The Case Against Internet Law
Jeffrey H. MATSUURA <email@example.com>
Jean-Pierre AUFFRET <firstname.lastname@example.org>
Legal institutions in many parts of the world have become preoccupied with creating laws and regulations directly applicable to the Internet and its applications. This trend is driven primarily by the following: misunderstanding of the Internet and its impact; fear of the Internet's potential impact; and desire by many public officials to be associated with the Internet. If allowed to continue, this trend is likely to result in the creation of unnecessary legal constraints, lead to inconsistent application of laws and regulations, and impede the development of commercial applications for the Internet. A more appropriate relationship between legal institutions and the Internet is one which views the Internet as a powerful tool of society, but not a target for specific legal control. As the Internet develops, every effort should be made first to apply existing legal principles to the new factual context presented by the Internet before attempting to craft new principles specifically for the Internet. It has not yet been demonstrated that there is a need for "Internet law." Instead, our legal institutions should endeavor to understand the Internet and its applications thoroughly enough to enable those institutions to apply existing legal principles and precedents to the novel fact situations presented by the Internet. The Internet should not be held "above" or "outside" of current legal requirements, but it also should not be the specific target of new legal constraints aimed directly at it.
Many legislators, regulators, judges, and other members of the legal community have embraced the notion that the development of the Internet and its associated commercial applications require the creation of a new legal discipline, "Internet law." This philosophy is based on the premise that existing laws, regulations, and conventions are inadequate to address effectively the challenges to society presented by the expansion of the Internet. Proponents of this position contend that new laws and regulations directed specifically toward the Internet and its use must be implemented in order to protect the public interest.
There have already been many examples of this approach. In the United States, for example, the Communications Decency Act of 1996 (the "CDA") was enacted. This statute applied the legal principles that the Congress and the executive branch had developed over the years to regulate the transmission of obscene and indecent material specifically in the context of computer networks and the Internet. Challenged in the federal courts, the provisions of the Act defining indecency and the standards to be applied to determine indecency were determined to be unconstitutionally vague. Additionally, the courts expressed concern that the statute was overly broad in its scope. On appeal to the U.S. Supreme Court, the determinations of the lower courts were upheld, and the challenged provisions of the CDA were deemed to be unconstitutional and thus invalid.
Other provisions of the CDA have also been challenged in the U.S. courts. Those cases are currently pending. As to the obscenity and indecency provisions declared invalid by the courts, several members of the U.S. Congress are preparing legislation which they hope will regulate Internet content in a manner which would withstand judicial review. Similar legislation directed specifically toward Internet content has been enacted and is under consideration in many individual states in the U.S.
The United States is not alone in this process of directing new legal requirements specifically toward the Internet. For example, China has recently announced new regulations specifically targeting Internet content and use. The Chinese government has indicated that these new regulations will be applied to all of China, including Hong Kong.
Thailand is considering the Internet Promotion Act, which would require government licensing of Internet service and content providers. There is concern that the licensing process would include significant content and access controls.
Ireland's Working Group on Illegal and Harmful Use of the Internet has been reviewing a variety of potential forms of regulation specifically aimed at Internet use. Again, this is an example of consideration of wide-ranging legislation targeted directly at the Internet and online activities.
Even in countries that are actively embracing the potential commercial appeal of the Internet, legal initiatives aimed directly at the system are developing. For example, Singapore has established a licensing system which requires Internet service providers and publishers of certain types of online content to register with the government. Recently, Singapore's Ministry of Information and Arts has announced plans to filter all national Internet use through government proxies to prevent access to "misleading" and "dangerous" material online.
Last year, Germany enacted its Information and Communications Services Law, specifically covering issues associated with liability for Internet content. The legislation addressed restrictions on forms of online content and potential liability of Internet service providers resulting from that content.
An illustration of the complex context associated with Internet expansion is provided by Malaysia. One of the nations most aggressively pursuing enhanced commercial use of the Internet, Malaysia is investing heavily in the development of its "Multimedia Super Corridor." Malaysia is implementing a legal and commercial framework designed to attract and foster the expansion of all information technologies (including the Internet), yet it also has a history of applying constraints to media content. The manner in which Malaysia (and all other countries that are attempting to foster economic development through increased commercial use of the Internet) apply their legal institutions to reconcile that objective with their broader social and political traditions and priorities will have a profound impact on the pace and scope of the development of online commerce.
In each jurisdiction in which there has been a rush to direct legal requirements toward the Internet, there appears to be some combination of the following forces at work inciting the action. One such force is a lack of understanding of the Internet, its current applications, and its potential scope. A second factor behind the rush to regulate the Internet in some jurisdictions is fear of the Internet -- frequently a fear of the potential social and political consequences of expanded Internet use. Finally, in some jurisdictions, there appears to be a perception that there is political advantage to be gained by either challenging or championing the Internet -- an opportunity for political leaders to be seen as statesmen dealing with an important contemporary issue.
Many members of the legal community view the development of the Internet as a revolutionary event. This seems, however, to overstate, at least for public policy purposes, the actual significance of the development of the Internet. A more reasonable perspective involves recognition that the advances in information and telecommunications technology which made the development of the Internet possible are important, but are actually more evolutionary in nature than revolutionary. The Internet is simply another communications system, admittedly a very powerful and expansive one, but a telecommunications network, nonetheless.
Many legal institutions have lost this sense of perspective as to the Internet. Instead of viewing the Internet as simply another technical tool, they look upon it as a challenge to social and political structures. Examining the Internet in this light, they believe that it has a life of its own and must thus be subjected to direct legal direction. Not surprisingly, societies with legal systems that have traditionally tended to be more controlling and restrictive find the Internet to be most threatening. However, even those societies with traditions of tolerance and openness appear to be having difficulty facing the expansion of Internet use without a substantial level of fear.
It is a short step from the perception that the Internet is a revolutionary challenge to social and political institutions to the view that it is also a development to be feared and tightly controlled. Many public officials view the Internet as an environment that borders on anarchy. Uncomfortable with new contexts and unruly systems, many political leaders around the world see the Internet as a potentially disruptive force. Fear is a natural outgrowth of this perspective, and that which is feared by political leaders, they frequently try to control through legal constraints.
Additionally, because the Internet has become such a highly visible technology, some leaders have begun to see it as an attractive topic with which to be associated. Some officials seek to capture a public position as champions of the Internet. As advocates for expansion of the Internet, they believe that Internet-specific legislation is needed to facilitate continued development of the network and its applications. Others perceive political advantage in being seen as defenders of the public interest who are trying to beat back the challenges to society unleashed by the Internet. These leaders make use of the Internet as a convenient symbol of broader social and economic concerns, thus using the Internet as a politically charged target for their policy efforts. In either case, a significant number of political leaders around the world have recognized the potential political value available to them by virtue of direct association, as either an advocate or a critic, with the Internet and its applications.
If the Internet becomes the focus of specific legal attention, it is likely that the pace of its development will be impeded. Additionally, the development of a significant body of law directed specifically toward the Internet is likely to result in the proliferation of unnecessary legal restrictions, an environment in which there will be greater opportunity for inconsistent treatment afforded online conduct as compared to physical world activities.
Without enactment of laws and regulations specifically aimed at the Internet and its applications, legal institutions will respond to the novel factual situations raised by the Internet in the same way that they have been handling changed circumstances throughout history. Courts, regulators, and other legal practitioners will look to existing laws, regulations, and judicial precedent, and will apply that framework to the specific cases and controversies raised by the Internet. Our legal institutions will apply established law and precedent to novel fact patterns generated by the Internet. To the extent that actual practice demonstrates that the new environment requires legislative or regulatory changes, appropriate changes to legal institutions will be made, but only after the need for such changes has been substantiated by direct conduct.
In contrast, if a legal framework specifically directed toward the Internet is constructed before the Internet has an opportunity to mature, there is a substantial risk that the resulting restrictions will impede the development of Internet applications. Impediments can result from this approach to the extent that the new legislation and regulations constrain Internet development or specifically prohibit certain Internet applications. Examples of this type of threat to Internet development are some of the commercial content restrictions under consideration at the federal and state levels in the United States. Prohibitions regarding online advertising for tobacco and alcohol products fall into this category.
Impediments to Internet development can also result even if the legal provisions directed toward the Internet do not prohibit conduct. If legislation and regulation impose restrictions or requirements on online conduct that are not applied to similar conduct in the physical world, there will be a disparity in legal oversight between online activities and similar activities conducted in the physical environment. Such disparity can lead to commercial disadvantages for online transactions relative to traditional transactions. This competitive disadvantage can impede development of online commercial functions. Thus, for example, if parties conducting online commercial transactions are held to higher standards of transaction security and consumer data privacy than are their counterparts involved in traditional commercial transactions, growth of online commerce will be delayed.
Laws and regulations directed toward the Internet will also result in creation of unnecessary legal requirements. As jurisdictions have begun their rush to create Internet law, we are finding that many of those efforts are unnecessary because existing legal principles are entirely adequate to protect the public interest, even in the new environment provided by the Internet. While writing our book, Law of the Internet, my colleague, George Delta, and I learned that in the vast majority of instances, existing legal principles are sufficient to accommodate factual contexts generated by the Internet. In a very real sense, the law of the Internet ought to be the same as the law of the everyday world. Viewed from this perspective, the vast majority of Internet-specific legal requirements are redundant. To the extent that laws and regulations directed toward the Internet merely specify rights and obligations already present, they do not serve the public interest, and indeed they add unnecessary complications to the legal system.
An example of this problem is provided by action in the United States, at both federal and state levels, with regard to laws pertaining to harassment and defamation. Regulators and legislators at the federal and state levels in the United States are actively considering many different legislative amendments and new regulations to apply existing laws against harassment and defamation to the online environment. These actions are entirely unnecessary, as existing laws and regulations in those areas are certainly broad enough to encompass online conduct as effectively as they have dealt with traditional conduct through the years. There have been, however, some encouraging indications that courts in the U.S. are beginning to recognize that existing laws in this area can be applied readily to the Internet environment. Several cases involving harassment and threats made online have resulted in criminal convictions and damage awards under conventional statutes and regulations, without relying on Internet-specific versions of those laws.
Some members of the legal community appear to be using the rise of the Internet as an excuse to make substantial modifications in existing laws. In various parts of the world, for instance, much attention is now being paid to the Internet's potential impact on privacy of personal data. Clearly, online systems make it easier and more efficient for commercial entities to obtain, process, and share customer data than was possible using prior technologies. To the extent, therefore, that jurisdictions determine that there is now a need for greater legal control over the acquisition and use of such data, modifications to existing data privacy legal regimes are appropriate. Such modifications, however, should be directed toward all consumer data acquirers and users, not just the ones making use of the Internet or other electronic data systems. Legal limitations applicable to consumer data should be applied to all parties who acquire and use that data, no matter what means they apply to process the data. A similar approach should be employed for all areas of legal action. If there is policy concern sufficient to justify establishment of laws applicable to the Internet on a given topic, those laws should not be targeted exclusively at the Internet, but should instead be crafted for applicability no matter what technology is applied to the relationships in question.
For the sake of long-term development, it is best that the Internet rapidly become recognized by our legal institutions as a tool, not as a target. Although on first consideration it may appear that specific legislation and regulation directed toward the Internet and its use may provide safeguards to ensure effective development of the system and its applications, the actual results of such legal attention are likely to be far less supportive.
Our legal infrastructures should address the conduct of people, not the tools used by people. Information and telecommunications technologies, like many other forms of technology that have developed in the past, can profoundly affect the ways in which people interact with each other, socially, politically, and economically. When functioning properly, our legal institutions address the interaction among people -- their conduct -- not the various tools they use to execute such interaction.
Can the enhanced communications and information processing capabilities afforded by the Internet dramatically influence the ways in which we conduct business, politics, and social interaction? The answer is most certainly, yes. But is that profound impact such a novel thing? The answer here is most certainly, no. There are many examples from our history of technological advances that have profoundly altered our daily lives. Previous advances in transportation (e.g., the automobile, commercial aviation), medical and pharmaceutical technology, computers and microelectronics, and telecommunications have all radically altered our societies. In each of these previous instances, however, we have exercised some patience and discipline to permit those technologies to mature before constructing legal frameworks around them.
We did not rush to establish a framework of "telephone law" during the early stages of the development of voice telephony. Instead, we applied existing legal doctrines to the new circumstances presented by the developing technology of telephony. As the technology matured and became more fully integrated into our commercial and personal lives, the scope of its impact became more clear, and minor modifications to existing laws and regulations were effectively made.
In each past instance of technological advances that significantly affected our societies, we focused on applying legal principles to human conduct and relationships. We did not focus laws and regulations on the new technology itself. That patience and discipline was rewarded by the effective integration of the new technologies into our societies.
Put simply, from a legal perspective, there is no such place as "cyberspace." The Internet has not created a new jurisdiction or community. Instead, the Internet has provided a new means through which all of our traditional personal, social, economic, and political relationships can be conducted. The law should continue, as it always has, to regulate and moderate our human relationships. To the extent that those relationships are affected by the Internet, the law should address those altered relationships. The law should not, however, assume that the Internet requires specific attention simply because it is different and novel.
In some instances, proponents of Internet development have joined in the call for Internet-specific laws. These advocates support legislation and regulation directed toward online activities as part of an effort to protect those activities and to facilitate the development of Internet applications. These calls for Internet legislation are primarily based on concern that absent some affirmative guidance regarding legal treatment for Internet conduct, various jurisdictions and courts will create a confusing and often conflicting set of legal requirements applicable to the Internet and its use.
There are many examples of this effort to protect the Internet through targeted legislation and regulation in different parts of the world. For example, Germany's Information and Communications Services Act was prompted, in large measure, by the controversy associated with the highly visible criminal prosecution of a CompuServe executive by law enforcement authorities in Bavaria based on content accessible through the CompuServe service, but not created or controlled by CompuServe. There was concern that, absent some form of prompt specific legislation, it would be difficult to balance effectively justified content regulation with efforts to create an ISP liability climate conducive to expansion of Internet commercial activities.
Although it is tempting for Internet advocates to believe that rapid adoption of pro-Internet legislation and regulation offers the best prospect for creation of a legal environment conducive to continued commercial development of the Internet, such an approach is, in the long run, a tactical error. This strategy focuses attention on the Internet as a target for legal action. It may also be perceived by some policy-makers as a request for preferential legal treatment for Internet activities. By framing the legal discussion in those terms, Internet advocates run a substantial risk that the Internet-specific legal framework they propose will be substantially altered during the legislative and regulatory debate and will result in targeted legislation that is far less supportive of the Internet than that which they originally proposed. Additionally, this strategy runs a significant risk of eliciting a policy backlash as some policy-makers and representatives of other interests oppose what they perceive to be a request for preferential treatment for the Internet.
A more appropriate strategy for Internet supporters is one based on the simple argument that the Internet does not create new issues that the law must address; instead, it merely creates a new environment in which all traditional legal issues can arise. It follows from this premise that expanded use of the Internet does not immediately justify creation of new laws, but instead requires that the legal community learn about the Internet's applications and begin to understand the ways in which those applications affect our traditional social, political, and economic relationships. This knowledge is necessary to enable the legal community to apply existing laws and regulations to the new factual contexts Internet use provides.
Under this approach, it is important that legislators and regulators make every effort initially to avoid Internet-specific laws and regulations, regardless of whether those actions would have been designed either to foster Internet expansion or to constrain its use. Until we have given the Internet more of an opportunity to be fully integrated into our societies, we are not in a position to assess effectively the extent to which it will alter our relationships. Without such knowledge and direct experience, prudent legislation and regulation are impossible. The pace and scope of integration of the Internet into our societies should be driven by technological and economic forces, not by legal action.
The most appropriate relationship between legal institutions and the Internet, at present, is one in which there is a moratorium against all forms of Internet-specific legislation or regulation, both supportive and constraining, alike. Admittedly, in many cases, in order to implement such a moratorium, specific legislation or regulations will be required, but those legal actions should have as their sole purpose establishment of a temporary period during which no laws specifically targeting the Internet will be implemented. Note that this type of moratorium should not exempt Internet use and applications from existing legal requirements that may already apply. There have been several examples of encouraging trends in this direction. One such example is the European Commission's ongoing effort to coordinate the policies of the European Union nations in an effort to avoid obstacles to development of the electronic marketplace. Another example is the proposal by the United States to the World Trade Organization (WTO) suggesting the WTO adopt a policy that all WTO member states will maintain the current structure under which none of those states levies duties on electronic trade of goods. Similar initiatives are taking place within countries; the Internet Tax Freedom Act now under consideration by the U.S. Congress is one example.
To be successful, this strategy places significant demands on the legal community around the world. It requires that our legal institutions work diligently to understand the Internet, its developing applications, and the impact of those applications on our societies. Using this knowledge, the legal community must first attempt to apply existing law to Internet functions. Note that these demands will be placed on all elements of the legal system: legislators, regulators, judges, attorneys, and juries. As our experience integrating the Internet into those societies increases, legal institutions can then effectively judge the extent to which the enhanced capabilities afforded by the Internet require modifications to existing legal regimes. When such modifications are considered and implemented, however, it is essential that the legal community structure those changes so that they treat electronic and physical world relationships and conduct equally. The Internet should not be either advantaged or disadvantaged by our laws and their application. The law of the Internet should be no different from the law applicable to our daily lives, and when that condition is achieved, the Internet will have become a truly integral part of our societies.