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."'"

Comments

Things change

[Vought 28]

Comparing the information highway to the steam engine highway is innacurite. Besides, each situation deserves to be judged individually, something our law makers should be aware of. Simply preserving precedent ensures we will never throw off the shackles of the past.

Re:Things change

[Anonymous Coward]

Yes, our lawmakers should be aware of this. But I think the anti-exceptionalists have a compelling point: it is not sufficient to just walk into every cyberlaw case and whine "but the Internet is different!!!". Many of the changes we -- I'm arrogantly speaking for the whole geek community here -- want to see, need to be fought the long and hard way through the various legislative bodies. We can't expect to leapfrog over the process via the court system.

And we need patience. Lots of patience. Look at how long the Civil Rights struggle has lasted and is still continuing...

Re:Things change

[DJ Uptime]

Comparing the information highway to the steam engine highway is innacurite. Besides, each situation deserves to be judged individually, something our law makers should be aware of. Simply preserving precedent ensures we will never throw off the shackles of the past.

Wow. You have an incredibly "innacurite" (sic) view of how law works. We use all available existing judgments to find the most appropriate categorization for each new situation (like qsort(3)). More often than not, questions arising from a new situation are resolved by fitting that situation in somewhere between a 50-year old decision and a 100-year old decision.

Oooh, "shackles of the past," as if we should all read that and immediately recognize that there is some huge injustice that needs to be removed. Try motivating your disgust a bit more with actual arguments and come back later.

Re:Things change

[bsartist]

You're getting too caught up in the specifics of the analogy. Here's a better one:

Compare the act of defacing a web site with that of spray-painting a brick and mortar store front. Graffiti is basically the same, whether it's on a web site or in the real world. We don't need a new law that applies specifically to the former; instead, we should simply charge the kiddies with vandalism, just as we would if they did the latter.

The article doesn't say that the internet doesn't change anything, nor does it say that absolutely no new laws will be needed. The article is saying that in some cases, we don't need new laws because existing laws already apply. Murder was already illegal when guns were first invented; it was not necessary to create a new law to make murder by gunshot illegal as well.

Re:Things change

[blight2c]

wow, "meritocratic philosophy"? you're really getting your money's worth for that 15k education. it's too bad you didn't actually respond to the guy's post. he's saying vandalism is vandalism, beit a 2d webpage, 3d storefront, or the backcover of that dictionary of quotations who so aptly used. just because defacing websites is "prevalent"/trendy doesn't make the crime any different or more worthy of attention/protection. if your gonna contribute, why don't you note the fact that defacing a website effectivly "closes" the store while repairs are made, possibly resulting in higher damage costs, but not changing the defination of the crime.

Re:Things change

[bsartist]

Cyberspace has it's own set of rules

You state that as if it's a fact, when it's that very question, whether "cyberspace" should have its own set of rules, that is the subject of this debate.

If a group of terrorists gather on IRC to plan an attack, is the crime that they're planning to commit changed in any way by the fact that they planned it in "cyberspace," instead of using telephones? If someone is killed with a hammer blow to the head, is the murderer more or less guilty than if he'd used a gun or a knife? If someone burns down a house, does his level of guilt depend on whether he started the fire by rubbing two sticks together, or with a Bic lighter?

To put it more generally, if technology creates a new means of committing a crime, without changing the basic nature of the act itself, then what need is there to create new laws? What useful purpose does it serve to outlaw specific methods of committing a crime, when the basic crime itself is already well covered by our existing laws?

Cars changed the law

[Vought 28]

When cars were widely available, new laws certainly came into effect. Speed limits were posted (not previously needed for horse and buggy carriages). Now exhaust limits, to controll pollution, are in place. Free trade laws, or lack of them, were hammered out in gov't because of the money involved. Each tech upgrade requires us to examine how it will affect humanity, and the internet is no different.

Re:Cars changed the law

[coyote-san]

Your analogy proves their point.

Cars introduced new laws (e.g., the infamous "red flag/red lantern" law in Britain), but it didn't invalidate any of the earlier laws.

If you couldn't cut across a field with horse and buggy, you couldn't cut across a field in your new car.

If you horse trampled a child and caused injury, you were responsible. If your car ran over a child and caused injury, you were responsible.

If you couldn't transport something in your horse-drawn buggy (e.g., moonshine), you couldn't transport it in your car.

In contrast, a lot of sleazy characters <i>are</i> attempting to claim that commonsense laws don't apply to the net. E.g., how many pyramid scheme letters did you get that were "legal" since they didn't use the mail. Too bad the Postal Inspector held that he did have jurisdiction since they used the postal mail to get the money! How many companies continue to push illegal products (drugs, both prescription and illicit), or "low rate" insurance which has a low rate because you'll never have a claim paid, or any of the other scams in circulation. Or how about the companies that are fradulently impersonating third parties to get past the spam filters. (Want to see the bounce messages for fradulent messages sent out "by" my company?)

Even the new laws that the 'net does need should be informed by historic precedence. The specifics are, but almost none of the concepts haven't been seen repeatedly over the past few centuries.

Re:Cars changed the law

[Anonymous Coward]

Yeah, it was more a case of "I know British people drive on the other side of the road, and I live in America (the other country besides Britain) therefore Brits drive on the wrong side, and the rest of the world does what America does".

Quite appropriate, considering the tone of the guy writing the article.

"We already have perfectly appropriate laws, we don't need new internet ones"

Uhh, which 'we' are you talking about there, chief? World != USA, Internet != USA

One big thing w/ cyberlaw

[Anonymous Coward]

Is venue. Where is the case going to be held? For a website being sued, is it where the website is hosted? Where the owner lives? Where the person suing lives? It may not be totally new, but it makes issues such as thing much more common than before.

two cent gallery

[tomstdenis]

For all of you with the wittism to point out new laws came about for cars, locomotives, etc...

The point of the article is that existing laws didn't bend for the new technology.

It was illegal to murder someone before the car. Its illegal to murder someone after the invention of a car. Its even illegal to murder someone in a car *and* with a car.

In the states there is "vehicular manslaughter" but premeditated murder with a car is still IIRC murder in the 1st. The former charge would be if you unintentionally cause an accident that is your fault that kills someone.

Anyways, its just more bs from a news source. Don't they just point out the obvious for a living then call it news?

Tom

Re:they missed something!

[Tackhead]

From the article:

> 'cyberbuffs are afflicted with "insufficient perspective, disdain for history, unnecessary futurology and technophilia."'

As a "cyberbuff", I happen to think lawyers are afflicted with insufficient perspective, disdain for the possibilities of the future, unnecessary clinging to outmoded business models, and technophobia.

(Of course, the reason they're right, and the cyberbuffs are wrong, is because lawyers make the laws, and the laws direct those who have the guns. But what a wonderful world it could have been without them.)

Actually they have a point.

[teasea]

We actually shouldn't treat cyberspace differently. I think what many want is for the entire world to be treated like cyberspace, where censorship and repression are difficult and ultimately, impossible for the truly determined.

Exceptionalism

[dmiller]

Information technologies and the internet *are* different for a simple reason: information scarcities are almost puerly artificial.

Until recently, even software distribution has had a physical component (e.g. the media + manual). We are approaching the point where software this is the exception, with the norm being distribution via the internet (free software has already passed this point). Any pretence of software or "content" being scarce in the traditional sense of the word will then be completely bogus.

Add to this decades of corporate abuse of the copyright system (Sonny Bono, et al.) and you have a system that is terminally screwed. Perhaps they are right: we shouldn't be making exceptions for the Internet, we should overhauling the whole system :)

I think I understand....

[evilviper]

They don't want a set of laws that specifically apply to the internet because there weren't specific laws that apply to trains. (Great choice, cause the internet, and trains are so similiar)

Let's choose something more modern. Let's say we shouldn't have laws that only apply to the internet because we don't have laws that apply to the phone, or the fax machine.

What's that you say? Oh, so we do have those laws.

How about comparing the internet to the post office? Oh, we've got laws for the post office too huh?

Trains were not a revolution, just an evolution. People already knew how to get from point a to point b, a train just made the process faster. There's no reason laws for trains would need to be made.

The internet on the other hand, is unlike anything before. You can steal something, without depriving it's owner of his property. You can destry someone's property (software) and all they have to do is put it back.

The internet does need laws, but I find that people don't know where to stop. Sure we could have spam laws, or we could just use technology to block spam completely. We could have laws that outlaw unwanted phone calls, or you could buy a $30 device that requires all callers to know a 4-digit pass-number.

What we need is intelligent people guiding those that make decisions... People much smarter than most Slashdoters. The problem is that the government will be happy to spend a trillion on corporate bail-outs, but you'll practically have to work for minimum wage if you want to take a government tech job.

Re:I think I understand....

[coyote-san]

Most of the laws we need already exist, but some people have tried to claim otherwise for their own benefit.

Say someone is a child rapist? Just because it's said online doesn't mean it's not actionable (unless the person really was convicted of raping a child), but some of the internet kooks routinely did that.

A pyramid chain letter is still illegal even if it's distributed by email, but it took a number of prosecutions by the FTC and Postal Inspector to convince many people of that.

As for the argument that destroying data causes no harm because the owner can restore it, that's flat-out wrong. There are some businesses that can literally lose a million dollars every minute their computers are down (think airline reservation system, other big-ticket high-volume retailers), and most businesses will suffer real losses until the data is restored. To say nothing of data permanently lost because it's not yet backed up - 100% stable storage is extremely expensive.

If you still think it's no big deal, tell us where you live and we'll "move" your car for you. You'll get it back, eventually, so it's no harm when you're unable to use it to get to work or to go out on your hot date.

Re:I think I understand....

[Fjord]

You know, one thing I never understood about the whole "every minute we're down we lose x million" idea was that it assumed people didn't really need whatever was being sold in the first place or that they would immediately call a competitor. Personally, if I need to book a flight, I need to book a flight, and I'll wait for the system to come back up to get the cheapest deal.

Granted, there will be some losses, but it's nore actually measurable. And I don't think I've ever heard of a predicted earnings adjustment due to a server being down for 18 hours.

Re:I think I understand....

[Arandir]

The internet on the other hand, is unlike anything before.

What a load of rubbish! This is precisely the technocratic elitism the article is talking about.

You can steal something, without depriving it's owner of his property.

You can photocopy a book without depriving it's owner of his property. All without the benefit of cyberspace.

You can destry someone's property (software) and all they have to do is put it back.

You can grafitti slogans all over a shop and all they have to do is clean it off. All without the benefit of cyberspace.

There is nothing fundamentally new about the internet. It's faster, larger and more convenient than earlier technologies, but it still follows the same old rules of physics, logic and human nature.

Obsolesence and Law

[Bonker]

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.

The problem with trying to apply laws to the Internet is that digital technology has caused a wave of obsolescence in any kind of existing communication, information technology, and dozens of other of societal concepts we hold near and dear. Law based on past precidents rather than fairness and equitable behavior can't hope to keep up through such an incredible wave of advancement.

Take copyright, for (our favorite) example. It's an artificial scarcity placed on information to encourage development of new information, bit it music, data, scientific research, or text.

Since digital technology has forever completely erased the possibility of having a finite supply of any kind of information, the length and breadth of copyright law is dying-- screaming, kicking, doing it's best to cling to existance in a scary new world inhospitable to it, but dying nonetheless. Like symbiotic bacteria, only the lawyers are keeping the dinosaurs of companies that profit by control of information alive.

Other facets of law relating to digital technology will go through similiar changes. Those laws that can adapt will make the change, just like the small rodents and other mammals who survived the Yucatan blast when the dinosaurs were obliterated. We will find the fossils of those who can't in the strata of obsolete legal records.

Re:Obsolesence and Law

[Bonker]

How is digital technology anything more than a continuation of the development of techologies that made information cheaper to reproduce that started in the 15th century [prodigi.bl.uk]?

Digital technology has, for the first time in human history, eliminated a scarcity. Before, there was always a scarcity in terms of information that could be stored. Books, vinyl albums, papers, documents, and the like had to be stored. They could be duplicated, but only at a relatively high expense.

The introduction of digital technology in the mix has eliminated that expense, driving the 'supply-side' of the supply and demand equation for information to infinity. Copyright is now the *only* thing propping up the sale of information.

Re:Obsolesence and Law

[cpt kangarooski]

Oh yes they do. There are plenty of laws that are not codified at all, and have been created by the courts, often over hundreds of years.

A lot of the law of torts, contracts, and property is common law. A lot of criminal law also descends from the common law, although that's pretty much the only area in which we no longer allow courts to make law.

Re:Obsolesence and Law

[sheldon]

Digital technology has, for the first time in human history, eliminated a scarcity.

Eliminated? Hardly.

It's certainly lowered the bar and made it more readily available. But to access the information one still needs the technology in place... computer, phone line, etc. And, of course, someone has to host the source of the information.

It is exactly the same as the leap forward created by the printing press in the 15th century, the leap forward created by wood pulp paper in the 19th century, and general computers in the 20th century. It's simply another step in an ongoing chain of developments.

I would have to say you certainly suffer from the cyberbuff affliction mentioned in the article.

Article misses the point

[Groovus]

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. Certainly the French government/judiciary may rule that Nazi memorabilia advertisements and sales are not legal (online or otherwise) in France and take measures to prevent that. However the ruling in France has nothing to do with the availability of such things in India. That is the somewhat unique nature of the internet - it is multinational.

The author further tips his hand by reducing the discussion to a discourse on laws, pundits and law students in America (meaning the U.S.), showing no awareness of the extranational nature of the internet. Just as the internet is no one application (a suprisingly apt realization on the author's part), the internet does not exist in any particular place, making it indeed worthy of special consideration when it comes to legislation and legalization.

Certainly some do get carried away with the internet as champion of true democracy, etc., but the fact remains that the internet does form a unique medium for all sorts of activities carried out by participants from around the globe. It only bears comparison to the steam engine in that it has definitely changed our way of life, but the comparison ends there. Attempting to approach the ramifications of the internet in the same manner as the steam engine was approached is to suffer from "insufficient perspective, (and a )disdain for history..." as well as being short sighted and overly simplistic.

Re:Article misses the point

[alizard]

The real problem with the legal 'pundits' quoted in the article is while they don't get quoted by the media or invited to cyberlaw conferences, their articles DO get read by lawyers and judges in legal journals.

In other words, law journals publish articles about Internet-related law written by people who almost know how to use e-mail and might even know that http: is the start of a Website address and their readers take them seriously.

Law journals are the legal industry trade press.

The reader of one of these journals might be judging YOUR DMCA case using bad ideas coming from, say, the clown who supports the French decision to attack websites outside France because they are an offense against French law.

As for a solution, all I can say is that it's time that attorneys who do get the Internet start publishing more articles.

There's a difference...

[Cognitive Dissident]

...between claiming an 'exception' merely to be different, or to exploit the fact that this is something new, and making different interpretations because actual use and practice is different than in past cases.

The current exemption from taxes, for example, is simply a 'perk' of being new. It's no more difficult to tax internet business than mail-order business. The mail-order companies are just exploting the disorder of the states. If the states get together or Federal Govt. ever gets its act together and passes a uniform tax code for mail order companies, they will be taxed. Same for internet 'e-tailing' or whatever fancy name you want to invent. International mail-order is also no different from international online transactions.

But there are very real differences in daily life brought on by new technologies. Back when direct telephone connections to homes and businesses was new there was a hue and cry about criminals being able to conduct their nefarious business without being subject to surveillance, very much like the current paranoia about internet fraud and pedophiles, etc... The police used to be heavy practitioners of 'eavesdropping' before the telephone. But there was also recognition of how the technology could be abused to increase police powers in unacceptable ways. So we didn't setup a central phone listening system like some dictatorship, we crafted a reasonable system of requiring police to get evidence that someone needed to be snooped on and get a warrant. We think this is 'routine' now, but it was a very new and strange thing in the early years of the last century.

Free translation - what they really said

[WIAKywbfatw]

'cyberbuffs are afflicted with "insufficient perspective, disdain for history, unnecessary futurology and technophilia."'

Classic marketing/financial services speak, to be expected from a banker quoted by the WSJ I suppose. Anyway, here's what that means:

"People who are keen on the internet don't look further than their noses and take a narrow view, have little consideration for what came before and have an unhealthy obsession for the latest technology and the next big thing."

A nice, sweeping generalisation, that's more anecdotal than scientific. (Or, put simpler, they don't have any numbers to back up what they say but, hey, everyone knows it's true don't they?)

If you can say something in an "artistic" way, use lots of long, fluffy words, instead of a straightforward manner, using plain, simple language, then a job in public relations or investment banking awaits you.

And people in those industries wonder why we don't believe everything they say...

...and laws change with them...

[The Monster]

Comparing the information highway to the steam engine highway is innacurite [sic]

Well, any analogy is flawed, but some aspects of the comparison are valid... The steam engine
transformed society in ways that never could have been imagined before. It made possible
industrial techniques and housing patterns that couldn't exist without it. The internal combustion
engine accelerated these effects.

The biggest difference between 'cyberspace' and all previous inventions (other than, to a much
lesser extent, radio and TV) is the fact that it defies geographic classification into legal
jurisdictions. For example, when I post this, am I doing it in

• Kansas (where my home is)
• Missouri (where my ISP is, at least locally)
• Virginia (where their domain is registered)
• Massachussets (where Andover.net, official Registrant for slashdot.org is),
• the physical location of the server(s) that the domain points to, if not any of the above
• Each of the sundry locations of /. readers
• All of the above, plus every single router in between

???

We laugh at the hubris of the {French|German|Dutch|*} government trying to prevent servers
located in another country from carrying 'illicit' material. Until they go after DNS, routers, or other
servers that are within their borders to prevent them from moving Evil Bits from those sites.

Each of these other inventions brought with them entire agencies to police the technology. It's just
a matter of time before this one gets the same treatment.

technophiles want LESS special case internet laws.

[DunbarTheInept]

If this guy thinks we want special case laws to exempt the internet, then he just hasn't been paying attention. What the "cyberbuffs' have been clamoring for for years now is to get the government to STOP making special case laws for the internet. It's not the technophiles who have been making special case internet-only laws, it's the technophobes, and it shows in the nature of the laws they come up with. Stuff that is perfectly legal offline, such as fair-use photocopying a small number of pages from a reference book, or copying a music album for the purpose of changing the recording media format for personal use (like converting old vinyl records to a cassette tape form), are becoming illegal when you do the equivilent on-line version of these activites.

So I say, *YES*, please DO get the government to treat the internet the same way everything else gets treated in public life, which means undoing the crap they've passed about it in the last few years. Destroy the DMCA, the CDAs I and II, and don't lie and call piracy theft. Theft implies that the original owner has had his property taken away rather than just copied. No, I'm not saying piracy is good, just that calling it theft puts the punishment out of proportion to the degree of the crime. Treating piracy as theft is like convicting someone for murder when all he did was get into a minor fist fight and nobody died.

Re:you do have to try to avoid them though

[SnapShot]

News flash! If she was so close behind the U-Haul that she wasn't able to react in time, then in my opinion she was partially at fault. It's called tailgating. It should be illegal.

Maybe those kids would be alive today if she didn't tailgate. An increase on her insurance rates is a pretty minor penalty for her poor driving habits.