Juliet M. Oberding
Law Offices of Juliet M. Oberding
Media Design in Progress
"Liberty finds no refuge in a jurisprudence
(Southeastern Pennsylvania v. Casey 112 S.Ct. 2791, 2803 (1992))
This article analyzes whether the technical
characteristics of the Internet should create a separate legal jurisdiction,
and if a separate jurisdiction would be beneficial to the Internet. Jurisdiction is a legal term for the limitation on the
ability of a court to determine disputes. Generally, a nation state's jurisdiction only extends to individuals who
reside within the country or to the transactions and events which occur within the natural borders of the nation.
The question is whether the global nature of
the Internet naturally forms a separate legal arena. If a "natural"
jurisdiction exists, then should special laws be enacted to govern the Internet? Should a Convention of
Cyberspace be drafted similar to the separate international conventions governing the Law of the Sea and
Admiralty Law? In essence, the question to be resolved is whether the Internet needs a separate set of laws or if
current laws are adequate. We seek to answer these questions by exploring the nature of the Internet as a
community and self-regulating body. A critical focus of the inquiry reflects on the technological nature of the
Internet and the scientific traditions and philosophies that govern such technology.
The Internet Community
In 1969, ARPANET heralded the beginning of
large scale computer-mediated communications and what would
eventually be called the Internet (Rheingold, 1993). ARPANET was a creation of the Advanced Research
Projects Agency within the Department of Defense.
It is doubtful that the original developers
of the Internet fully conceived the extent of the networked communities
that would evolve from ARPANET. Howard Rheingold (1993) notes that those involved with the creation of
ARPANET did have visions of groups using the network for educational purposes. They referred to these groups
as interactive multi-access computer communities.
A little less than thirty years later, the
use of the Internet has grown tremendously. As mentioned in a recent legal
case, it is a place which is home to Tibetan monks and Icelandic fisherman (Thomas v. U.S, 1995). Individuals
from around the globe meet and discuss critical issues of science, law and philosophy. Users form friendships that
open up diverse cultures and social traditions.
Can the Internet be defined as a community? A community has been defined as:
"...a set of
persons involved in stable patterns of communication. Communities vary
widely in the
range of their interactions, the capacity of their networks, and the links between information and
material exchanges" (Mandelbaum, 1982).
Communities are also distinguished by lively
interaction and engagement on issues of mutual concern and the
well-being of communities contributes to the well-being of the commonwealth (Schuler, 1994). Such
communities have their share of the ills of society: jealously, gossip and anger (Rheingold, 1993). Communities
also create and enforce shared norms and values. Network communities can be caring groups in which members
share personal triumphs and tragedies. Professor Henry Perritt (1993) noted that:
part of the definition of a community is the method through which it expresses
obligation and enforces compliance. Rights and responsibilities are defined by custom as well as by
formal law, and enforced by group pressure or exclusion as well as by legal sanctions. Quaker
meetings, corporations and municipalities have distinctly different arrangements for making rules,
determining instances of noncompliance and imposing punishment."
Historically, laws were created through community
meetings wherein disputes were discussed and resolved
according to the norms of the community (Perritt, 1993). This idea has gained new ground in a technology-based
society. In Fall 1994, an open meeting was held on the World Wide Web by the National Performance Review.
Several thousand federal workers participated in the online meeting to discuss proposals for bureaucratic reforms
(Hurwitz & Mallery, 1995). The meeting illuminates the potential of the many-to-many form of communication
created by digital technology. Unlike the mass media era in which on-to-many communication predominated,
computer networks, and likewise network communities, allow for greater democracy and decentralization.
In 1969, the U.S. government sponsors of the
ARPANET considered the groups interacting on the ARPANET
to be communities. Yet prosecutors representing the same government now reject the notion of a cybercommunity
within the context of an appeal for criminal pornography distribution in Thomas v. U.S. (1995). Thomas was
found guilty of criminal pornography distribution after a Tennessee resident downloaded pornographic materials
from the BBS. In the appeal, BBS sysop Robert Thomas of Amateur Action BBS argued that the trial court
should have applied the community standards of the cybercommunity instead of the standards of the Tennessee
community where the material was downloaded. The U.S. government's position was that the Internet creates a
global community, and it is impossible to define community standards for such a large and diverse group of users.
The prosecution also relied on previous holdings of the U.S. Supreme Court which found that since the U.S. is
such a large country with a diverse populace there could not be a federal community standard (Thomas vs U.S.,
1995). The prosecution failed to recognize that the Amateur Action BBS is also a community similar to a town or
The U.S. has gone a step further in attempting
to prohibit pornography distribution on the Internet through the
recently enacted Communications Decency Act (1996). The new act met with widespread opposition, and was
the subject of heated debate on mailing lists such as Cyberia and other forums throughout the many communities
of the Internet (See ). A bill to repeal the Act has been sponsored by Senators Leahy and Feingold.
We assert that the Internet is clearly a networked
system of many communities. Within individual
cybercommunities, participants can create and define law applicable to their community. This is similar to any
association of people. Rules are created to govern the organization. Such rules generally set forth the rights and
obligations of the specified group. The organization attempts to solve problems internally and problems are only
sent outside when all internal channels of conciliation have been used.
Creating and Enforcing Community Norms
How do existing online communities express
obligation and enforce compliance? There are several mechanisms
for enforcing behavioral norms on the Internet, as noted in the proceedings of the National Academy of Sciences
Conference Rights and Responsibilites of Participants in Networked Communities (1993). These devices vary
from group to group. There are generally three methods of enforcement on the Internet:
1.Disconnect or exile rule
2.Employ peer or social pressures
3.Apply the law.
Mechanisms for enforcement vary from formal,
as in contract arrangements between users and commercial
providers, and informal, as in self-policing on discussion conferences. On conferences, mailing lists and BBSs, a
moderator often oversees the discussion (and may "disconnect" or "unsubscribe" a troublemaker). Exile of a
rulebreaker may not always work on mailing lists as technically adept users can re-subscribe from a new e-mail
account. The owner or maintainer of the mailing list may not catch the new subscription even if the trouble maker
uses the same name.
More recently, discussions on mailing lists
and BBSs have applied real world legislation when there is a violation
of a community norm. An example of this behavior is the recent U.S. case of Stratton Oakmont, Inc. v. Prodigy
Services (1995) The Stratton case revolved around an incident which occurred on "Money Talk" bulletin board of
the Prodigy online service. A subscriber to the bulletin board posted a message regarding the Stratton firm. The
Stratton firm considered the message to be defamatory and sued Prodigy for defamation.
Suggestions of application of real-world principles
of law is also apparent in discussions regarding copyright and
inlining of material on the Web (Norderhaug & Oberding, 1995). As described in the HTML Specifications (See
), inlining is a form of hypertext markup in which the creator of a Web page can embed other content such as
an image by using a textual reference describing where on the network the material is located. On most browsers,
the image will automatically appear as part of the page. Importantly, there is no copy made by the page creator:
the inlined material will be taken from the original source each time it is used.
The general norm has become to ask permission
before inlining. However, people sometimes inline without asking
permission. This transgression of community norms is generally met with a combination of social pressure on a
mailing list or conference, and threats of legal action.
It is difficult to determine where the crime
occurred, or in some cases if there was a crime. For example, a rape in
cyberspace occurred on the LambdaMOO. A participant on the MOO manipulated the software to use the
identity of another participant. A virtual rape might not be considered a crime under U.S. law prior to the
Communications Decency Act, but it might violate cybercommunity standards.
Online communities clearly maintain community
norms and have the ability to create and enforce rights and
responsibilities. Offenders are censored if they breach commonly accepted rules. The Internet contains a high
number of communities which make and enforce individual rules and obligations. Can these multiple communities
create the consensus for a single law of cyberspace and is it necessary to have one set of rules to govern the
whole online community?
The Consensus Issue
The creation of law in a democratic society
requires a consensus of the people. As pointed out at the National
Academy of Sciences Conference Rights and Responsibilites of Participants in Networked Communities, many
scholars believe that there can never be a consensus to support a common law for cyberspace. Contrary to this
position, rules are being created and enforced in the digital communities. These common norms include social
pressure where the offender is reprimanded by the group or community as opposed to an outside force. Behavior
is also being controlled by contract between users and commercial services in which the offender is punished by
cancellation of services.
Such common standards have historically formed
the core of the law. While there may be consensus as to the
current methods of enforcement on the Internet, the National Academy of Sciences Conference found that there is
no consensus as whether new legislation should be imposed on network communities by any nation state. Despite
the lack of cohesive thought regarding the need for new law, consensus building takes place regularly within online
communities. This is apparent from the informal creation of rules and enforcement of penalties. Such consensus
building within the network is the fundament of any future legal regime or regimes.
However, there is a dichotomy between the community
standards applied within the network as opposed to the
legal standards applied from outside the Internet community. A network community standard may be accepted
and followed by net citizens, but external legal standards can be flagrantly violated despite the fact that
wrongdoers may be punished by the nation state. When there is no fear of punishment from the authorities, the
nation state no longer has power to control the individual. Despite the wild reputation created by the media, the
network communities mostly consist of law-abiding people. Many of these individuals want to work toward
appropriate legal standards and within current political constraints.
Cyberspace is not a nation state. The community
standards of the many network communities are not a formal
legal system. There is a lack of consensus as to whether new laws should be created or if old laws can be applied
to the digital realm. However, rules are being created and enforced by individual communities. Although
community standards do not, alone, constitute a legal system, such standards create the basis for formal legal
systems. The existence of such norms is evidence of the ability of the social system to create law.
The Need for a Separate Jurisdiction
In a recent article in Communications of the
ACM, John Perry Barlow (1995) argues that the nature of copyright
law is such that it can be enforced globally. Many, including Barlow, have argued that changes to copyright law
proposed by the National Information Infrastructure White Paper will have a global impact. However, the nature
of jurisdiction is such that it is limited to the territorial boundaries of the nation. While copyright law is fairly similar
from country to country with noted exceptions, proposed changes to U.S. copyright law via the NII cannot be
asserted globally in the absence of an international convention or heavy political pressure by Washington
(Samuelson, 1996). Changes in U.S. law are limited to U.S. borders. As a result, crafty individuals could play a
technological version of forum shopping by picking and choosing where to locate servers in order to obtain the
best legal environment:
of the state's sanction... is an inverse function of the ease with which
order controllers can "exit" from the regime defined by those laws- by evading detection of
rule-violating behavior, evading the State-imposed sanctions for such violations, or somehow
withdrawing from the rule-making jurisdiction of the State as controller" (Post, 1995).
The mere possibility that individuals might
be able to escape the jurisdiction of one nation by relocating
computer-mediated information and services to another nation is an insufficient reason to create formally a
separate jurisdiction for cyberlaw. Certainly, there are some who would see this as a argument not to create any
type of legal system solely for online communication. However, this is not the case. U.S. law and the law of other
nations does extend to cyberspace assuming certain legal requirements can be met such as whether the person
would anticipate being brought into the specific court for a lawsuit. This is the first step in the jurisdiction analysis.
Many argue that if a person commits a crime in cyberspace, then he can be brought to court in the country where
he was located when committing the crime. The jurisdiction issue in computer-mediated communication is not so
simple, particularly if the victim is located in another country.
This blurs the meaning of the concept of "border".
Certainly, piracy of real ships and cargo on the sea is much
different from piracy of intellectual property on the Internet. One can usually determine when an act occurred on
the sea, but where and when does a specific act occur in cyberspace as opposed to real world? How would one
pinpoint the time and location of a given event without real world references? Jurisdiction may be an anachronism
in a borderless world where time and distance have little meaning (Katsh, 1995).
The method by which technology delivers online
communication changes the impact of the law. In the caching
example, copies are made to improve the efficiency of the system and are probably fair use under a copyright
analysis. Yet an argument can be made that these copies impede the ability of the Web page creator to earn
The companies that provide a Web presence for
business clients often derive income from their "hits" (i.e., the
number of times a Web page is accessed). Some large Internet service providers, such as America Online,
regularly keep a copy of frequently accessed Web pages on their own computers. When a page is cached, it will
only be requested once from the site even if a thousand people browse the page. As a result, the presence
provider will get a smaller hit-count to show to clients. This might create problems in collecting a revenue, which
would be considered by a U.S. court in analyzing a fair use claim.
Does cyberspace require the formal creation
of a separate jurisdiction? Probably not, as an informal separate
jurisdiction already exists based on the nature of network computer-mediated communication. This is evident in
1.Laws are being created
and enforced by cybercommunities;
2.The laws of the cybercommunities are generally inapplicable outside the online community;
3.The laws of the outside world are generally difficult to apply to the online world; and
4.The outside world must create new law to control the online world.
Caching is one example of the problem of applying
real world law to the internet. In order to deal with these
problems, steps must be taken by cybercommunities to outline the proper application of real world law to
technology. While there has been plenty of discussion on mailing lists such as CNI-Copyright, there have not been
any real attempts to develop a code for the Internet by legal scholars (See ). There are many questions which
deserve and require serious analysis to promote the progress of computer-mediated communication. Scholars,
technologists and lay people can work together to create effective guidance for courts and governments in the
application and creation of law.
The Rule Makers
One might be tempted to argue that no laws
should be created for the Internet. However, this would ignore the
fact that rules are already being created to govern specific communities in cyberspace. These rules range from the
contracts between service providers and users to the simple rules for participation in a moderated mailing list
Who should create the laws for the Internet?
The National Academy of Sciences sponsored a Conference in
1993 to investigate rule making in networked communities. Some of the issues considered regarding the rights and
responsibilities of network participants included: Who is liable when someone posts a defamatory message,
child pornography or copyrighted material on a public bulletin board? Debate is also occurring on these
issues and others on mailing lists, online forums such as Lexis Counsel Connect, usenet groups and newsletters
(see ). These are a few important issues discussed in the network society. Resolution of some of these issues
has occurred in U.S. courts. However, these court decisions may not always make sense within the technical
constraints of the digital network.
Recently, an organization was created to research
important network issues and make recommendations to
governments and other interested entities. This group, known as the Internet Law Task Force, can be the liaison
between the network community and the state. The Task Force is composed of a wide variety of individuals from
many backgrounds and will probably be more sensitive to community and technological issues. Peter F. Harter,
former executive director and general counsel of the National Public Telecomputing Network, noted in a recent
article that the Internet Law Task Force could be analogous to the Internet Engineering Task Force. The IETF is
a volunteer body that meets regularly to discuss and determine... technical standards (Harter, 1995, p. 10).
The group could go one step further and assist in conflict management. Conflicts could be mediated first within the
network community system prior to any legal action.
The Task Force is in a position to impact potential
legal issues without a separate jurisdiction. This group can
serve to educate legislative and administrative officials regarding the technical and network ramifications of any
pending legislation. Through the efforts of the task force, governments could avoid potential legislation which
would be detrimental to the future of the network.
"It cannot be
helped, it is as it should be, that the law is behind the times." (Oliver
1934 , p. 102)
The advent of computer-mediated communication
has created a new world with new rules. The change in the
presentation of information is not superficial but changes the culture and its institutions. The Gutenberg press
resulted in the creation of many institutions including copyright law (Katsh, 1995). The key to change lies in
understanding how a medium affects patterns in communication.
However, change in the medium does not necessarily
mean that a new single system of law must be created to
solve the problems on the Internet. Laws are already being created by cybercommunities. When the law changes
with every new event, then there is no law (Katsh, 1995). The law cannot be made to ride on the back of the
wind. Instead, the law should be like a sail; sturdy but flexible and able to navigate through use of the wind.
Groups such as the Internet Task Force can
develop norms and determine how to resolve conflicts in cooperation
with technologists, service providers and others. Such norms can be used as guidance for courts and
governments. Understanding technology is key to resolving the conflicts between law and technology. Efforts to
develop norms can bridge the gap between old laws and new technology.
 Cyberia-L, an Internet mailing list maintained by Prof. Trotter Hardy.
 The HTML Specifications regarding inlining
is located at
 CNI-Copyright is a mailing list on the
Internet. The focus of the discussion is copyright in general and usually
from a U.S. perspective, although there are participants from many countries. The participants are composed of
lawyers, law professors and laymen.
 There are many legal mailing lists, online
journals, seminars, newsletters, etc. devoted to the issues of
cyberlaw. Some of these resources are available from http://www.oberding.com/~juliet/resources.html
Helicopteros Nacionales de Columbia, S.S. v. Hall 466 U.S. 408 (1984).
Barlow, J. P. (1995). Property and speech:
Who owns what you say in cyberspace?. Communications of the
ACM, 38 (12).
Burk, D. L. (May 18, 1995). Jurisdictional
issues of the Internet. Conference on the Emerging Law of
Computer Networks (CLE outline available from the author).
Calder v. Jones U.S. 783 (1984).
Communications of the ACM (1995). Editorial policies. Communications of the ACM, 38 (4).
Communications Decency Act of 1996 47 USC section 223.
Creative Technology Ltd. v. Aztech System PTE ltd. 95 Daily Journal D.A.R. 9814
Eco, U. (1986). Travels in hyper reality. Translated
from the Italian by William Weaver. San Diego: Harcourt,
Brace & Company.
Elkin-Koren, N. (1995). Copyright law and social
dialogue on the information superhighway: The case against
copyright liability of bulletin board operators. Cardozo Arts & Entertainment, 13, 345.
Hansen v. Denckla, 357 U.S. 235 (1958).
Harter, P. F. (1995). Don't tread on me. On The Internet, Vol. 1, No. 3, July/August.
Holmes, O. W. (1934). Speeches.
Hurwitz, R., & Mallery, J C. (1995). The
open meeting: A Web-based system for conferencing and
collaboration. World Wide Web Journal (The Proceedings of the Fourth International World-Wide Web
International Shoe Co. v. Washington 326 U.S. 310 (1945).
Katsh, E. M. (1995). Cybertime, cyberspace and cyberlaw. Journal of Online Law.
Mandelbaum, S. J. (1982). Too clever by far:
Communications and community development. Communication, 7,
National Academy of Sciences Conference (1993).
Rights and responsibilites of participants in networked
Norderhaug, T., & Oberding, J. (1995).
Designing a web of intellectual property. Computer Networks and ISDN
Systems, 27, 1037-1046. http://www.ifi.uio.no/~terjen/pub/webip/950220.html.
Perritt, H. (1993). Metaphors for understanding
rights and responsibilities in network communities: Print shops,
barons, sheriffs and bureauracracies. Villanova Information Law Chronicle, http://www.law.vil
Perritt Jr. H. (1996). Law and the information superhighway. New York: John Wiley & Sons.
Playboy Enterprises, Inc. v. Frena 839 F. Supp. 1552 (M.D. Fla. 1993).
Post, D. G. (1995). Anarchy, state, and the
Internet: An essay on law-making in cyberspace. Journal of Online
Law, art.3, par. 29.
Rheingold, H. (1993). The virtual community
: Homesteading on the electronic frontier. Reading,
Massachusetts: Addison-Wesley Publishing Company.
Samuelson, P. (1996). Intellectual property
rights and the global information economy. Communications of the
ACM, 39 (1).
Schuler, D. (1994). Community networks: Building
a new participatory medium. Communications of the ACM,
Stratton Oakmont, Inc. v. Prodigy Services Co., No. 94-03163(N.Y. Sup. Nassau Cty. May 26, 1995)
Thomas v. U.S., Nos.94-6648 and 94-6639 (6th
Cir., Jan. 20, 1995), cited in Multimedia Strategist, 1 (9).