James Vaughn

Kennedy School of Government

The Internet was recently compared to the "Wild West" of America in the early 1800’s. It was for the most part a self-regulating frontier where the most powerful or the quickest survived. Now, claims Thomas Lipscomb of the Center for the Digital Future, the Internet is becoming more "civilized" as school marms and shopkeepers move into town. This calls for more organized protection and a code of law to protect them from harm. It has historically been the role of government to create and support a framework that balances the needs of all and protects the rights of the weak. Therefore, I contend that not only should we begin to apply a code of law-- some degree of "civilization," -- to the Internet, but that we indeed can do so.

The Internet exists in the third, perhaps even fourth, dimension. It is essentially a network of networks crossing multiple boundaries of geography, space and to a lesser extent, time itself due to the crossing of time zones and the rapid evolutionary pace it follows. We are all familiar with Moore’s Law which states in part that memory (capacity) will double in size every eighteen months. Imagine if the "Wild West" had followed this same path. Washington would have moved much quicker to impose rule and order or been faced with millions of square miles of saloons and brothels surrounded by the debris left behind by gangs stripping the land of natural resources before moving on to the next claim. But because most people can’t think beyond two-dimensional reasoning of point "A" to point "B," or beyond the terms of the physical properties of nature, it is difficult for them to comprehend the nature of the Internet and find its physical world analogies. The most common question asked by those unfamiliar with the Internet is: "Where does the Internet exist?"

Because people fail to understand the basic constructs of the Internet, most agencies are adopting a "hands-off" approach. In a recent Supreme Court decision (Zehran v AOL), the justices refused to hear a case involving the regulation of content on the Internet. Congress has passed the "Internet Tax Moratorium," to prevent any possible inhibition of the growth of commerce on the Web. And federal agencies are holding back on imposing regulations until they see if self-regulation by the players prevents many of the most commonly reported abuses.

As more people begin to enter the information superhighway the familiarity with the system increases, as do the reports of "injuries" to its users. We are hearing increasing reports of privacy violations, new consumer scams and the specter of children being lured away from home by pedophiles they meet while surfing the Net. Most people use the Internet without incident, but once our children begin to access "Betty’s House of Bondage," the public demands government to "do something!"

Despite the best efforts of cyber-libertarians to preserve a regulatory free frontier, we are beginning to see action being taken to impose order on chaos. The clearest examples are the attempts to regulate pornography on the Internet. Because everyone is familiar with attempts to stop pornography in our neighborhoods, it is easy to frame a debate to stop it in our cyberhoods. Note that even while it was placing a ban on certain types of taxation on the Internet, Congress enacted provisions to exclude pornographic web sites from this protection unless they meet certain code and architecture requirementsintended to prevent children from accessing those sites.

It is obvious that there will be some code of law and regulation applied to the Internet. The European Union (EU) has already passed a law regulating privacy. The key for public policy practitioners is to develop an analytical framework that will find the comparisons between cyber space and real space. This paper will propose just such a framework. First, I will explore the primary activities of the Internet and draw comparisons to the real world or "meat space" equivalents. I will then attempt to parse the space of cyber space and try to once again find the non-cyberspace equivalents. At that point I will pull together the activities and the space to create a paradigm which can be used by those unfamiliar with the Internet to better understand its various facets.

The first step in defining a framework for the Internet is to examine the Internet itself. One of the best ways to do that is to define the activities which take place in cyber space. Generally, in the broadest terms, activities fall under three categories:

• Information
• Community
• Commerce

Most people surf the net to gather information. The nature of the information varies. People look for weather reports, sports scores, stock information and other specific information that they are interested in at the moment. Currently, most of this information is free. It is analogous to going to the public library. In the early days of the Internet, the way the average user found information was to roam aimlessly, much like wandering through the stacks of the New York Public Library. One could find all sorts of information, but finding something specific or finding your way back was often difficult at best. Then with the advent of search engines, web sites became registered and users were able to consult the card catalogue of the web to narrow down the scope of what they were looking for.

There are some obvious differences here, but I would argue the differences are those ofdegree rather than substance. The information available now is dynamic rather than static and can be acquired in almost real time. Libraries increase their stock, but it takes longer. The nature of some of the information available is different, pornography being the most obvious, but the same information could be found by browsing through an adult bookstore or other outlet. The result is the same. People find the information they want but in a much shorter more efficient manner.

The copying of material found in the library has always been a problem. Material was copied by hand at first, and then with the advent of the photocopier it became even easier. Today, on the web, entire volumes can be copied at a click and stored in your own personal library. Laws were passed to address this problem, but were often difficult to enforce. Emerging technologies are addressing this problem and soon it will be impossible to copy or transfer any material the authors or owners of the property don’t want you to take.

People get information from a variety of sources. They read newspapers, which they buy, find, or subscribe to. They shop for it in bookstores and other retail outlets. The key here is, once information of value has been found it is then purchased or procured under some agreement between parties. The same situation can be found on the Internet. As information becomes encoded, it can be sold or transferred under purchase or licensing agreements. The key difference is the scale of material available and the convenience of shopping from your home – just as we do with catalogues or the Home Shopping Network. The end result is that although the degree of information available has changed, the method of doing it hasn’t really changed that much. We’ve simply added a technical application to the process.

People gather on line to exchange ideas and information. They meet new people and socialize according to shared interests. They exchange communication one-on-one as well as in groups.

In our earliest days as a nation, information was shared and exchanged in the market place, passing on the street or over the back fences of our homes. Letter writing was an art form and was the only way to stay in touch with friends and relatives scattered around the nation and the world. It was our general assumption that the contents of our mail was private, but we acknowledged there was little that could be done to prevent anyone from opening and reading it.

Later, advances in technology gave us the telegraph and the telephone. In the early days of the telephone, we required the intercession of a human operator to connect our calls, fully expecting to be overheard. Telegraph required an operator to take our messages and encode them for sending. There was very little privacy in either system without acquiring new technology or the ability to encode and send our messages ourselves. But advances in telephony did just that. Networks switched our calls for us allowing us a reasonable expectation of privacy in private exchanges. But this privacy became too much. There were abuses as criminal elements began to take advantage of the new technology. So, the government stepped in, and aided by the new technology of wiretapping was able to restore a balance between the privacy interests of the public and the public interests of the government.

The Internet provides us this same opportunity to exchange one to one with others in a fraction of the time and cost. Just like the early days of the telephone and telegraph, the packet nature of transferring information from place to place involves electronic eyes to eavesdrop on our conversations and to read our mail. And just like the telephone we have come up with new technologies such as encryption could allow us to exchange information with a reasonable expectation of privacy. It is indeed as if we had learned Morse code and could send our telegraph messages to someone on the other end -- what the receivers do with those messages is no different today then it was back then.

Law enforcement is already addressing the issue of encryption just as they reacted to telephones. An argument is brewing between those who want assurance their "phone calls" are confidential and those who want to be sure criminal activity is monitored and prosecuted.

Even with new technologies to communicate directly, we did not abandon our face to face interactions with each other as was predicted by the early Cassandras of the phone and telegraph. We are a nation of joiners and membership in community, fraternal and social organizations increased over the next several decades. We encountered friends and strangers in town squares, at the market, and at community centers and clubs.

Today we have chat rooms and news groups to exchange ideas, share gossip and meet new people. There have been support groups formed of those who share a common disease to disseminate the most recent information on treatments. It has allowed people to span geographic boundaries and reduce the sense of isolation. These cyber clubhouses are no different than their real world counterpart – a means to congregate people who share common interests or concerns.

But what about interactions with strangers in our community? Chat rooms provide for dialogue among wildly varied interests. Much like the stump speech in the Town Square, people wander through, pause if interested or move on to other destinations. Portals linking us to the World Wide Web bombard us with billboard advertising while our e-mail boxes are stuffed with flyers and handbills. The impact is no different than passing through Times Square on any given afternoon.

The true challenge will be in preserving and defining the nature of this public space. Will we create town squares or gated communities? We will address this question further on.

COMMERCE:

The third category of activity is among the fastest growing on the Internet. It is predicted that Internet commerce will grow by 1800% by 2002 totaling 94$ billion dollars in revenues. ¹ In the days before shopping malls and the Home Shopping Network, patrons gathered in farmers’ markets to make purchases. Haggling was common with fierce competition arising between merchants. Hawkers and pitchmen alternately cajoled and railed at people strolling through the market enticing them to try their products and service or just stop in for some entertainment or refreshment.

There was a public benefit to this arrangement and it was often the role of the government to regulate the environment, control the boundaries and set standards of conduct on both patron and proprietor.

Commerce on the Internet today is no different than the farmers’ market. The only complicating factor is that the market sits on the equivalent of the Four Corners spot in the West where four different states converge at one spot. Or perhaps like the new European Common Market with its multitude of states and conflicting local rules and customs. Imagine walking from one section of the market with one set of laws to another, which may have a completely different set of regulations. The trick is to work out an agreement among the "states" on which laws to apply where and on whom. This predicament is no different than that facing those who monitor and regulate world trade.

It wasn’t just commercial activities that took place in the farmers market. As a gathering place for a whole diverse array of citizens it became an important communal spot to exchange information and ideas. Anyone who wanted a wider audience knew to show up in the market. But over the years, we lost that sense of community in our places of commerce. We had television and radio and home delivered newspapers to provide us with information. If we wanted to speak with friends we could callthem directly. Merchants moved from public stalls into private storefronts. Later still, merchants and patrons were confronted with vagrants and crime and the storefronts began to converge into guarded fortresses known as malls to protect them from thesocial ills that impeded commerce. Because this space was private, rather than public, the property owners were able to impose restrictions on speech and other activities and were supported by the courts when they did so.

But the Internet has changed that structure again. Merchants are back in stalls in the markets. Once again, we have pitchmen hawking wares at the portals to the Web. We are bombarded with content and information on products and services we may have no interest in. Some markets, suchas AOL, have been able to erect barriers around the periphery of their market and control entry. But even that has changed somewhat. AOL’s new portal site allows anyone on the web to enter certain areas of their site.

The new issue facing Internet users is the definition of space. What is private space? Which areas are public? I believe that just as in the real world, there are different classifications for cyberspace. They are:

• Private
• Publicly private
• Privately public
• Public

This is easily defined, and has been defined by law over and over again. The Supreme Court has recognized certain areas are inviolably private and protected by the Fourth Amendment. These include our bodies and our homes and to a lesser extent certain areas of our businesses. We have come to expect that actions taken in those areas are not subject to public scrutiny or invasion. This right, while enshrined in the Constitution, has still been balanced against the public good and we have exceptions, under certain restrictions, which allow reasonable invasion of that privacy through search warrant, drug testing and other legal measures.

In cyberspace, private space should be defined as that space within your electronic device such as your PC, palm pilot, or private database. Just like your home and body, this space should be inviolable except under the same conditions we apply as described above. This space should also include your membership account with your Internet Service Provider (ISP). In essence, this is the "home" where you store your e-mail, files and other things you would keep under lock and key. Because the ISP provides you with a password, which you determine and is kept private, you have a reasonable expectation of privacy. In K-Mart Corp Store No. 7441 v. Trotti, 677 S.W.2d 632 (Tex. Ct. App. 1984) the court found the employer liable for $100,000 in punitive damages for searching an employee’s locker on the mere suspicion that the employee had stolen goods. The court relied on the fact that the employee had purchased and used her own lock to support a reasonable expectation of privacy. By analogy, it can be argued that a password (used to protect access) could support this reasonable expectation of privacy. ²

This area, while more difficult to define, has still been recognized by the courts. It includes our backyards and other enclosed personal property areas. In this area, we generally expect to have privacy but acknowledge that should someone want to, it would be easy to peer over the fence and observe our activities. Knowing this, as a society we tend to have very little sympathy for those caught in illegal or illicit activities who "cry invasion of privacy." This area would also include all private property of those engaged in public business such as merchants and firms.

This is the cyber-area, which like its real world counterpart is hard to define in cyberspace. The nearest equivalent might be web sites put up by private individuals or companies that are not linked to search engines. The space is semi-private in that anyone can stumble upon it by accident, but by virtue of not advertising it publicly or linking it to search engines you are defining the space as that which you consider to be "private" in the same manner you would reserve a patio or backyard to be accessible by invitation. Technology may allow one to put a lock and key on the space to keep out the public, but by its nature, one might be able to peer over the fence (through hacking) and observe the activities. This are would also include the code or private files of those who post their web sites with search engines. These "behind the counter" areas should expect reasonable privacy and unwelcome visitors (hackers) should be firmly led by the elbow to the front door.

 PRIVATELY PUBLIC

This area includes fitting rooms in department stores, public restrooms, offices, behind-the-counter areas in shops and other areas in which activities take place we as a society have deemed appropriate to be shielded from public eyes. This section would also include all government and public buildings that have private offices. Courts have also held that the lobbies of private buildings engaging in public activity would fall under this definition. It would include study carrels in public libraries.

Most of cyberspace operates in this area. Web sites that are posted with search engines whether by private parties, companies, or government agencies meet these criteria. There might be a huge difference though whether you are changing in a fitting room with a door or in the paned glass window of the lobby of your office building. Most Internet users don’t know going into a web site which is which. Patrons who peruse these sites should realize it is no different than wandering through a mall or browsing through a bookstore or newsstand. Some vendors may be videotaping you for security reasons. Most seem to feel their actions are comparable to studying in a carrel at the library. They think they will "see" or "hear" someone coming if they are perusing material they might not want someone to see them reading.

Molly Shaffer Van Houweling, in her paper State Action in Cyberspace, correctly points out that there are governmentally imposed property rules that allow private property owners to restrict certain activities. Her example was that of a private homeowner who has the right to exclude someone from giving a speech from his or her front porch. ³ I would argue that would also mean the right to chase me off the property entirely.

The challenge here is to create an environment, either through self-regulation or government regulation that will alert on-line users which space is which and then to apply the appropriate criteria. Merchants may videotape customers, but they maynot track down the identity of the user and then sell the information on their purchasing habits to others without their knowledge or consent. They may monitor patrons in the fitting rooms, but they may not disclose what they see (if it’s not illegal) or distribute images to outside parties.

On the flip side, customers or visitors may enter private space but may be required to adhere to a posted code of conduct. Protestors may enter the lobby of a building, but security has the right to remove them tothe street. Our tax dollars pay for city hall, but we can not enter the Mayor’s office with impunity.

This space is easiest defined in real space as any "outdoor" area such as streets, parks, or town squares. In essence, any place where people can interact by happenstance is public space.

In cyberspace, portals are the only areas we have which may fit the criteria as being public. There are no restrictions imposed (other than the technical ability to reach them). Their intent is to draw as many public visitors as possible, which increases the value to those advertising at the site. These areas are for all intents and purposes the farmers’ markets in cyberspace. Users pass through this space on their way to merchants’ stalls. They are accosted by advertising and perhaps, may someday be accosted by demonstrators. Although these "public spaces" are privately funded, the courts have held that there may be some imposition of public responsibility on company owned property when it operates as a public space. Once again, Van Houweling pointed out in her analysis of Marsh v. Alabama "the managers of the company town were behaving so much like a city government that their actions would be subject to affirmative constitutional scrutiny." ⁴ I would argue that portals function rather like a company town in cyberspace. They have the power to cut off communication and deny access through code. As such they fulfill an "exclusive public function" principle of state or public action.

Some may argue that because of competition factors, portals should not be considered to have an "exclusive" function. However, once I "move" into a community, it would not be defensible to say that if I felt my rights were being violated I could just move to another town.

Theother public space is the chat room. Just like the Town Square or other public commons area, this space is intended for the free flow of information back and forth. In these spaces we find both observers and participants. In some parts of the web, thechat room is truly public property while in others it more resembles the food court at the mall, where private security (Sysops) can escort unruly visitors to the property line. Bear in mind, I recognize there certainly are "private chat rooms" and as such those would fall under the definition of either a privately public space; (if anyone can enter without barrier other than awareness of it) or publicly private space; (if it is controlled by means of code or other barrier to access such as invited membership).

It may become the responsibility of government, as it has in the past, to intercede to carve out public space in the interest of the public good. As much as we support private property rights as a society, the courts have still maintained that thegovernment may preserve space for public use or access through private space to public areas such as coastal access to the ocean upheld by the courts in California.

We now return to the activities we outlined at the beginning and examine the space where they take place and what real space legal equivalents might apply.

INFORMATION:

The gathering of information takes place in the privately public section of cyber space. Anyone who surfs through sites orgathers news from news groups should realize that it is no different than perusing the newsstand on the corner or at a stall in the marketplace. Everyone should realize they could and are being observed. As on-line users become aware of this, the market may adapt by creating "store fronts" where visitors may be given a bit more privacy. Code and architecture may be developed to ensure that the only one who "observes" them is the proprietor/web master. Even then, just as with the video cameras, laws should be enacted which control how the tapes (in this case "cookies") are used. Patrons should expect their true identity to remain hidden behind a screen name, just as your face conveys appearance but not identity. Without your permission, information on the fact of your visit, the materials examined or purchased should remain confidential.

We have laws today which deal with keeping information gathering activities secret. Video stores may not release information on tapes rented. The Telecommunications Act of 1996 prohibits cable operators from collecting or disseminating information on which programs a subscriber views. In fact, with the advent of cable connected Internet services, the issue of privacy may be settled. According to Carl Kaplan of the Cyber Law Journal of the New York Times, the FCC paper "Internet Over Cable: Defining the Future in Terms of the Past," concludes that "the text and the history of the Telecommunications Act of 1996 and other laws support the view that some cable-based Internet access services could be regarded as ‘cable service’ – a legal classification that has significant consequences." ⁵

The information collected by the user is generally collected in a database either on the electronic device of the user or in a database provided by the on-line service provider. As stated earlier, this information should be considered located in the private space of the user. Access should only be through legal remedy. Obviously data bases and hard drives on equipment provided by employers to employees should be subject to the same laws as apply in their real world counterpart.

 COMMUNITY:

The interaction of individuals one on one or in a group tends to take place in real time in chat rooms or in direct one-to-one or one-to-many communications through e-mail or news groups.

In one-to-one and one-to-many communications exchanges the actual communication should be held in the same light as we do postal mail, telephone or telegraph messages—protected by current laws. The post office is forbidden to intercept and read mail without legal cause. Telephone companies may not monitor phone calls or record them. Private parties likewise are enjoined from these activities with stiff penalties applying for breaches of law. Still, for allthe provisions of law, users of e-mail should (barring the wide spread adoption of encryption) understand these communications take place in publicly private space. Some have compared e-mail to the sending of a postcard through the mail. No one can reasonably expect the contents to stay hidden. Although, in this case, the postcard is cut up into many pieces which are then sent through different carriers to arrive at the end address where they are reassembled.

Instant message communications in real time should be likened to conversations taking place over dinner in a public restaurant. Although the likelihood of anyone eavesdropping is low, it is still possible. New software marketed on the net captures and records these conversations and most users aren’t even aware it’s possible.

"Private chat rooms" would seem to fall under the category of privately public space. Rather like a conversation in the fitting room or restroom, although there is an appearance of privacy, the possibility of monitoring is real. Like the regulations that apply to these real world counterparts, it should be illegal to collect or disseminate the information gathered in these spaces.

Chat rooms, on the other hand, as stated previously are public spaces where constitutionalfreedoms of speech and assembly are strictly enforced. Even those privately maintained public spaces should be held to the same standards, as are their real world counterparts. The standards of law as applied in Marsh v. Alabama should apply here as well.

We should also look at some activities such as cyber protest, which have sprung up in recent times. Society needs to strike a balance between competing needs. Protestors need the right to express themselves, but private property owners have the rightto designate certain areas off limits. In the real world, protest happens in public space (such as on the street) which in the cyber world equates to the public chat room or news group. Protest may also occur in the lobbies of buildings. But they are still forbidden from the rear private offices that would violate breaking and entering or trespassing laws. Web sites, especially those sponsored by public or government agencies, need to determine through architecture which spaces are public and those that are publicly private. This will allow for freedom of expression while drawing boundaries for the players involved. Groups such as the Electronic Disturbance Theatre would be able to hold a "sit-in" in the "lobby" of a publicly private web site until "removed" by security. Or they may occupy the "lobby" of a privately public web site such as a government agency and be dealt with in accordance with the regulations that apply in that case.

Web sites of commercial entities have already been defined here as meeting the definition of publicly private space. But we should further parse the sites themselves down to define the various components of the web site. First, there is the public interaction space. This may be the lobby of a building or the retail floor space in a shop. These would be the pages you see by clicking on to a particular site. Behind these areas are the publicly viewed "behind-the-counter" areas. This might be likened to the code that is readily accessible, such as the HTML or Java sources. Although they can be readily seen, it is understood (and enforced) that patrons not interfere with these areas. Beyond those areas are the behind-the-scenes areas: Private offices, warehouses, and storerooms that are limited in access only to the authorized. These areas are equivalent to the databases and servers of the web site providers. It is understood these areas are off-limits and private.

Hackers defend their accessing these areas with freedom of speech arguments. But in the real world, we have held that just because you have the tools or the ability to pick locks does not give you the right to access private homes or offices. The key here is to define through code or architecture which parts of a site fall under which area of privacy.

Regulating commerce should fall under the same guidelines we use to regulate interstate trade. Further, we must take into account the fact that laws and regulations will operate in an international arena so they should be subject to the same criteria as other commerce agreements do. The general model here is that of a Common Market. Where the borders in cyber space are porous and open, allowing free travel among states the rules should reflect agreement among the parties. For example, the United Nations has a model law on electronic commerce that seeks to harmonize the commerce codes of legal regimes.

There are some who still try to claim the Internet is a borderless, frontier that defies any attempts to regulate it. But all one need do is to look at China’s Intranet version of the Internet where they attempt to carefully control the flow of information into and out of the country to see that when the technology is available it will be used to seal the borders.

While this may be extreme, it still raises the question: to what extent should the public, acting through their elected governments, attempt to impose standards or guidelines on the Internet as it grows and develops.

Most groups, usually led by business and trade associations or by the cyber libertarian founders want to see no regulation at all or at worst self-regulation. But as we have seen already, it is not going to be a case of if the government will regulate the Internet, but when and how. And this will be done despite the best efforts of the technophiliacs.

I believe the answer is increased transparency in the Internet structure. We need to carefully identify the regions of cyber space as private or publicly private. Web sites should post a means of identifying the space the user is entering. And where the architecture isn’t currently defined, the government should step in and mandate it. There is precedent for this. The American with Disabilities Act was adopted to mandate changes in the physical architecture of publicly accessible spaces to guarantee access to the physically handicapped. It was a case of the government seeking to protect a minority group of Americans to ensure they received fair treatment. The Supreme Court upheld this law, turning back challenges from private business that argued it interfered with their rights to conduct private activities.

Until that time, we need to impose short term restrictions on certain activities until society has adapted to the new technologies, space has been delineated and determined, and code and architecture changes adopted to relate these cyberspaces with their real world counterparts.

FOOTNOTES