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Sealand, Havenco, and the Rule of Law

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GRIMMELMANN.DOCX (DO NOT DELETE) 3/16/2012 8:46 AM SEALAND, HAVENCO, AND THE RULE OF LAW James Grimmelmann* In 2000, a group of American entrepreneurs moved to a former World War II antiaircraft platform in the North Sea, seven miles off the British coast. There, they launched HavenCo, one of the strangest start-ups in Internet history. A former pirate radio broadcaster, Roy Bates, had occupied the platform in the 1960s, moved his family aboard, and declared it to be the sovereign Principality of Sealand. HavenCo’s founders were opposed to governmental censorship and control of the Internet; by putting computer servers on Sealand, they planned to create a “data haven” for unpopular speech, safely beyond the reach of any other country. This Article tells the full story of Sealand and HavenCo—and examines what they have to tell us about the nature of the rule of law in the age of the Internet. The story itself is fascinating enough: it includes pirate radio, shotguns, rampant copyright infringement, a Red Bull skateboarding special, perpetual motion machines, and the Montevideo Convention on the Rights and Duties of State. But its implications for the rule of law are even more remarkable. Previous scholars have seen HavenCo as a straightforward challenge to the rule of law: by threat- ening to undermine national authority, HavenCo was opposed to all law. As the fuller history shows, this story is too simplistic. HavenCo also depended on international law to recognize and protect Sealand, and on Sealand law to protect it from Sealand itself. Where others have seen HavenCo’s failure as the triumph of traditional regulatory authorities over HavenCo, this Article argues that in a very real sense, HavenCo failed not from too much law but from too little. The “law” * Associate Professor of Law, New York Law School. I presented earlier versions of this Arti- cle at the Bits Without Borders conference at Michigan State University, to the Information Society Project at Yale Law School, and to faculty workshops at New York Law School and Fordham Law School. My thanks for their comments to the attendees there, to the readers of the Volokh Conspiracy blog, and to Aislinn Black, Claude Aiken, David Auerbach, Robert Blecker, Andrea Casillas, Michael Froomkin, Jean Galbraith, Nathaniel Gleicher, Peter Hirtle, Molly Land, Jan Lewis, Dominic Mauro, David Post, Harry Surden, Berin Szoka, and Christopher Wong. Nate Anderson generously shared the Sealand-related fruits of his research for his forthcoming book, The Internet Police. William Mills at the NYLS library helped track down numerous sources. Geoffrey Weg and Katie Baxter provided research assistance. This Article is available for reuse under the Creative Commons Attribution 3.0 U.S. license, http://creativecommons.org/licenses/by/3.0/us/. 405 GRIMMELMANN.DOCX (DO NOT DELETE) 3/16/2012 8:46 AM 406 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2012 that was supposed to keep HavenCo safe was law only in a thin, for- malistic sense, disconnected from the human institutions that make and enforce law. But without those institutions, law does not work, as HavenCo discovered. TABLE OF CONTENTS I. INTRODUCTION ............................................................................................. 406 II. SEALAND ...................................................................................................... 412 A. 1942: Roughs Tower ........................................................................... 413 B. 1966–1967: Roy Bates ........................................................................ 414 C. 1967: Roy Bates vs. The United Kingdom .......................................... 418 D. 1967–1968: The Principality of Sealand ............................................ 421 E. 1968–1978: Grand Schemes ............................................................... 424 F. 1978: Civil War .................................................................................. 427 G. 1978–1990: Pirate Broadcasting Redux ............................................. 430 H. 1987–2011: Recent Developments ...................................................... 434 I. Life on Sealand ................................................................................... 437 J. Other Sealands ................................................................................... 439 K. Themes ................................................................................................ 443 III. HAVENCO ..................................................................................................... 445 A. “Data Haven” .................................................................................... 445 B. Rise ..................................................................................................... 449 C. Fall ..................................................................................................... 453 IV. THE RULE OF LAW ........................................................................................ 457 A. National Law ...................................................................................... 459 1. HavenCo and National Law ...................................................... 460 2. The Rule of Law As Self-Government ........................................ 463 B. International Law ............................................................................... 465 1. Sealand and International Law ................................................. 465 2. The Rule of Law As Formal Legality ......................................... 473 C. Sealand Law ....................................................................................... 476 1. The Rule of Law As Restraint on Government ........................... 476 2. HavenCo and Sealand Law ....................................................... 477 D. Connections ........................................................................................ 479 V. CONCLUSION ................................................................................................ 481 I. INTRODUCTION Sealand is stranger than fiction. A pair of concrete legs supporting a 120-foot by 50-foot platform, 60 feet above the North Sea, this “small- est country on earth” sits 7 miles off the British coast. Built during World War II for antiaircraft defense, it was occupied in the 1960s by Roy Bates, a former pirate radio operator who declared himself ruler of the new Principality of Sealand. Boosting his claim, a British court ac- quitted him in 1968 on firearms charges because Sealand stood outside of British territorial waters. He made Sealand into his family’s home: GRIMMELMANN.DOCX (DO NOT DELETE) 3/16/2012 8:46 AM No. 2] SEALAND, HAVENCO, AND THE RULE OF LAW 407 promulgating a constitution; issuing stamps, coins, and passports; and generally adopting the trappings of nationhood. Sealand has even had a coup and countercoup: in 1978 a German lawyer seized control of the platform, only to be taken prisoner by Bates in a daring helicopter land- ing a few days later. Sealand’s moment of greatest fame came in 2000, when it offered the ultimate in literally offshore data hosting. The Internet startup HavenCo built out Sealand as a data center, moving in computer servers and connecting them to the Internet. The idea was that HavenCo would be a data haven, which would store content that was illegal in other coun- tries. Online casinos, subpoena-proof corporate records, good old- fashioned pornography—HavenCo would host it all, safely beyond the reach of any other country’s courts. The company launched to massive press coverage (including a cover story in Wired1), promising unfettered free speech to the masses while extending a raised middle finger to cen- sors and control freaks around the world.2 This much is familiar to scholars.3 Talk to any Internet-law scholar 1. See Simson Garfinkel, Welcome to Sealand. Now Bugger Off, WIRED, July 2000, at 230. 2. See, e.g., Around the Globe, 27 COMPUTER L. & TAX REP. 16, 16 (2000); Mara D. Bellaby, An Internet “Mouse that Roars” Pops up off Britain, HOUS. CHRON., June 25, 2000, at 10; Steve Boggan, Americans Turn a Tin-Pot State off the Essex Coast into World Capital of Computer Anarchy, INDEP. (Eng.), June 5, 2000, at 3; David Canton, Creating a Country to Avoid Jurisdiction, LONDON FREE PRESS, June 16, 2000, at D3; David Cohen, Offshore Haven: Cold Water Poured on Sealand Se- curity, GUARDIAN, June 6, 2000, at 24; Anne Cornelius, Legal Issues Online Firms Set to Take Refuge in Offshore Fortress, SCOTSMAN, June 15, 2000, at 26; Peter Ford, Banned on Land, but Free at Sea?, CHRISTIAN SCI. MONITOR, June 23, 2000, at 1; Dan Gillmor, Data Haven May Be a Step in the Right Direction, SAN JOSE MERCURY NEWS, June 6, 2000, at 1C; Carlos Grande, Island Fortress’s “Data Ha- ven” to Confront E-Trade Regulation, FIN. TIMES, June 6, 2000, at 2; Ann Harrison, Data Haven Says It Offers Freedom from Observation, COMPUTERWORLD, Nov. 13, 2000, at 50; Bob Low, Techlife: Tiptoing Through the Web, DAILY REC. (Scot.), July 1, 2000, at 42; John Markoff, Rebel Outpost on the Fringes of Cyberspace, N.Y. TIMES, June 4, 2000, at 14; Wade O’Leary, Pirates Board the Net, DAILY TELEGRAPH (Austl.), June 7, 2010, at 57; Edward Sherwin, A Distant Sense of Data Security, WASH. POST, Sept. 20, 2000, at G8; Europe Acts on Net Tax Loophole, ACCT. AGE, June 8, 2000, at 3; Internet Exiles, NEW SCIENTIST, June 17, 2000, at 1717; Internet “Island” Set Up in the North Sea: Data Haven with Gun Guards and Radar, BIRMINGHAM
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