A Brief History of Cyberlaw

Orin Kerr

As I mentioned earlier, I’m blogging this week about the new field of Computer Crime Law. To frame the topic, I want to start by discussing the broader topic of “cyberlaw.” Tomorrow I’ll explain how trends in cyberlaw point the way to computer crime law as a surprisingly distinct field.

When I went on the law teaching market in the summer of 2000, the field of cyberlaw was very hot. Most law schools felt they needed to hire a cyberlaw scholar, and students flocked to the new courses offered on “the law of cyberspace.” Although there were a few skeptics like Frank Easterbrook, the idea of a new “cyberlaw” was seen as quite plausible and also very exciting.

What explains the excitement about cyberlaw from the 1999-2000 period? Part of it was the Internet stock boom, which added a golden shine to all things Internet. But part of it was that the new cyberlaw scholarship promised to reflect and enliven the contemporary experience of being an Internet user. Most American Internet users in the late 1990s were Internet newbies with a dial-up connection to an AOL account, or something similar. Going online really did feel something like jumping onto the “information superhighway,” and using chat rooms and visiting websites really did feel kind of like entering a new space and traveling around a new online world.

The new “cyberlaw” scholarship resonated with a wide audience in part because it was very user-focused. Perhaps the most interesting example is the early work of Larry Lessig. Lessig viewed the Internet much as many users did back in those days, and his work seemed to promise a new kind of law based on that world. The Internet was a world of cyberspace with virtual streets, virtual meeting places, and virtual crimes. Lessig focused much of his attention on who set the rules for this new virtual space, and popularized the idea that “code is law” as a way of explaining the relationship between the decisions of the coders who defined the new space and the environment they created. As of 1999, at least, lots of people expected the new cyberlaw to be the new law that governed this new virtual world.

Now let’s fast forward to today. Most schools still offer some kind of Internet law course, but the ground has shifted considerably. Instead of focusing on Internet law as the law of a new virtual world, courses are more likely to feature a grab bag of interesting questions of civil and constitutional law implicated by the Internet. Intellectual property is one core area (particularly copyright); First Amendment law is another; jurisdiction and choice of law is a third. Although the different casebooks offer different approaches, my sense is that most are focused on covering a few areas of law in which the new facts of the Internet may change the assumptions of prior law.

Why the shift? There are many reasons, but perhaps the most important is that the user-focused approach to cyberlaw didn’t quite pan out. The user experience changed with the introduction of broadband and wifi; the Internet became integrated into our experience with the physical world rather than a place to go that was somehow separate from it. As users became more sophisticated and the range of Internet applications broadened, it became harder to see a user’s experience as quite as important as it first seemed. Without user experience as a reliable hook, the focus among courses in Internet law turned more to doctrinal disputes in specific areas of law.

In short, my sense is that Internet law has settled in a bit in the last five years. Its aspirations today are less grand and more doctrinal, and the key questions have shifted from virtual worlds to updating old rules given new technological facts in a few specific doctrinal areas of law.
Posted 10:24 PM by Orin Kerr [link]