February 10, 1994

Dispute Resolution in Cyberspace



by David R. Johnson

        As more people spend more time (and money) communicating over the global
electronic networks, they will, inevitably, fight. Some of these disputes will
concern subject matters unique to the new electronic terrain: Is the user bound by
the rules of a system to which she sends messages indirectly? May users lawfully
send anonymous messages? Is a wrong committed over the network remediable,
and whose law says so? Do wanna-be users have an absolute right to enter any
given part of cyberspace? Did the e-mail message create a binding contract?  Did
the system operator have a right to view or disclose a particular message?
Who can tax an electron?

        The meta-question posed by all these novel types of disputes will be an
interesting one: Should the networks themselves evolve new and better ways to
resolve the disputes that arise in connection with their use?

        Disputes that have arisen over the networks are, demonstrably, different in
character, as well as subject matter, from more traditional fights. Like everything
else electronic, they happen more quickly than their terrestrial counterparts.
More people tend to be involved.  There are fewer facial cues -- and less chance
for a physical fist-fight.  They may involve people located in many different
territorial jurisdictions.  And they are more interactive in character -- more rapidly
evolving from one state to another.  These characteristics compound the
difficulties faced by traditional authorities in offering adequate dispute resolution
mechanisms.

        Suppose we created a new portion of the "law of cyberspace" to deal with
the means by which disputes arising in this new domain could be authoritatively
settled.  Such a doctrine would map nicely against the topics covered by our
existing jurisprudence -- but might incorporate novel rules. It would govern such
matters as (1) when a formal dispute is to be viewed as having been initiated; (2)
what "jurisdiction" (e.g., local sysop or international arbitration panel), is entitled to
resolve particular types of disputes; (3) who may argue a case; (4) what kinds of
evidence will be accepted; (5) what sources of law will be consulted; (6) what
procedures provide the equivalent of due process; (7) what appeals are available;
(8) what types of "persons" will be permitted to appear and seek rights in their
own name; (9) what time limits will bar actions; and (10) what means are available
to enforce final decisions.

        If there were a special set of rules applicable to the resolution of disputes in
cyberspace, it seems likely that those rules should reflect and respect the special
(and best) characteristics of the territory.  They should reward thoughtful
deliberation, rather than facilitating group emotion.  They should be based on
agreement among users -- based on clear and adequate disclosures -- to abide by
the applicable decision-making process. They should allocate decisions as
appropriate to "local" and diverse electronic jurisdictions.  They should respect the
distinctions between online and territorial issues -- avoiding attempts to overreach
by focusing on disputes unique to the electronic networks (and using this restraint
to argue for similar restraint on the part of existing authorities). They should stress
the right of the online community to change its rules after due deliberation. They
probably should enforce authoritative decisions with banishment, rather than
seeking remedies less appropriate to the medium.

        Will some "constitutional" principles emerge in any jurisprudence of dispute
resolution in cyberspace? What would such fundamental protections provide?
Perhaps the right to have disputes resolved by other citizens of cyberspace who
are familiar with the nature of the local electronic terrain -- and who will
understand the community values that infuse any given electronic act with
meaning.  Perhaps the right to express one's own view directly, without
intermediation, or perhaps, the right to a cyberlawyer.  Perhaps a right to have
disputes kept as private as possible in light of the nature of the issues in
controversy, or, perhaps, a countervailing right on the part of users to know how
formal disputes have been resolved.

        The only way such a doctrine will evolve, of course, is through the
experience of actual dispute-resolving institutions. There is already plenty of
anecdotal evidence that posses of users are prepared to try cases (and enforce the
result with an electronic hanging). Can we design institutions that do better
than that -- and embody an enlightened set of principles sketched out above? I
think we can -- and the lawyers on this system (Counsel Connect) are the most
likely founders of such a jurisprudence.