantages of a territorially partitioned cyberspace. This article makes an attempt to identify arguments for making or keeping certain types of cybertravel legal, and suggests legal, technical, and business solutions for any cybertravel that may be permitted.