Journal of Computer-Mediated Communication: Emerging Law on the Electronic Frontier, Part 1 Volume 2, No. 1

This article is a general overview of the present state of the law with respect to new online communication services, comparing the views of pioneer users that there is something new and distinctly different about communication via computer and modem from other forms of communication with those of lawyers and law enforcement officials who are attempting to apply existing statutes and case law to abusive behavior and controversies that arise online.

The differences between the two approaches will be compared with the successes and failures concluding with some suggestions of what approaches might be taken in the future.

Branscomb is a legal scholar in the Harvard University Program on Information Resources Policy analyzing the impact of information technology on developments in the law. A specialist in computer and communications law, she is the author of Who Owns Information?, editor of Toward a Law of Global Communications Networks and numerous articles in both popular and professional journals regarding broadcasting, cable television, telecommunications policy, and online communications.

In societies, as in games, rules matter. They set the boundaries of permissible behavior, define the terms of interaction, and lay the groundwork for recognizing the victors and punishing the losers. In both competitive games and civil societies, rules prevent interaction from degenerating into chaos. Even in their breach rules are critical, since they define the violation and arrange for its punishment. When rules break down, so does interaction perish. Business, with fewer and more fluid rules than other sectors, is coming online like gangbusters with commercial sites on the Web proliferating at a staggering pace. Change is definitely on the way that will change dramatically the conduct of comnmerce. However, reports of imminent transformation are premature because the rules that must govern the Internet have yet to be developed. Moreover, the very process of promulgating commercial rules will force the Internet itself to change. Before business can truly flourish online, the Internet must provide an institutional envirionment conducive to commerce. This will require, at a minimum, a common conception of property rights, a system for setting and securing the means of exchange, and a mechanism for enforcing both property rights and secure exchanges.

Debora Spar is an associate professor at the Harvard Business School. Her research interests include business-government relations, international economic competition, and foreign direct investment. Her current work focuses on issues and policies that constrain international business in gaining comparative and sustainable advantages in the international marketplace. She is author of The Competitive Edge: The International Politics of International Cartels and co-author of two books, Beyond Globalism: Remaking American Foreign Economic Foreign Policy and Revolving Doors: Cases in U. S. Foreign Policy Making

Jeffrey Bussgang is the Director of Transaction Products at Open Market, responsible for the Transaction System product line. He has authored a variety of articles concerning business on the Internet, including a Harvard Business School case, "Ruling the Net", and sits on the board of directors of a private software firm in Boston. Previous positions include Associate at The Boston Consulting Group and Business Development Manager at Athena Design, Inc. Mr. Bussgang holds an MBA from Harvard Business School, where he was a Baker Scholar, and a BA from Harvard University.

This article discusses the growing commercialization of the Internet and assesses the longterm implications. It provides a brief historical overview of the introduction and influence of advertising on other media, and an analysis of the way in which the Internet is like and unlike other media, dismissing the popular notion that the Internet is inherently unique and immune from the threat of over-commercialization. New approaches and techniques to market, sell, promote and gather research via the networld are highlighted, as well as the redefined relationship between buyer and seller. The essay concludes by offering a set of policies that will alleviate some of the negative impacts. These safeguards will serve to protect the integrity of the Internet and help ensure that unprofitable yet pro-social uses of this important forum do not get drowned in a flood of advertising chatter.

David F. Donnelly is on the faculty of the School of Communication at the University of Houston. He earned a Ph.D. (1993) and an M.A. (1988) in Communication from the University of Massachusetts, Amherst and a B.A. (1980) in RTVF from the University of Maryland. A media and Internet consultant for numerous private and nonprofit organizations, his research and publishing interests include the social and cultural impact of technological innovation, communication policy, and technological forecasting. He has contributed to The Encyclopedia of Television, The Encyclopedia of Film, International Teleconferencing Yearbook, Communication Research, Informatics and Telematics, and New Telecommuncation Quarterly.

Due Process in cyberspace will concern a different set of persons -- online personae rather than the "citizens" of a given state. It will protect a different set of values -- the continuing "life" of an online identity, the "liberty" to engage in established activities free from arbitrary new rules, and the "property" of an established domain name or wellknown web page address. Its procedural protections will likely take the form of an assured opportunity for community discussion, as distinct from physical rights (such as the "confrontation of witnesses") or particular "real time" dramatic processes (such as "cross examination"). Indeed, the substantive protections of due process in cyberspace may well differ in content from place to place, with users free to choose their online environments on the basis of whether the local rules suit their needs. But, despite these differences, the law of the networld will very likely embody many of the same core principles that underlie our current due process doctrine: respect for the interests of individuals in the face of majority oppression, thoughtful and rational evaluation of individual cases, and appropriate opportunities to participate in creating and applying the law of the networld.

David R. Johnson currently serves as Chairman of LEXIS Counsel Connect, the online meeting place for the legal profession. He also, serves as Co-Director of the Cyberspace Law Institute. Mr. Johnson is a graduate of Yale College (Summa Cum Laude), studied at University College, Oxford, and received his law degree from Yale Law School in 1972. He clerked for Judge Malcolm R. Wilkey of the United States Court of Appeals for the District of Columbia. He then joined the Washington, D.C. law firm of Wilmer, Cutler & Pickering, and was admitted to the partnership in 1980. Over the years his practice has included litigation, administrative law, and counseling regarding such matters as valuation theory, independent contractor status, newspaper distribution systems, and corporate personhood. In recent years, he has practiced computer law, focusing on software and systems contracting, electronic publishing, and privacy issues. He helped write the Electronic Communications Privacy Act and has counseled major online system providers. Mr. Johnson also serves on the boards of the National Center for Automated Information Research and the Center for Computer-Assisted Legal Instruction.

The reputation the Internet has for being a cyberspacial "wild-west" is not wholly accurate. Internet communities are thriving, are important, and are currently dependent upon self-regulation for their survival. The rapid evolution of rules within Internet communities is a novel and interesting manifestation of a familiar legal event - the development of customary law. This article describes and analyses the sources, content, propagation, and enforcement of these rules. In particular, the unique forms of power which enable enforcement in the Internet environment are discussed. The article concludes that understanding Internet cybercommunities' self-regulation is important for both internal participants who wish to influence rule development, and for external regulators who should incorporate cybercommunity self-regulation into Internet regulation strategies.

Tamir Maltz is a 1996 LLB. candidate at the University of New South Wales, Australia. During 1994-95 he was a member of the University of New South Wales Law Journal editorial board. He has previously written articles for the New South WalesCommunication Law Centre publication - Communication Update. Mr Maltz is employed as a clerk at the Sydney based technology law firm, Gilbert & Tobin and can be contacted via Email at [tmaltz@gtlaw.com.au].

Witnessing the proliferation of anonymous messages online, cyberspace users and commentators are currently engaged in a polarized debate, one side exhorting the virtues of and the other deploring the vices of anonymous communications. In introducing the concepts of visible and invisible anonymity, this paper suggests a simple regulation which would address some of the problems arising from anonymous messages while still preserving their benefits. The allure of this regulatory proposal, which would require that anonymously mailed messages be clearly identified as coming from an unidentified source on the header, lies not only in its ability to lessen the deleterious consequences of anonymous messages, but in its minimal requirements placed on cyberspace users and its ease of enforcement.

Gia B. Lee is a 1996 J.D. candidate at the Harvard Law School, where she serves as Articles Chair of the Harvard Law Review. She received an A.B. from Harvard College, and, as a Knox Fellow, received an M.Phil. in Social and Political Theory from Cambridge University. During law school, she worked for Chairman Reed Hundt of the F.C.C., where she focused primarily on civil rights issues relating to the information superhighway. Next year, she will be clerking for Judge Judith W. Rogers of the U.S. Court of Appeals for the D.C. Circuit.

The Asia-Pacific is the world's most advanced region in the use of IT, outside Western Europe. Privacy issues are therefore finding their way onto both national and regional agendas, with the Asia-Pacific Information Infrastructure (APII) ministerial meeting in Seoul (May 1995) being the first to place privacy on the regional (APEC) agenda. New privacy laws covering the private sector in Hong Kong, Taiwan, Quebec and New Zealand indicates increased regional interest, with three of these laws being the first outside Europe to include data export prohibitions. The data export rohibitions in the EU privacy Directive are an additional incentive for regional laws that meet the EU's 'adequate protection' test. At present, only these four have 'adequate' laws.

The article argues that a regional privacy convention is a likely and appropriate response to these pressures and the growth of the information infrastructure. The existing international privacy agreements (OECD Guidelines, Council of Europe Convention, EU Directive and ICCPR) are all inadequate as a basis for a regional approach. The APII structure within APEC is proposed as a more likely structure within which to locate an effective regional privacy convention .

Graham Greenleaf is an Associate Professor of Law at the University of New South Wales, where he specialises in information technology law. He is also the Co-Director of the Australasian Legal Information Institute (AustLII), one of the largest law sites on the internet (http://www.austlii.edu.au). He has twenty years experience in privacy law and policy, including having served at various times as a statutory Member of the NSW Privacy Committee, a consultant to the Commonwealth Privacy Commissioner, and the Chairman of the Australian Privacy Foundation. He was also a co-founder of Privacy International, and is a member of its Management Board. In 1994 he was one of the drafters of the Australian Privacy Charter. He is the General Editor of the monthly Privacy Law and Policy Reporter, and the author of Privacy Guides to the Net (http://lexsun.law.uts.edu.au/~graham/PLPR_guide.html).

This article looks at the emergence of law in LambdaMOO, one of the most popular and well populated of MUD's. MUD's (multi-user dimensions) are text-based virtual realities in which multiple individuals log on simultaneously to interact and socialize. Using object-oriented programming, the participants "build" a virtual world through the use of language alone. LambdaMOO's denizens number in the thousands. Several hundred are logged on at any given time; LambdaMOO is therefore a virtual world, a cybercommunity. This article focuses on LambdaMOO's nascent mechanisms for social regulation and dispute resolution. Its focus includes: (1) A look at the MOO's language dependent, electronic environment as an interesting laboratory for experimenting with the development of law using a new technology; (2) An assessment of the arguments for and against the institutionalization of legal restrictions in a totally constructed virtual world, as illustrated by the disputes that arise online within the daily life of the MOO; and (3) An examination of the boundary between the the MOO and "real life" and the implications for the regulation of behavior.

Jennifer L. Mnookin is a Ph.D. candidate in the Program in the History and Social Study of Science and Technology at M.I.T. She received an A.B. from Harvard University in 1988 and a J.D. from the Yale Law School in 1995. Her dissertation focuses on the rising use of visual technological evidence in the courtroom, from photography to computer-generated animations. She is also interested in issues of legal pluralism and cyberspace, and is currently organizing a conference on gender, law and cyberspace to be held at M.I.T in spring, 1996.