May 17, 1994

The New Case Law of Cyberspace


By: David R. Johnson



        It seems increasingly clear that the new electronic networks need a special
form of law and some method of publicizing and enforcing that law. Newbies in
Arizona threaten to distribute advertising widely, despite vigorous objections from
recipients, and claim their acts are "lawful" because there is no law.  Allegedly
harmed parties are beginning to sue in terrestrial courts for defamation by
electronic mail, and may produce precedents that don't take adequately into
account the right of reply that exists here. No one knows how to find the limits of
copyright claims, or fair use, on the net. And there are many questions, such as
those involving rights of access, for which existing legal precedents provide very
little guidance.

        So there will likely be a new law for the net. But one key question yet to be
addressed is what form that law should take. There will be rules articulated by
sysops -- the equivalent of statutory law. And there will be enforcement
mechanisms -- the local sheriff will show up. But how will we apply the law to
determine whether to enforce the rules to any particular alleged wrongdoer? And
how will we use these concrete decisions to inform later determinations?  Can we
use the net itself to perform adjudication and to create a "common law?"

        If we want to develop principled consideration and articulation of widely
shared values, rather than mob rule and lynchings, we need to capture some of the
best attributes of the networks -- conversation leading to consensus -- in reacting
to particular cases and controversies. There may be models for this. The original
jury system was, after all, a means of allowing discussion and decision among the
local affected community, including witnesses, under the eye of the representative
of the sovereign.  There is already intense discussion on the networks of any
alleged wrongdoing. It would take very little additional formality to cap that
conversation with something in the nature of a group decision.

        Some say modern law arose from the ability of printed casebooks to abstract
cases and reduce them to a limited set of factors and principles. I'm not sure how
we would accomplish that on the net -- or whether we should try. Maybe the best
"record" of a case is simply the transcript of the network-based discussion of
it. (Presumably, the "citation" to the case will take the form of a "universal
resource locator" pointing to the place on the network from which the transcript
can be retrieved.) If we don't think "neutrality" is essential to adjudication online,
we might take the final decision of the group involved in that discussion as the
"result" in the case. Sysops could agree to honor the decisions of online limited
access discussion forums that achieve legitimacy by producing thoughtful and
well-justified transcripts. We will have a network law made up of much-retold
stories and discussions, rather than of "cases" codified by catalogers.
    
        Will the net become precedent-bound as these stories and
discussions-to-decision proliferate? I doubt it. One essential feature of any law of
cyberspace is the need to take into account the particular expectations fostered by
the custom of the local area. But maybe we should fear that it will be hard for
users to figure out what the law is.  There won't be treatises, at least for a while. 
No licensed bar, yet, to dispense advice. Perhaps this uncertainty about
groundrules accounts for the typical behavior of new users, who generally hang
around a new discussion group for a while before beginning to type. But this
diversity of local rules, and uncertainty about them, is what makes travel so
fascinating.

        Perhaps the first principle of the cyberspace migrant will be to show a certain
respect for local custom. A first principle of most areas of cyberspace will be to
help newcomers learn the local rules and to show some understanding and
compassion when ruling on a first offense.