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Monday, August 29, 2005

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.

Comments:

I think the loss of attention to cyberlaw qua cyberlaw is a shame, because there are problems of technology law that are hard even to see as problems unless one takes the synoptic view. If one thinks only of specific doctrinal areas, one misses the parallels among them and also the convergence between them.

Thus, for example, Orin's own "Problem of Perspective" is a great example of the intellectual traction that parallelization provides. There is going to be a constant tension between thinking of legally-relevant aspects of online action from the user's perspective and from the perspective of wires and other physical entities. That tension pops up in online search-and-seizure, intellectual property, electronic contract formation, computer security, and many other areas. Unless one is also doing "cyberlaw," one misses the full generality of Orin's ideas.

The second reason in here is subtler. It's that the rise of computer technologies, in a sense, causes doctrinal collision. Tim Wu, for example, has argued that copyright law has become one of the largest determinants of U.S. telecommunications policy. The law on point in the cyber version of one doctrinal area can very easily become the law on point in another.

And this collision matters. It's anyone's guess which legal regime will wind up being most important in the regulation of search engines, and there are a lot of contenders: intellectual property, contract (and the tort of interference with contract), antitrust, telecom, privacy, and free speech are all plausible contenders. Again, in order to be able to frame the problem, one needs a perpspective that isn't tied to a particular doctrinal area. If one is only asking how trademark law will apply to search engines, one misses the larger point that maybe telecom regulations will, in effect, be making trademark decisions in the future.
 

Nonethess there's a difference between a futurist argument based on the assumption that something is 'new' and unlike anything previosly known- a vulgar anti-historical modernism- and the question of figuring out just what from our history this 'new' form should be considered an example of. We name by recognition.
 

D. G. is correct. the idea that the Internet is a wholy new virtual world is really just a futurist antihistoricism. but it is also, was also, a great advertising gimmick.

it worked perhaps because of ignorance -- no one would think that the telephone created a whole new world, or cable t.v.

still, the differences between the internet and other areas of telecomm. are sufficient to, maybe -- depending on the economyof resource allocation in a curriculum, and the expected effects of specialzation in the legal field and profession in general -- regard Internet law as a distinct field.

the key is to keep the First Amendment tradition an intregal component of Cyberlaw, which fits in with the generally free speech oriented nature of internet culture, to the extent it hasn't been already coopted by corporate power/greed.

the specialization of Intellectual Property has been a disaster. for most IP students and lawyers, the First Amendment is a footnote or a curious neighbor. despite the work of some to change this -- Lessig is one though his approach is far too moderate -- the property-rights movement has made IP into an imperial force, swallowing up territories of culture. let's hope that Cyberlaw professors learn from this mistake and make freedom a central concern in the field of regulation of the cyberspace.
 

I studied The Law of Cyberspace with Prof. Lessig in 1996, and we were very much attuned to issues of virtual space and culture, while the web was first getting started up and there was much talk of Usenet and MUDs.

I rememember reading Julian Dibbel's "A Rape In Cyberspace" as part of the class, for instance. There was very much a sense that we were dealing with new concepts of space and jurisdiction, that this wasn't just going to be the "law of the horse", with familiar legal concepts easily translated to new areas.

But you need to go back in time a bit -- by the time we assembled that 1996 University of Chicago Legal Forum volume and symposium on cyberlaw issues, we were hardly the first.
 

Some years ago, Rob Merges researched how law & technology was taught. He surveyed catalogs going back many decades and noted that topics were first treated as discrete (e.g., atomic energy law, biotech law) but then wound up being folded into the more traditional classes as the issue became more mature. This is likely to happen again, over time, with many "Cyberlaw" issues. Whether there will be enough left to sustain courses is unclear.
 

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Cyber law (also referred to as Cyberlaw) is a term used to describe the legal issues related to use of communications technology, particularly "cyberspace", i.e. the Internet. It is less a distinct field of law in the way that property or contract are, sportsbook, as it is an intersection of many legal fields, including intellectual property, privacy, freedom of expression, and jurisdiction. In essence, cyber law is an attempt to integrate the challenges presented by human activity on the Internet with legacy system of laws applicable to the physical world. http://www.enterbet.com
 

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