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Legal Pundits Pan Internet Exceptionalism
Back in Brown writes: "This article from today's Wall St. Journal (via MSNBC) presents the viewpoints of several legal commentators that the Internet should be treated like any other invention and not subject to novel legal interpretations. 'The steam engine ... probably transformed American law, but the "law of the steam engine" never existed.' Another quote: 'cyberbuffs are afflicted with "insufficient perspective, disdain for history, unnecessary futurology and technophilia."'"
Proof that the author and those quoted don't really understand what they're dealing with lies in the underlying assumption that one nation's laws can be binding on something like the internet.
... the internet." It is merely that a nation's laws can be binding upon the French subsidiary of Yahoo, over whom it had plain and simple jurisidiction. As much as some would like to pretend that Yahoo France is a "virtual" company residing in the internet, the Nazi paraphernalia case is a very bad poster boy for accusations of virtual jurisdiction.
Straw man. The "assumption" is not that "one nation's laws can be binding on
Yahoo WAS a bad citizen in this case, and was slammed accordingly. Under US law, this result seems foolish and foreign, but we in the US do not get to impose our constitution on France -- a place brutally savaged by the Nazis. France applied its own law as against its own corporate citizen and its parent, a citizen that faced pretty bad and ugly facts in its own defense, using traditional notions of extraterritoriality.
Yahoo is probably not the best example to suggest that these authors don't "get it." Indeed, the poster seems to have as much difficulty understanding the law as he insists these jurists are having difficulty understanding the tech.
In fact, Lessing was wrong - there is a "law of the horse". One of the earliest legal codes we have, from one of the Scandanavian kings (Ranulf?), has at least two horse-specific laws. And they're interesting.
One law provided that, if a horseshoer made a horse temporarily lame, (which happens occasionally, more often with inept horseshoers) they had to provide a loaner horse until the hoof healed up. This is perhaps the first piece of consumer protection legislation. Note that it's very specific, and, like modern "lemon laws", places the blame unambiguously on the service provider. It's not a general tort or liability law; it's a law that arbitrarily assigns blame for a specific, common problem.
Another law provided that that if someone borrowed a horse and rode it around the village, they were guilty of a minor offense, but if they rode it out of the village, they were guilty of a major offense. Some jurisdictions make that distinction today in auto theft cases, mostly for juveniles.
So the law of the horse did exist when horses were important.
There's a sizable law of steam. Start with the ASME Boiler Code, which is very specific and has the force of law in many countries. Boilers used to blow up frequently before there was law that set standards for boilers and the people who design and build them. The U.S. safety regulations for steam locomotives (49 CFR 230) are still valid and enforced. There's a National Board of Boiler and Pressure Vessel Inspectors.
For a history of the law of steam, see page 35 of this recent boiler explosion investigation report. There's a law of steam for good reason. The first law of steam was enacted in the US in 1838, after a riverboat blew up, killing 300 people. The issue remains; a steam locomotive blew up in 1995, killing several people.
Thus, claims that there is no "law of the horse" or "law of steam" are false. Such laws exist.
This is not new. If a person sues a mail order company, where is the case going to be held? The same principals that have historically been found in contract law between two parties who form an obligation in differentjurisdictions should apply to cybercases and I have not seen a compelling argument to demonstrate that Congress and the Judiciary should tackle the Internet CyberHighWay with new laws.
"There ought to be limits to freedom"
"IANAL, but if I undestand correctly, the great deal of Western law is based on 'common law', the practice of allowing previous court decisions to affect future decisions."
(Some vast oversimplifications follow)
Common law is strongest in English-derived legal systems. Most other Western countries are founded on civil law. Common law is where the rules of law are largely made by judges in resolving particular cases. Civil law focuses more on writing the law down ahead of time.
Common law tends to be more organic - it grows. Civil law is more designed. Both do try to achieve consistency and fairness. If two people lose fingers in work accidents, both systems try to award similar numbers to the two individuals. Common law is more likely to look at previous cases, civil law is more likely to have a table of damages created before the case crops up.
Each has strengths. Common law does not require thinking of everything ahead of time. Civil law puts everyone on better notice. The unpredicatability of common law, versus the "oops, missed a spot" aspect of civil law is one of tradeoffs.
Whether "cyberspace" if you think it exists would be better governed by civil or common law, is an entirely separate question from the one that started the thread. It may not be best served by the analogical reasoning of the common law, but on the other hand, a civil law approach requires more foresight than anyone has for the environment.
The above are "technical" problems of law that, for the moment, ignore political and social dimensions of "cyberspace" as a community, or "cyberspace" as a fragment of larger pre-existing communities. For example, if "cyberspace" says that it is not responsible for cyber-stalkers of 12-year-old girls in the same way that Arafat says he is not responsible for Hamas, what is the result? The response of "too bad, so sad" isn't going to cut it.