16 March 1998
Source: Hardcopy of The New York Times, March 16, 1998, pp. D1, D9.

The Law Where There Is No Land

A Legal System Built on Precedents Has Few of Them in the Digital World

By Amy Harmon

Four photos: Cohn, Lessig, Nesson, Zittrain (65K)

Cindy Cohn, top, practices cyberlaw in San Mateo, Calif. Lawrence
Lessig, left, Charles Nesson and Jonathan Zittrain are seeking to
make Harvard Law School a leading authority in the new area.

Cyberspace, only yesterday the proud Wild West of the information age, is rapidly being settled and tamed. The best evidence is a sudden -- and some might say alarming -- infestation by a new species, the cyberlawyers.

They seem to be everywhere.

Last month, at the Computers, Freedom and Privacy conference -- an annual gathering once dominated by hackers and security agents -- they clogged panels with subjects like "Government jurisdiction over cyberspace transactions."

Each week, they post hundreds of messages to their own "Cyberia" Email list, pondering matters like "Usenet Death Penalty -- Legal?" And a pack of cyberlawyers are petitioning the White House for access to its planned conference on Internet privacy.

The nation's top law schools are vying to dominate an area of jurisprudence called cyberlaw, while law firms promoting such practices are becoming as ubiquitous as spam E-mail. And court dockets are swelling with digital-age disputes of "first impression."

Whatever happened to the electronic frontier? Perhaps, as they like to say in the legal trade, res ipsa loquitur -- the thing speaks for itself.

The Internet has changed from a playground for like-minded libertarians to a workplace and social space for millions. The latest wave of settlers has little interest in the cyberstate of nature or the utopian manifestoes of pioneers like John Perry Barlow's oft-cited "A Declaration of the Independence of Cyberspace," which defied any state's assertion of having control over the Internet.

That is where the lawyers come in.

"It's like when you start a colony," said Mike Godwin, chief counsel for the Electronic Frontier Foundation, an advocacy group that only a few years ago was practically alone in the field. "The first thing you do is you find out where the water is. The next thing you do is form couples, start families. The notion of having law, which is a way to order social interactions, only happens after you have a lot of social interactions such that they become problematic."

But in a legal system that reveres precedent and relies on analogy, even defining the nature of an Internet-related dispute can be a source of contention.

Consider just a few of the pending cases and the questions they raise across a range of legal doctrines:

Cindy Cohn, the lawyer representing the math professor, said it was in part the lure of the unknown that made cyberspace law so appealing. "It's a chance to think about first-level questions," said Ms. Cohn, a partner in the McGlashan & Sarrail firm in San Mateo, Calif. "With nine-tenths of my other cases, the same issue has already been decided. With this, you can say maybe you need to think in a new way about it."

Ms. Cohn is scheduled to testify tomorrow before a Senate Judiciary Committee subcommittee on proposed encryption legislation.

Not everyone is as sanguine about the prospect of a clean legal slate.

What is at stake, legal experts say, is whether the values that evolved over two centuries of case law will apply in cyberspace -- and what those decisions will teach us about the law in real space.

"There is anxiety, yes," said Judge Stewart Dalzell, a Federal circuit court judge. Alluding to his role last year in overturning the Communications Decency Act, a landmark decision for cyberspace law that was later upheld by the Supreme Court, Judge Dalzell recalled: "I know going in that when I started to hear the testimony I went, 'Oh my God! Oh my God ! I have to learn about packet switching?' And had we gone down the wrong path, it could have done immense mischief to the medium."

As judges and lawyers search for metaphors, elite law schools are scurrying to stake their claims as the center of legal theory that will make sense of it all -- and to lure cutting-edge law professors and attract students eager to enter what looks to be a lucrative new field of practice.

Earlier this month, Harvard Law School said it had received a $5.4 million donation from the estate of Jack N. Berkman, an alumnus, and his wife, Lillian R. Berkman to support its Center for Internet and Society, which was established last year and is overseen by Jonathan Zittrain, the executive director.

Professor Charles Nesson, the center's director, said the money would be used in part to experiment with opening up the gates of the august institution to the general public. More than 1,000 people have enrolled in Privacy in Cyberspace, the center's first free no-credit course offered over the Internet.

The gift will also endow a professorship. First to be named to the Berkman chair was Lawrence Lessig, whose appointment by a Federal district judge as special master in the Government's antitrust case against Microsoft did much to raise the profile of the nascent field of cyberspace legal theory. (Mr. Lessig's investigation has been suspended pending an appeals court decision on the propriety of his appointment.)

Not to be outdone, Harvard's longtime rival, Yale Law School, made Mr. Lessig a standing job offer as part of its effort to jump-start its Information Society Project. The school has offered visiting professorships to two intellectual property experts: James A. Boyle from American University and Robert Mergess, the co-director of the Berkeley Center for Law and Technology at the University of California.

"Yale is going to be the place to be for cyberlaw," said Jack Balkin, director of the school's program. "What happened at Yale is, nobody came to us and said, 'Here's some money. Go found a technology center.' This was something we identified as a priority."

Yale's stance is making other schools nervous. "The competition has definitely heated up," said Pam Samuelson, who helped found Berkeley's center two years ago and hopes that Mr. Mergess will stay put.

Ms. Samuelson, a leading critic of the Clinton Administration's proposal to adapt copyright law to cyberspace, said Berkeley's advantage was being in the midst of the industry that is creating so many of today's legal challenges.

Ms. Samuelson said that centers like Berkeley's would teach different skills and values than the traditional law school curriculum has taught.

"Rather than trying to develop fixed sets of black-letter law rules that you can memorize and then apply, this requires that students learn to be supple and adaptable," Ms. Samuelson said.

Although by most accounts Harvard, Yale and Berkeley have the strongest offerings, expertise in the field has spread. Michael Froomkin at the University of Miami has published several articles on law and cryptography, for example; Dan L. Burk at Seton Hall University is an expert on jurisdictional issues in cyberspace.

David Post, co-founder of the Cyberspace Law Institute and now a professor at Temple University Law School, is at the center of an active, debate among lawyers about whether the emergence of cyberspace requires a whole new legal model.

"There is a division between the: incrementalists and the radicals," Mr. Post said. "To me it makes more; sense to think of this as a separate domain of interaction that s going to have its own rules."

The stress that the new technology places on existing law has provoked some scholars to argue that cyberspace needs laws of its own in areas like copyright and privacy. Others; wonder whether at a time when private companies wield power over online behavior by computer code, constitutional principles should regulate private as well as state action.

But many legal scholars scoff at the notion that cyberspace presents the need for a new discipline. Among them is Judge Frank Easterbrook of the United States Court of Appeals for the Seventh Circuit and a professor at the University of Chicago. In an article for the University of Chicago Law Review titled "Cyberspace and the Law of the Horse," Judge Easterbrook warned of "multidisciplinary dilettantism." A law of cyberspace makes about as much sense as a law of horses, he said.

Still, even critics agree that the emergence of cyberspace is forcing the deepest and most critical consideration in years of law in general.

"Maybe dividing the world up into real space and cyberspace is artificial," said Brian Dally, 26, a student in Mr. Lessig's cyberspace law class. "What really came rushing to the fore for me in this class is that this should give us pause to examine some of our basic understandings about the purpose of government and the purpose of law."

Digital Docket

Increasingly, the spread of computers and online interactions and transactions is creating new case law. Here is a sampling of the new kinds of cases and the legal fields affected.

U.S. v. Thomas, 1996
United States Court of Appeals for the Sixth Circuit

Federal criminal obscenity case. A California couple used E-mail and a modem to market and sell pornography. One customer was an undercover postal inspector in Tennessee. The court upheld defendants' convictions in Tennessee for violating Federal obscenity laws through their operation of an electronic bulletin board in California.

Panavision Int'l L.P. v. Toeppen, 1996
United States District Court, Central District of California

An Illinois resident reserved Internet domain names, like Panavision, which were trademarks of well-known companies, then tried to resell or license the domain names back to the trademark holders. The court held he could be sued in California for trademark infringement.

Cubby Inc. v. Compuserve Inc.,
1991 U S. District Court, Southern District of New York

Cubby contended that it was defamed by a newsletter published by a third party but carried on Compuserve and that Compuserve was liable because it had republished the work. The court found that Compuserve had little editorial control over the publication and was more like a bookstore or public library. It was not liable for damages.

Reno v. American Civil Liberties Union, 1997
United States Supreme Court

The Supreme Court struck down as unconstitutional, on First Amendment grounds, provisions of the Communications Decency Act that criminalized the knowing transmission of indecent messages to minors. The Court found the provisions prohibiting such transmissions were in violation of the First Amendment protection of freedom of speech.