Introduction to Cyberspace and Law
The Relation of Law to Cyberspace and of Cyberspace to Law


Margaret Chon
Seattle University School of Law

I. What is Cyberspace?

A. Introduction:
Cyberspace. A consensual hallucination experienced daily by billions of legitimate operators, in every nation, by children being taught mathematical concepts . . . A graphic representation of data abstracted from the banks of every computer in the human system. Unthinkable complexity. Lines of light ranged in the nonspace of the mind, clusters and constellations of data. Like city lights, receding . . . .

William Gibson, Neuromancer (1984)



Cyberspace is a spatio-temporal figure of postmodernity and its regimes of flexible accumulation. Like the genome, the other higher-order structures of cyberspace, which are displaced in counterintuitive ways from the perceptual assumptions of bodies in mundane space, are simultaneously fiercely material realities and imaginary zones. These are the zones that script the future, just as the new instruments of debt scheduling and financial mobility script the future of communities around the globe.

Donna J. Haraway, Modest_Witness@Second_Millenium.
FemaleMan©_Meets_OncoMouseTM
Feminism and Technoscience (1997)

What is cyberspace? Originally coined by science fiction writer William Gibson to describe data matrices existing in a dark distant future, the term cyberspace has entered into the common lexicon. It has come to mean the information spaces created by the technology of digital networked computer systems, most of which ultimately connect with the mother of all networks, the Internet.

Information, of course, is something that people are as well as make. Like any other human identity or activity, cyberspace is intensely social. But in this social realm, the definitions of cyberspace become less bounded and more diverse. The Information Superhighway, or the infobahn. The Wild West. The Web, as in the World Wide Web, or as in the web that binds people together in relationships. There are as many experiences of cyberspace as there are perceptions of realspace. Yet, as Donna Haraway suggests, one cannot comprehend the condition of modernity or postmodernity without somehow comprehending some core image of cyberspace.

The materials for this class form a primer to the basic concepts of cyberspace. Fortunately, recent litigation over two federal statutes regulating sexually explicit content on the Internet has resulted in solid (and still relatively accurate) judicial characterizations of cyberspace. In Reno I, which involved a constitutional challenge to the Communications Decency Act, a three judge panel of the Eastern District of Pennsylvania held weeks of hearings, including testimony by witnesses about the technical and social nature of the Internet, and actual hands-on demonstrations in the courtroom. In Reno III, decided three years later, a single judge of that same court considered the constitutionality of the Child On-line Protection Act. In both cases, the parties entered into detailed stipulations. It is to those stipulations and other findings of fact that we now turn.

B. Primary Sources:

ACLU v. Reno (Reno I) (findings of fact only)

ACLU v. Reno (Reno III) (findings of fact only - note differences between I and III)

C. Other Sources:
Henry Perritt, What is the Internet?

David Silver, Introducing Cyberculture (Resource Center for Cyberculture Studies)

Glossary of Internet Terms

Hal Varian, The Information Economy

D. Notes and Questions

1) What do we mean when we refer to the Internet or cyberspace? Are we referring to just the descriptive technological aspects, such as the TCP/IP protocol or file transfer protocol? Or to the social consequences of these technologies? If to the latter as well as the former, then what are these social consequences?

2) The Internet is not a monocultural medium, even when considered as a technology alone. Both Reno courts understood that there were technological or communicative subcultures on the net, such as e-mail, listservs, usenet groups and websites. As you read cyberlaw cases in the following sections, make sure to identify with precision the type of Internet communication each court is addressing. You will need to understand the differences between each of these different technologies (the Glossary of Internet Terms, or perhaps a technologically savvy friend, may help).

What are some of the analogies to physical communication that are suggested by e-mail? By listservs? By websites? By web-casting, through software such as Real Audio? By chat rooms? By bulletin boards? How is the Internet different from previous communication media, such as television or radio, or even classroom and books?

3) Although we are not studying these cases for first amendment doctrine, it is important to understand the basic legal test in the Reno cases, in order to make a judgment about what the most legally pertinent facts about the Internet might be.

A later unit will explore the first amendment's guarantee of free speech in much greater detail. For now, simply note that the Reno III court applied a two part test known as the ends-means analysis: (1) whether there is a compelling governmental interest; and (2) whether the government narrowly tailored its means (the regulation at issue) to the ends (the interest articulated in part one). An alternative formula to the second part of the test is whether the government used the least restrictive means of regulation to achieve the compelling governmental interest.

Even the Reno plaintiffs conceded that the government's interest in protecting children from harmful material on the Internet is compelling. Under part two of the ends-means analysis, then, what are the most technologically pertinent facts? What about the most relevant social facts? If you had to choose the ten most pertinent findings of fact for a case brief, which would you choose? After reading the Reno III court's first amendment analysis in unit three, you may want to revisit this question.

4) Are there any salient differences between the way the Reno I court and the Reno III court (three years later) viewed the Internet? Do these differences suggest anything about the development of cyberspace during this period of exponential growth? What of the difference between commercial and non-commercial websites? Between large and small publishers? Between the initial vision of the Internet as a space for free exchange of scientific information and its current form, which includes a large dose of the great American tradition of hucksterism? Remember that the Court must fashion a free speech rule that cuts across these different stake-holders, safe sex advocates and patent medicine salesmen alike. In light of that constraint, what do you think of the ACLU's litigation strategy of joining a wide variety of website owners as co-plaintiffs? Would you have picked different plaintiffs to make an even stronger case? Which ones?

II. What is the Impact of Law on Cyberspace?



A. Introduction

Now that we understand some of the rudiments of cyberspace, we turn to some problems of governance and legal regulation. As the Reno courts noted, cyberspace is characterized by a tremendous permeability of boundaries: physical, political, and social. The regulation of realspace depends quite a bit on the assumption that fences and rivers won't jump around. That assumption does not hold up in cyberspace. This section explores some of the consequences of the absence of some meaningful boundaries in cyberspace.

The two cases chosen for this section involve attempts by state government to regulate a phenomenon that simply cannot be confined within state lines. They illustrate a larger problem of regulatory arbitrage. Even national governments cannot expect to contain the effects of cyberspace, because it is truly a global technology, simultaneously nowhere and everywhere. This means that inhabitants of cyberspace can "move" from one legal jurisdiction to another, and "choose" the legal rules that might apply to them.

Almost every area of law that touches cyberspace is forced into the consideration of first principles. Just because familiar boundaries have dissolved does not mean that there are no boundaries in cyberspace. New boundaries, such as domains defined by technical specifications, may take place of boundaries that used to be defined by rivers. And boundaries in cyberspace are still linked to real effects in physically-bounded realspace. One of the biggest theoretical challenges to cyberlaw is thus to recognize, articulate and delineate the extent and role of these rezoned spaces.

B. Primary Sources:

American Library Association v. Pataki

ACLU of Georgia v. Miller

Washington State Unsolicited E-mail Statute
C. Other Sources:

A. Michael Froomkin, The Internet as a Source of Regulatory Arbitrage

David Post, various writings on governance
D. Notes and Questions

1) Cyberspace poses a tremendous challenge to traditional notions of jurisdiction, as will be explored in the next unit. In these readings, focus on the question of governance in the abstract.

2) Because of the permeability of territorial and ergo political, as well as other kinds of boundaries, any regulation of cyberspace is bound to experience a higher degree of failure than regulation of physical spaces. In Professor Froomkin's words, "the multinational nature of the Internet makes it possible for users to engage in regulatory arbitrage to choose to evade disliked domestic regulations by communicating/transacting under regulatory regimes with different rules. Sometimes this will mean gravitating to jurisdictions with more lenient rules, or perhaps no rules at all; sometimes it will mean choosing more stringent foreign regimes . . . when stricter rules are more congenial."

Does this heightened exit strategy mean that there will always be a race to the bottom? That off-shore jurisdictions with minimal legal regulation are sure to become havens for Internet gambling, child pornography and other operations that might be banned in other places (and that most people would agree is unsavory if not totally unacceptable)?

Could it mean also that there might be a race to the top? That higher values such as freedom of speech necessarily will be imposed on jurisdictions that heavy-handedly regulate speech or otherwise engage in repressive governmental action?

Who decides which value system should prevail? How would this decisionmaking take place in the absence of a collective international representative body? What if country A is more concerned about violence, country B about hate speech, country C about sexually explicit content, and country D about maintaining political stability in the face of dire economic circumstances? Would they be able to reach some consensus about which kinds of speech should be subject to regulation? And even if they do, what about countries E and F who are not subject to this agreement? Won't they inevitably act as spoilers?

3) What might be the destabilizing role of net anarchists who delight in tweaking any sort of command and control action, whether it emanates from the public sector or the private sector? Will individual acts or collective preferences then supersede national or even international regulation? If so, what are the possible consequences? Is it possible to have governance based solely on netiquette or, in the alternative, customary law (perhaps analogous to customary international law)?

4) Some cyberspace theorists have proposed a cyberjurisdiction, in which cybercitizens determine the rules of governance. Others propose a network federation, composed loosely of entities that participate in the Internet such as ISPs, governments, as well as individuals. Is it possible to separate completely cyberactors in cyberspace from real people in physical space? Are these models workable on a practical level? What implications might they have for the important distinction in American law between public and private law?

5) Consider the relatively simple governance problem of regulating cyberspace within the territorial boundaries of the United States. Our federalist system of government reserves to the states their traditional police powers to protect citizens within their borders. But what happens when the regulations of state A (enacted to protect citizens in state A) begin to impact the citizens of state B? At what point does state A's regulation over-reach its concededly legitimate police power? Pataki shows us that these questions might be resolved by reference to the federal government's greater power (via the commerce clause - remember those mud flaps cases?) to prevent this type of state over-reaching. (Even so, then we are back to the problem discussed in the previous notes.) Does Pataki mean that any state regulation of cyberspace is vulnerable to a commerce clause attack? Or just those state laws that are not limited to the cyberspace equivalent of mud flaps? To take an example, consider section 3 of the Washington state unsolicited e-mail law. Under the reasoning of Pataki, is this statute constitutional? Why or why not?

6) Most acts in cyberspace are also speech. Does the speech quality of most cyber-acts mean that all attempted governmental regulation of cyberspace is vulnerable on first amendment grounds? What was the problem that the Georgia legislature in Miller was trying to address with its ban on anonymous Internet communication? What would be an appropriate analogy to the real world? State laws prohibiting anonymous political leafleting, which have found to be unconstitutional? Or state bans against wearing hoods (passed in many Southern states in light of Ku Klux Klan activities)? If those latter laws are constitutional forms of regulating expressive conduct, then why not the statute in Miller? Revisit these questions after you complete the unit on the first amendment.

III. What is the Impact of Cyberspace on Law?



A. Introduction

Just as law affects the direction and development of cyberspace, cyberspace inevitably impacts law. We tend to view law as formal law, that is, state-sanctioned mechanisms for imposing certain rules of liability or enforcing certain conduct upon those within the political borders of the sovereign. In the U.S. context, we equate legal regulation with big government (whether one thinks that a good or bad thing) exerting control through a top down strategy. But, more than many other domains of legal regulation, cyberspace stretches our common sense notions of law, and forces us to look to alternative constructs.

The cases here are selected to illustrate some of the possible alternatives to legal regulation through explicit government action. They involve the problem of "spam", that is, unsolicited or junk e-mail. This problem will be explored in greater detail in a later unit, but here the focus is on the questions they raise about the efficacy of alternative regulatory strategies.

These materials also implicitly raise the question of whether a shift in regulatory mechanisms is good, from a policy standpoint. The values embedded in tried and true forms of regulation must now be replicated in newer and untested forms. And, although it is undeniable that cyberspace has increased the total amount of informational freedom, other democratic values such as equality and dignity (and even happiness!) should also be considered. Digital networks are not gridded homogenously with the democratic values such as freedom or equality. Moreover, legal rules will differentially impact these values as they apply differentially to various stake-holders.

B. Primary Sources:

AOL v. CyberPromotions

Acceptable Use Policy for your educational institution [many are archived at:http://www.cornell.edu/CPL/Policies/"]

If your institution is not included in the archive, then go to the Cornell policy on Responsible Use of Electronic Communication [http://www.cornell.edu/Computer/responsible-use/Index.html#resp-use]

Compuserve v. Cyberpromotions

C. Other Sources:

David Post, Anarchy, State and the Internet: An Essay on Law-Making in Cyberspace [http://warthog.cc.wm.edu/law/publications/jol/post.html], particularly, paras 6-8

Lawrence Lessig, The Law of the Horse: What Cyberlaw Might Teach [cyber.harvard.edu/lessigcurres.html], particularly pp. 7-11 and the diagram on page 9

Chon, Radical Plural Democracy and the Internet. (Excerpt; Full-text and footnotes can be found at 33 Cal. West. L. Rev. 143 (Spring 1997)).

C. Notes and Questions

1) Law affects cyberspace, but cyberspace also affects law. Technology may also may be a form of law. In cyberspace, as we have discussed, the locus of regulation necessarily shifts away from the state because of the permeability of boundaries. Alternative forms of regulation might include economic markets and social norms, as well as relationships defined contractually or via other legally-enforceable means. The unifying characteristic of these disparate regulators is their location in the private, rather than public, domain of decision-making. This has significant implications for American law, particularly American constitutional law. Because the Constitution is a limit only on government power (through the so-called state action requirement), private actors may engage in activity that would be constitutionally forbidden if done by the government.

2) CyberPromotions v. America OnLine raises the issue of whether privately owned Internet service providers such as America Online can be analogized to government, for purposes of a constitutional challenge to private action. The court did not find it difficult to reject the analogy of AOL to the company town in Marsh v. Alabama. But did the court consider all the possible facts? What about the fact that AOL has an ever-growing market share of the commercial ISP market? That AOL provides much of its own content, including structures of organizing material on the Internet? That its on-ramps to the Internet are only open to subscribers? That it has its form of law enforcement, through its ability to terminate subscribers for abuses of the system? That AOL, like the government, keeps records of its inhabitants? If there really is a separate place called cyberspace, did the court too easily dismiss the argument that AOL may in fact be like a company town? The first amendment aspects of this case will be treated more fully in a later module, so we discuss here the analogy of AOL to a company town for purposes of political theory only.

3) Another form of alternative regulation is through consensual contractual arrangements between individual Internet users and their access providers, such as AOL or your local university. Professor Post describes this in his chart as second party controllers, whose substantive legal rules are governed by contract and whose sanctions can include various self-help mechanisms (such as termination of contract). Examine the acceptable use policy for your university (or the Cornell University policy on Responsible Use Electronic Information). Did you know that you were subject to these constraints on your student e-mail account? Did you consent to these terms? Do you find them fair? Is there a type of procedural due process before the university may impose the sanction of terminating privileges for violation of the policy? Do you feel comfortable with these bilateral or multilateral agreements as an alternative to more formal legal mechanisms? Why or why not?

4) Regulation can also include common law remedies, such as tort. If government action is forbidden by the constitution (or if government is simply absent), then injuries may nonetheless be redressed through private civil actions. Thus a decentralized private bar may supplant or complement top-down government regulators, as in many other domains shaped by technology (think of toxic tort litigation, for example). Compuserve v. CyberPromotions suggests that a trespass theory might adequately address the injury incurred by a privately owned computer system. Can you think of other Internet-related tort injuries beside the type of hacking at issue in Compuserve? What sort of tort theories besides trespass might be stretched to fit those injuries? For example, what if a student at your university hacked into your e-mail and read some private material? The e-mail (and therefore the cause of action) may technically "belong" to the university according to the terms of the acceptable use policy. How could you state a cause of action against your fellow student? What does this suggest about the limitations of private regulation?

5) As several cyberspace theorists have pointed out, regulation can even include technical standards set by engineers within industry-wide or proprietary standards-setting groups. A widely-cited example is the default cookie setting on Internet browsers. (A cookie is a piece of information sent by a Web server to a web user's browser that the browser's software is expected to save and to send back to the server whenever the browser makes additional requests from the server. It is essentially a way for a website owner to track the actions of someone moving through the website.) The existence of cookies obviously implicates privacy concerns, especially if the consumer is unaware that his or her movements are being followed.

Internet browsers such as Netscape Navigator do allow the user to change the technical settings to disable cookies. But why should the default technical setting be in favor of the server rather than the client? Is this a form of law-making or policy-making that is better be exposed to the disinfectant of fresh air through open democratic debate? Or is the technology too complex and too fast-changing for users to get involved?

Examine CyberPromotions v. America Online again. The court alludes to e-mail bombs, defined in note 1 a mechanism by which AOL gathered all unsolicited e-mail sent by Cyber to undeliverable AOL addresses, altered the return path of such e-mail, and then sent the altered e-mail in a bulk transmission to Cybers ISPs in order to disable the ISPs. Is this form of technical self-help measure a good alternative to legal measures? Will there always be a technological fix to an issue that could also be addressed through a formal dispute resolution system? Will that fix always avoid recourse to the formal dispute resolution system? (Note that this particular act of technological self-help did not avoid the lawsuit.) Does this regulation imply a ratcheting up process, by which technical measures are in turn defeated by ever-more sophisticated counter-measures? Is this form of dispute resolution an efficient allocation of societal resources? More or less efficient than the court system or traditional regulation? Does it leave too much of the normative policy component of law in the hands of engineers?

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