Beyond Our Control? Confronting the Limits of Our Legal System in the Age of Cyberspace
Author: Stuart Biegel
Publisher: Cambridge, MA, & London, UK: MIT Press, 2001
Review Published: January 2002
New technologies enable new types of relationships. In Beyond Our Control? Stuart Biegel explores control of the Internet, cyberspace, the online world; that is, relationships mediated at least in part by new computer and communications technologies. Biegel, who is a faculty member of both the Graduate School of Education and Information Studies and the School of Law at UCLA, does not argue a general yes or no to the question "Beyond Our Control?" Instead, he recognizes both means and limitations of control, and urges that one examine a range of tools and policies on a case-specific basis. The case-specific material provides useful description of key recent legal and policy issues related to the Internet. In addition, the case-specific material is integrated into a general framework for considering regulation in cyberspace.
Biegel shows that the Internet has not created a radically new world of unbounded individual freedom, but it has created new opportunities for persons and new challenges for existing regulation and for implementing new political choices. Some analogize the Internet to the "Wild West," the situation at the frontier of US expansion westward across North America. A fascinating part of Chapter 1 explores this analogy with respect to representations in popular "western" films. Progress in these films is generally associated with those building "walled gardens," or at least farms. For example, in the film The Man Who Shot Liberty Valance, the bad guys at a public meeting hold signs saying "Keep the Range Open." In these films, freedom is associated with building government and enforcing boundaries. This analysis suggests that the means for promoting freedom need to be thought through carefully in relation to the real circumstances of the time.
One way of thinking about appropriate regulation for cyberspace is through more current, more realistic analogies. Chapter 2 of the book asks "Just How Different is Cyberspace?" Is using the Internet like using a telephone? Is using the Internet like speaking on a street corner or in a park, or is the Internet like a shopping mall or a library? One answer is to argue that there are many different cyberspaces, each with different characteristics. That answer strikes me as facile and unsatisfactory; it merely points implicitly to the difficulty of bounding and describing cyberspace.
Chapter 2 explores different understandings of cyberspace, but ultimately does not show that these debates matter. This book uses terms like the Internet, online, and cyberspace rather indiscriminately, and different cyberspaces are implicitly invoked by the treatment of specific problems. For a specific problem in cyberspace, the book directs attention to the questions of how different the problem is from problems elsewhere, and whether the existing regulatory approach is sufficient to deal with the problem in cyberspace. While these questions are worthwhile, they tend to promote the status quo. Thinking about what persons want and need from new computer and communications technologies directs attention more to avenues for progress.
This book considers regulation in terms of addressing problems, but not in terms of furthering substantive goals. Chapter 3 considers regulation in relation to four problem categories: (1) dangerous conduct, (2) fraudulent conduct, (3) unlawful anarchic conduct, and (4) inappropriate conduct. These categories of problems are used to analyze regulatory challenges throughout the rest of the book. This categorization seems to be helpful for analyzing regulatory problems, and it encompasses more than enough material for this 452 page book. Nonetheless, it seems to me that at least some notice might have been taken of a broader, more affirmative role for regulation. Political choices about regulatory goals are often tentative and contradictory, and they are made and expressed through complex institutional mechanisms. Nonetheless they do exist, and some might argue that at least within certain bounds such goals should exist.
This book considers regulatory approaches to problems in terms of what Biegel calls three regulatory models. The first is traditional national law. The discussion of traditional national law focuses on recent Internet-related US legislation: the Communications Decency Act of 1996, the Child Online Protection Act of 1998, the "No Electronic Theft" Act of 1997, and the Internet Tax Freedom Act of 1998. While the discussion of these laws, related litigation, and outcomes is useful, I didn't get much sense of "model" of traditional national law. Considering national laws over a longer period, and with respect to a range of countries and legal systems, might help one get a better sense of how traditional national law works.
The second regulatory model put forward is international agreements and cooperation. Chapter 6 discusses the World Intellectual Property Organization (WIPO) Copyright Treaty and the Internet Corporation for Assigned Names and Numbers' (ICANN) Memorandum of Understanding, and the World Trade Organization. In addition to these rather common topics, Chapter 6 includes interesting discussions of the law of the sea, the law of aviation space, and the law of outer space. These discussions add significantly to one's sense of how international regulatory efforts play out.
The third proposed regulatory model is code-based regulation. Software greatly affects what persons can do, i.e. their de facto online rights and freedoms. Thus, for example, the standards that a foreign company builds into accounting software might play a major role in regulating the standards of accounting used in a country that has a relatively small number of businesses. Understanding the forces that shape software architecture can help to inform regulatory policy. The discussion of "code-based regulation" in this book makes a contribution in that regard.
However, discussions of "code" tend to take on a breathlessness like that of the bourgeois gentleman who learns that he has been speaking prose all his life and never knew it. It is easy for discussion of software and network architecture among policy analysts to spiral into second-rate historical myths and endless, tedious, and worthless mock technical discussions. While this book largely avoids that danger, I am nonetheless unconvinced of the value of considering code as a distinct regulatory model. Software, like language and other shared intellectual tools, standards, and products, is subject to a variety of national and international regulations. Considering specific effects of national and international regulations on software production helps to focus discussion on feasible public actions. From this perspective, "code-based regulation" is not a distinct regulatory model.
The best part of the book seems to me to be Part III. That part includes chapters devoted to regulatory approaches to cyberterrorism, to consumer rights in cyberspace, to private digital copying by the average netizen, and to online hate. The chapter on cyberterrorism includes an interesting discussion of counteroffensive activity. The chapter quotes a study indicating that 32% of a sample of Fortune 500 companies have installed counteroffensive software, which might include counter-spamming, "Ping of Death," and hostile Java applets. A brief analysis of common law concerning self-defense highlights the importance of whether counteroffensive software should be considered "defense of habitation" or "defense of property." Regulation in this area might well be very important in the future.
An important motif in the book is a need for consensus as a basis for effective regulation. The chapter on online hate notes that the US approach to speech regulation is much different from that in most countries around the world. Yet the way that different modes of speech regulation will co-exist in a global electronic medium is uncertain. Moreover, categories of speech such as "fighting words" and "incitement to imminent lawless conduct" depend significantly on the cultural and political context in which they are heard, which might be much different from the context in which they are created. Intelligent, articulate, worldly terrorists show that speech and discussion are themselves not sufficient to ensure a humane, just world. Speech regulation inevitably will have to grope with different concept of human goods, and with social orders that may be insecure and unstable.
The book concludes with twenty regulatory principles. The principles are generally reasonable, but tend toward platitudes and truisms. Authors everywhere should recognize that lists of principles should contain no more than three, that principles should be stated in one short sentence, and that the best list of principles is a single golden rule.
Overall, this book provides a good descriptive introduction to a wide range of policy problems related to the Internet. It also attempts to provide a more general analytical framework for considering regulation. With respect to that much more challenging task, the book is less satisfying.
Douglas Galbi is a Senior Economist at the US Federal Communications Commission. His responsibilities include communications policy and industry analysis. The views expressed in this review are his own and not those of the FCC.
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