The Great Debate — Law in the Virtual World
First Monday

The Great Debate - Law in the Virtual World by David G. Post and David R. Johnson

 


 

Should cyberspace (or subsets of cyberspace) be treated as distinct “places” for purposes of legal analysis? Does thinking about cyberspace in that way clarify or muddle legal doctrine and thinking about legal problems?

To the extent that online areas — and we are aware that it skews the answer to call them “areas,” but what else should we call them? — are persistent social spaces, they can and should be thought of as distinct “places.” Not, of course, the kind of “places” where one goes mountain–climbing, or plays soccer, or eats Italian food; but the kind of “places” where rules governing conduct can be made and can be enforced, i.e., “for purposes of legal analysis.”

For instance, many cyber–law professors meet at such a place — the “Cyberprof” listserv. It is a persistent social space; its existence continues even as individuals “come” and “go,” things can happen “there” while one is “away,” etc. Unless you define “place” to mean a geographically circumscribed three–dimensional area — in which case, obviously, cyberspace(s) are not places, by definition — the listserv has “place–ness” insofar as it can support the development and application of rules governing peoples’ conduct “there.”

It is not accidental that the language we use to discuss all of this reflects the place–ness of these places — “visiting” Web sites or chat “rooms,” etc. “Just go to our Web site for more information.”

Lest we be misunderstood on this point (as we have been on numerous occasions in the past), this does not mean that the Cyberprof listserv is a “sovereign state,” or a “separate legal regime,” or anything of the kind. Lots of places — the neighborhood where I live in Washington D.C., the local public library — don’t have, for any number of reasons, separate law–making/law–enforcing status.

But they can. And so we need some sort of a theory to decide when they should, and when they shouldn’t.

Thinking about cyberspace communities as potentially separate law–making and law–enforcing places is a clarifying conceptual move for two reasons. First, because the characteristics of online spaces and online conduct will often make it inappropriate to apply the rules governing “similar” conduct offline. For example, a single use of a brand name online can give it instantaneous global presence; we might, therefore, want the rules regarding trademark protection to be different online than off, to take that rather significant difference into account. Similarly, the ease of collaborating online (compared to off–) should, perhaps, be reflected in our laws regarding the “authorship” of creative works.

Second, thinking about cyberspace communities as potentially separate law–making and law–enforcing places will help clarify the profound jurisdictional muddle that cyberspace presents. The alternative — that the answer to the question “whose law must I obey” will continue to be “All of the 140 or so different legal regimes promulgated by the 140 or so different sovereigns that have a plausible claim to make the rules for the people with whom you might be interacting” — is unsatisfactory, providing neither guidance nor order nor predictability; it may make sense to the law professors, but it doesn’t make much sense, we suggest, to the individuals to whom that answer is given (and on whom, ultimately, the responsibility for law–making must rest). As online interaction becomes increasingly globalized, it will make increasing sense to talk of the (unitary) law of the “place” instead.

Under what circumstances can territorial sovereigns legitimately apply their law to the cyberspace conduct of “extraterritorial” actors?

The key word is “legitimately.” Governments “derive their just power from the consent of the governed.” That it is often difficult to determine whether consent has, or has not, been given does not obviate the principle: Territorial sovereigns can legitimately apply their law to the conduct, online or off–, of those who have consented to the application of that law to them.

We take it that there is no argument about that. There is disagreement about whether, and in what circumstances, territorial sovereigns may apply law legitimately to those who have not consented to its application to them. Some — those in what has been called the “Cyberspace Unexceptionalist” camp — say: territorial sovereigns may legitimately apply their law, the absence of consent notwithstanding, to all whose actions have “significant effects” on people or things within the sovereign’s territory.

Nonsense — and pernicious nonsense, to boot; the fact that it is set forth in the Restatement of Foreign Relations does not make it otherwise. To be sure, there are circumstances in which a sovereign may legitimately take action against extraterritorial, non–consenting actors; we certainly recognize that territorial sovereign X may legitimately take action against a citizen of Y who fires bullets into X from outside X’s borders, whether or not the gunman “consents.” But that is not a case of X “applying its law” to the conduct of the extraterritorial, non–consenting actor; that is the application of force, an act or war. Acts of war are legitimate, in certain circumstances, and we could engage in a lively discussion and debate about what those circumstances might be; but whatever one’s position on that question, it is self–evident that something considerably more substantial than a “significant effect” on persons or things within a sovereign’s territory is required by way of justification.

If this were not clear in realspace, it is, or will become, clear in the online world, where the “effects” of online actions can be felt everywhere, instantaneously; in that world, the Unexceptionalist position amounts to a multilateral declaration of war — the Hobbesian war of all against all.

Does the existence of virtual worlds change the likelihood, or desirability, of the emergence of non–territorially–based laws in cyberspace?

This one’s too easy! Virtual worlds clearly change (in a positive direction) both the likelihood and the desirability of the emergence of non–territorially based law, because they have clearer boundaries, and more obvious persistence as distinct social spaces, than other online spaces.

There already have been, and there will surely be an ever–increasing number of, disputes among virtual world participants involving assertions of in–world “wrongdoing” involving in–world assets ...

There already have been, and there will surely be an ever–increasing number of, disputes among virtual world participants involving assertions of in–world “wrongdoing” involving in–world assets, and as the number of transactions involving virtual property, and the value of that property, increases, it is inevitable that participants will assert that some of those transactions are unreasonable, or unfair, or in violation of some agreement between the participants, or otherwise harmful. Law — predictable and enforceable rules about the propriety or impropriety of certain actions — has enormous value in such circumstances, and will, we predict, emerge in those environments. But we predict that territorially–based law will not play a significant role in resolving those disputes; it will prove too complex (e.g., to determine which body of territorially–based law applies) and too expensive (e.g., to track down the real–world identity of the purported wrongdoer and the forum in which a remedy can be effectively granted).

Nor, we would suggest, should territorially–based law play a significant role in resolving these disputes, insofar as its relationship to the participants, to the transactions, and to the context in which the purported wrongdoing has taken place is more arbitrary, and less organic, than the law that can emerge from the participants themselves.

Does the nature of the boundaries between cyberspace and realspace make the development of distinct legal regimes or rule–sets impossible? Inevitable? Something in between?

Hard to say. Clearly, the nature of the boundaries matters significantly for determining the extent to which distinct rule–sets in cyberspace can evolve from, and coexist with, those that are applicable to real world conduct. In the natural world, new information–sets (“species”) can emerge and cohere more easily the more impermeable the borders, and the less likely the interchange of information, between them — what the biologists refer to as “allopatric speciation.” Law, too, consists of self–replicating information–sets, each with a “meta–narrative” that must be continuously repeated and believed in order for a legal regime to continue to exist. While the boundaries between conduct off–line and on– will undoubtedly affect the extent to which distinct legal regimes can develop, we lack a coherent theory of exactly how that process works, and the kinds of boundaries that might foster, and the kinds that might discourage, the drifting apart of the legal stories we tell each other online from the legal stories that local geographic communities tell each other.

So while it is clear that the boundaries between cyberspace and realspace are changing over time, it is much less clear how the changes will affect the development of these competing narratives. In some ways the boundaries are becoming more and more permeable each day; Web browsers in our telephones linked to our iPods, Google Desktop, VOIP, and any number of other applications have us jumping back and forth across that boundary innumerable times every day.

At the same time, however, the boundaries are becoming clearer and less permeable in other ways. Nobody in World of Warcraft, or Second Life, thinks that he or she is in Kansas. As online spaces become more immersive and multi–dimensional, they break the meta–narrative of territorial legal regimes with respect to online actions, and it becomes much easier for participants to conceive of them as separate spaces, and easier to perceive a demarcation between the real world and the cyberspatial one(s).

Are there sources of law applicable to conduct in cyberspace that are distinct from those applicable to conduct in real–space? What might they be?

Yes. Intermediaries (and even individuals) hosting online spaces can establish rules as a condition of entry or as a condition of continued possession of required forms of identification (or working passwords, registrations in namespace databases, etc.). In addition, the collective action of groups deciding what online areas to visit, or what areas to leave, creates a “marketplace for rule sets” that can shape the contours of applicable rules over time. Moreover, groups of people vouching for each other (and agreeing to stand good for harms caused by members) can effectively enforce rules against members and increase trust and reputation for all members in dealings with third parties. The model for this may be Icelandic law, in which clans compensated victims of unjust actions by their own clan members — allowing social order to increase without the benefit of a centralized state.

Is the self–ordering of participants in cyberspace transactions preferable to the imposition of rules by territorially–based sovereigns? Why (or why not)?

Yes. Individuals selecting the regimes (rule sets) they want to abide by online are presumptively better than states at knowing which rules will be maximally empowering. As long as the net provides means to avoid contact with (or harm from) those following rules with which you don’t agree — another instantiation of the “boundaries” problem — differing values can co–exist. And the heterogeneous composite of differing rules applicable to different areas of the Internet will better “fit” the values and preferences of everyone concerned — because there is no need for artificial harmonization and no occasion for a race to the bottom. The only minimum requirement is for technical (or other) means to discourage “non–congruent” regimes — those that systematically impose harms on groups whose well–being is not taken into account in formulating their rules.

Does the existence and behavior of ICANN support, or contradict, the original hypothesis that cyberspace can be, and should be, treated as a separate legal sphere?

We may well come to regard the development of the UDRP as the first instance of a true cyberspace–specific legal regime.

On the one hand, the UDRP (Uniform Domain–Name Dispute Resolution Policy) demonstrates that effective global dispute resolution (and enforcement of decisions) can be conducted under a cyberspace–specific regime with special application to online conduct — a “separate law of cyberspace,” if you will. We may well come to regard the development of the UDRP as the first instance of a true cyberspace–specific legal regime. But on the other hand, ICANN has not yet demonstrated its ability to take seriously the idea of “consensus” — which might provide a solution to the online subsidiarity problem (the problem of deciding when to make rules globally and when to allow local community–based decision–making).

Under what conditions (if any) should existing sovereigns defer to an emerging law of the Internet? Under what conditions (if any) might they actually do so?

Sovereigns should allow their citizens who wish to travel to online spaces and, while there, to be governed by the rules applicable there, provided that those rules don’t allow the online spaces to become havens for actions causing substantial harm to outsiders. Just as governments now defer to private ordering by organizations of all kinds that primarily “govern their own affairs,” they will be persuaded to defer to congruent online regimes — because this will allow the resources of local governments to be devoted to the real world problems only they can solve. End of article

 

About the authors

David Post is currently the I. Herman Stern Professor of Law at Temple University Law School, where he teaches intellectual property law and the law of cyberspace. He is also a fellow at the Institute for Information Law and Policy at New York Law School.

Trained originally as a physical anthropologist, Professor Post spent two years studying the feeding ecology of yellow baboons in Kenya’s Amboseli National Park, and he taught at the Columbia University Department of Anthropology from 1976 through 1981. He then attended Georgetown Law Center, from which he graduated summa cum laude in 1986. After clerking with then Judge Ruth Bader Ginsburg on the D.C. Circuit Court of Appeals, he spent six years at the Washington D.C. law firm of Wilmer, Cutler & Pickering, practicing in the areas of intellectual property law and high technology commercial transactions. He then clerked again for Justice Ginsburg during her first term at the Supreme Court of the United States before joining the faculty of, first, the Georgetown University Law Center (1994–1997) and then the Temple University Law School (1997–present).

David Johnson is a graduate of Yale College (B.A. 1967, summa cum laude) and Yale Law School (J.D. 1972). In addition, he completed a year of post–graduate study at University College, Oxford (1968). Following graduation from law school, he clerked for Judge Malcolm R. Wilkey of the United States Court of Appeals for the District of Columbia. Mr. Johnson joined Wilmer, Cutler & Pickering in 1973 and became a partner in 1980. He recently retired as a partner of WCP and is devoting substantial time to the development of new types of “graphical groupware” software products. His previous legal practice focused primarily on the emerging area of electronic commerce, including counseling on issues relating to privacy, domain names and Internet governance issues, jurisdiction, copyright, taxation, electronic contracting, encryption, defamation, ISP and OSP liability, regulation, and other intellectual property matters. He helped to write the Electronic Communications Privacy Act, was involved in discussions leading to the Framework for Global Electronic Commerce, and has been active in the introduction of personal computers in law practice. Currently, he is a Visiting Professor at New York Law School where he teaches Cyberlaw.

 


Editorial history

Paper received 13 January 2006; accepted 15 January 2006.


Copyright ©2006, First Monday

Copyright ©2006, David G. Post and David R. Johnson

The Great Debate — Law in the Virtual World by David G. Post and David R. Johnson
First Monday, volume 11, number 2 (February 2006),
URL: http://firstmonday.org/issues/issue11_2/post/index.html





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