The Regulation of Cyberspace

Control in the Online Environment

Andrew Murray

• Publisher: Routledge-Cavendish
• Year: 2007
• ISBN:
  9781135310745
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Examining the development and design of regulatory structures in the online environment, The Regulation of Cyberspace considers current practices and suggests a regulatory model that acknowledges its complexity and how it can be used by regulators to provide a more comprehensive regulatory structure for cyberspace.

Drawing on the work of cyber-regulatory theorists, such as Yochai Benkler, Andrew Shapiro and Lawrence Lessig, Murray explores and analyzes how all forms of control, including design and market controls, as well as traditional command and control regulation, are applied within the complex and flexible environment of cyberspace. It includes chapters on:

• the role of the cyberlawyer
• environmental design and control
• online communities
• cyber laws and cyber law-making.

This book is an essential read for anyone interested in law and information technology.

Part I
Mapping the cyber-regulatory environment

Chapter 1

Coffee pots and protocols: The role of the cyberlawyer

Cyberlaw and the law of the Internet are not useful concepts.

Joseph Sommer

In the spring of 1994 I was a final year undergraduate student at the University of Edinburgh. One afternoon, while working in the library, Duncan, a friend and fellow student who was also a part-time software developer, suggested we visit the student microlab. The microlab was the Law School’s collection of IBM PCs and Apple Macs, all networked to form a local area network or LAN, and used mostly by students for word processing and instant messaging with friends. He said he had something new and exciting to show me: a wonderful new device that had just been installed. Despite Duncan’s obvious enthusiasm, I was quite sceptical. Duncan was an excellent software engineer and tended to get terribly excited by the most mundane of items such as a new PC chipset or an upgrade to the operating system. I saw myself as a lawyer not a computer scientist; as such I was rarely enthralled by such technology. Still, that afternoon he convinced me to come along. Once we were in the lab he logged on and brought up a grainy black and white picture on the monitor. I struggled to make sense of what I was seeing but after a few seconds I discerned that I was looking at a half-full filter coffee pot. I asked what was so exciting about this image. He told me I was looking at a live picture of a coffee pot in the computer laboratory at the University of Cambridge.¹ At first this didn’t really make sense to me. How could I be looking at a coffee pot in Cambridge? Duncan then explained to me that the computers in the microlab had recently been installed with a new piece of software called Mosaic, which allowed access to a new area on the internet called the World Wide Web. He went on to explain the basics of the web and as soon as his explanation was over I was hooked. This simple action of showing me that I could look at a coffee pot 400 miles away by typing a few characters changed the way I thought about computers and technology. I, like many millions before and since, became an instant devotee of the web.

Like most users of the web I was won over by its simplicity. Here was a truly accessible internet protocol (IP) for the non-technically minded. This simplicity led to an explosion of internet connectivity in North America and Western Europe throughout the 1990s.² I became a regular user of the web: it provided an excellent research tool for a young academic embarking on a fledgling career; it allowed me to keep in touch easily with my friends after graduation; and it provided an easily accessible source of entertainment. I didn’t consider it to be anything more than a useful tool. I certainly never considered at the outset of my academic career in 1996 that there was anything of particular interest to lawyers and regulators. I, like many others at that time, saw the web as a particularly sophisticated telecommunications tool and little else. It allowed users to enter into one-to-many communications through personal web pages, many-to-many communications through chatrooms and MUDs,³ and through email it allowed simple one-to-one communications.⁴ Thus the internet, and the web in particular, allowed us to carry out in a more sophisticated manner, the types of social transactions we had been carrying out for years through broadcasting, everyday social interaction and narrowcast telecommunications systems such as the telephone and the mail system. I thought, as most lawyers at that time were thinking, that the role of the regulator in such technology was limited to enabling the technology to function and to control antisocial practices. I saw regulators as having limited roles such as licensing ISPs, approving technical standards, consumer protection and content control.⁵

The early adaptors

Fortunately, not all academic lawyers were thinking this way. In the United States a body of research had grown up around the nascent subject of cyberlaw. Some early cyberlaw theorists saw the potential of the internet, and the web, to provide an independent and unregulated social sphere. To these cyberlibertarian theorists, cyberspace was akin to the old West. It was a place where individual freedom was secured by the environment of the space, where government interference was, by design, minimal, and where standards, norms and later laws (if any) would derive from the collective will of the citizens of cyberspace. The unlikely totem of the cyber-libertarian school was an ex-lyricist for the Grateful Dead named John Perry Barlow. As a young man Barlow took over a cattle ranching operation called Bar Cross Land and Livestock in Cora, Wyoming and in 1971 at the age of 24 he became a lyricist for the Grateful Dead. Barlow was both politically astute and a first-rate businessman, and when he sold his ranch in 1988 he threw his considerable energy into something that had become increasingly important to him: examining and questioning the role of technology and networks in society. He announced his arrival on the network scene in 1990 with two historical interventions. The first of these made Barlow famous within the technical community, but the second was more important to the question of the structure and values of the network. First, Barlow sealed his position in the internet story by becoming the first person to use William Gibson’s science fiction term cyberspace to describe the existing global electronic social space.⁶ More importantly though, in July 1990, he, along with the creator of Lotus 1–2–3 Mitch Kapor, formed the Electronic Frontier Foundation (EFF). The EFF was central to the development of the cyber-libertarian ethos. The founders of the EFF believed that governments and corporations would seek to control how this new technology would be used by individuals. The aim of the EFF was to seek to protect individual freedom against such intervention in the developing cyberspace. The role of the EFF was therefore to ‘defend our rights to think, speak, and share our ideas, thoughts, and needs using new technologies, such as the internet and the World Wide Web’.⁷ The EFF quickly set to work. Its first action was to assist a small games book publisher from Austin, Texas, named Steve Jackson Games, and several of the company’s bulletin board users in raising an action against the United States Secret Service claiming unlawful search and seizure.⁸ It followed this by assisting University of California PhD student Daniel Bernstein raise an action against the State Department claiming the restriction on the publication of encryption codes under the United States Munitions List was an unconstitutional restriction of his right to free expression.⁹ In both cases the EFF was successful, establishing important principles and freedoms for the internet community as a whole. Their work started to attract the attention of the legal community, and in particular two law professors, David Johnson and David Post. Johnson and Post embraced the cyber-libertarian ethos, which linked enthusiasm for electronically mediated forms of living with libertarian ideas on freedom, society and markets. They, like Mitch Kapor and John Perry Barlow, believed that many fundamental freedoms were inherently protected in cyberspace:¹⁰ that the inherent design features of the internet would render any attempts at state intervention futile.¹¹

The high point for the cyber-libertarian thesis was in early 1996. That spring two key cyber-libertarian papers were published. On 8 February, Barlow published his now infamous A Declaration of Independence of Cyberspace. This coalesced the cyber-libertarian belief in the unregulability of bits:¹² with Barlow claiming that real-world governments would find it impossible to regulate within ‘sovereign’ cyberspace.¹³ Then in May the Stanford Law Review published Johnson and Post’s key paper Law and Borders – The Rise of Law in Cyberspace.¹⁴ Here, they laid out for the first time a legal interpretation of the classical cyber-libertarian contention that regulation founded upon traditional state sovereignty, based as it is upon notions of physical borders, cannot function effectively in cyberspace. Instead, they argued, individuals may move seamlessly between zones governed by differing regulatory regimes in accordance with their personal preferences. Simply put, they viewed the internet as a medium that would foster regulatory arbitrage and undermine traditional hierarchically structured systems of control. Noting that ‘control’ emanates at the level of individual networks, they proposed that although forms of hierarchical control might be exerted over specific networks, the aggregate range of such rule sets was unlikely to lead to any form of centralised control of cyberspace. Accordingly, the ‘Law of Cyberspace’ would largely be determined by a free market in regulation in which network users would be able to choose those rule sets they found most congenial. Johnson and Post maintained that the various dimensions of internetworking could be governed by ‘decentralised, emergent law’ wherein customary and privately produced laws, or rules, would be produced by decentralised collective action leading to the emergence of common standards for mutual co-ordination.¹⁵ In other words, they believed that the decentralised and incorporeal nature of cyberspace meant that the only possible regulatory system was one that developed organically with the consent of the majority of the citizens of cyberspace.¹⁶ Their views were, though, about to be challenged by the emergence of a strong counter-argument within the legal community: the development of the cyber-paternalist.

That same year cyber-libertarian views were seriously challenged for the first time by the publication of a series of papers. Several commentators noted that its proponents appeared to base their arguments on an oversimplified understanding of social and political phenomena, and that they adopted a particularly right-wing view of regulatory systems. Early critics included Langdon Winner of the Rensselaer Polytechnic Institute,¹⁷ Reilly Jones of the Extropy Institute,¹⁸ and Joel Reidenberg of Fordham Law School. Despite sympathising with the view that internetworking leads to the disintegration of territorial and substantive borders as key paradigms for regulatory governance, Reidenberg argued that new models and sources of rules were being created in their place. To this end, he identified two distinct regulatory borders arising from complex rule-making processes involving States, the private sector, technical interests, and citizen forces. Each of these borders was seen as establishing the defining behavioural rules within their respective realms of the networking infrastructure. The first set of borders encompassed the contractual agreements among various internet service providers (ISPs). The second type of border was the network architecture. The key factor at this level, he claimed, were the technical standards because they establish default boundary rules that impose order in network environments. Reidenberg’s key contribution to the evolving debate at this stage though was his conceptualisation of a ‘Lex Informatica’.¹⁹ This draws upon the principle of Lex Mercatoria and refers to the ‘laws’ imposed on network users by technological capabilities and system design choices. Reidenberg asserted that, whereas political governance processes usually establish the substantive laws of nation states, in Lex Informatica the primary sources of default rulemaking are the technology developer(s) and the social processes through which customary uses of the technology evolve.²⁰ To this end, he argued that, rather than being inherently unregulable due to its design or architecture, the internet is in fact regulated by its architecture. Therefore, Lex Informatica could be seen as an important system of rules analogous to a legal regime. According to this view, internet-related conflicts and controversies reflect a state of flux in which Lex Informatica and established legal regimes are intersecting. He contended that in the light of Lex Informatica’s dependence on design choices, the attributes of public oversight associated with regulatory regimes could be maintained by shifting the focus of government actions away from direct regulation of cyberspace, towards influencing changes to its architecture.

The emergence of the cyber-libertarian/cyberpaternalist debate in the summer of 1996 led to a symposium on cyberlaw being held at the University of Chicago. During this symposium the distinguished law and economics theorist Frank Easterbrook made a powerful and challenging presentation.²¹ His paper, entitled Cyberspace and the Law of the Horse,²² presented to the assembled audience of cyberlawyers, stated that the subject did not exist. There was, he informed them, no more a ‘Law of Cyberspace’ than there was a ‘Law of the Horse’.²³ Easterbrook charged the audience as being dilettantes – meddling in areas they didn’t understand. He insisted that the best way to learn the law applicable to specialised endeavours, such as the internet, was to study general principles such as property, tort and contract. This gives rise to the question of whether Easterbrook is right. Instead of reading (and writing) textbooks on cyberlaw and cyber-regulation should we all be studying contract law, torts, property, intellectual property and criminal law? Bluntly, does cyberlaw exist as an extant subject worthy of academic study?

Cyberlaw and the challenge of the ‘Law of the Horse’

Easterbrook’s paper ignited an impassioned debate on the academic validity of the subject of cyberlaw and the role of cyberlawyers. His charge was quite different from that of the cyber-libertarian school. He did not claim, nor did not wish to claim, that cyberspace was to be treated as a separate and sovereign space due to the nature of ‘bits’: rather his indictment was that in debating the regulability of this place we had gone beyond the primary question of whether it was a suitable subject of specific regulation in the first place. Powerful advocates of cyberlaw responded immediately in an attempt to refute Professor Easterbrook’s challenge. The most compelling response was that of Professor Lawrence Lessig in his Harvard Law Review commentary The Law of the Horse: What Cyberlaw Might Teach.²⁴ This paper was somewhat of a tour de force and had the twin effect of announcing the arrival of Professor Lessig as the leading commentator in cyber-regulato...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Preface
• Acronyms and Abbreviations
• Part I Mapping the Cyber-regulatory Environment
• Part II Regulatory Tools and Digital Content
• Part III Regulating Cyberspace: Challenges and Opportunities