June 28, 1994

The Future of the Net - As It Pertains to Lawyers



By: David R. Johnson


        I won't pretend to predict the future of the internet as a technical matter. We
can all see it growing, interconnecting with more and more networks, and
developing more user friendly interfaces.  It (or a lineal descendant) will clearly
become increasingly important to everyone who uses it -- and lawyers will use it
because it is important to others and contains information they need for their
professional tasks.  That much is clear -- and the non-obvious prospects for
technical development are beyond my ken. But I do have some views on how the
net will develop with respect to its relationship to the law. I'll set forth those views
below in the form of ten hypotheses.

1. More Newbies.  As the net grows, there will be an increasing percentage of
participants who have no prior experience with computer communications or net
culture, don't know who they are talking to or where they are, and don't have
complete control over what they are doing. This will lead to more disputes.

2. More Commerce.  As is obvious to all concerned, there will be more commercial
transactions, as opposed to information barter, on the net. This will lead to a new
set of questions regarding electronic contract formation. It will also lead to more
disputes.

3. More Connections.  As the internet interconnects more and more networks,
there will be an increasing number of boundaries that link and separate private and
public spaces. This will create a need for rules and special conventions to warn
users when they cross a boundary. It will strain privacy protections and create
new issues regarding sysop responsibility for the contents of messages that cross
these boundaries. It will also lead to more disputes.

4. More Standards and Conventions.  As our collective experience with network
based messaging increases, we will of course develop conventions and shorthand
rules and other ways of signalling understanding of context with minimum data
transfer.  These emerging conventions will help experienced users know when they
have entered into an agreement, what kinds of protections to expect from others in
a particular place, and what kinds of services are offered by various parties.  They
will help to determine what actions are reasonable in any given context. They
will also lead to more disputes.

5. More Significance.  The net will become more important to more people, as they
use it for business and increasingly important personal transactions. This will make
disputes over access rights and exclusion much more likely.

6. More Use.  Use of the net leaves electronic footprints. As more people use the
net more often, it will become easier and easier to track them through this data.
This will intensify disputes regarding protection of privacy.

7. More Effective Use.  A combination of software advances and simple learning
will make it easier for people to use the net to greater and greater effect.  To be
sure, information overload will slow this -- but filtering and other new techniques
will counteract this adverse effect of interconnection.  As it becomes possible for
individuals and small groups to have a greater impact on the world, via the net,
there will be pressures for more regulation of those activities. And, where
regulation is feasible and much desired by some interests, there will be an
intensification of jurisdictional disputes.

8. More Persons.  You probably think you're in for three more reasons why the net
will create more disputes. But I do have some positive projections.  The net will
make it easier for people to collaborate and, I believe, we will eventually figure out
how to allow groups of people to form, run and own new corporate entities by
means of action taken entirely through the net.  These new electronic corporations
will be allowed to own property and take action in the real world on behalf of their
owner/managers. They will be legal persons. And they will change the very nature
of human collaboration.

9. More Persons - 2.  Because the net allows extremely flexible means of
identifying message senders, it will facilitate the creation of pseudonymous and
anonymous messaging that brings into question long established notions of human
identity. We will be free (within limits) to put on and take off various personae. We
will, of course, need to rethink basic questions about authenticity, identity and
responsibility, in this context. This aspect of the net may be fun, or scary,
depending on how it is allowed to develop.

10. More Order.  I guess I have to close this list with the observation that there is
sure to be more order in the future on the net. Maybe more law and order.  There
could hardly be less. To comfort those who might mourn the prospect of the loss
of spontaneity and formless emergence that characterized the early electronic
frontier, some have postulated the possibility of preserving some "electronic
wilderness". Even that will, however, be set aside and protected by law.

So, as you can see, I have no doubt that the future of the net importantly involves
lawyers. Some, everyone knows, have already arrived there -- and have hardly
distinguished themselves in the process!  As we contemplate the inevitable
emergence of new disputes and some new creative opportunities, all of us who are
lawyers should look carefully at the wonderful things that have been accomplished
on the net without any traditional law -- and attempt as best we can, consistently
with the constraints of growth and newbies and commerce and boundaries, to
preserve the spirit of the old net as we try to help build the new one.