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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

 REVIEW 1: Douglas Galbi
 REVIEW 2: Jerry E. Stephens

Regulating cyberspace is one of those hot button issues and a matter of real concern to many. Not just how to regulate cyberspace but whether regulation is warranted or appropriate at all. And, the very issue of regulating cyberspace has, in a sense, helped create a small publishing industry of its own [1]. Stuart Biegel, a member of the faculty at the Graduate School of Education and Information Science and the School of Law at the University of California, Los Angeles, follows in this grand enterprise by examining the potential for regulation and any limits on the ability of the traditional legal system to accomplish effective and successful regulation.

But, Biegel goes a significant distance further. It is the purpose of Beyond Our Control? to identify and analyze several broad models through which the regulation of cyberspace might actually be accomplished. It is in systematically presenting to the reader an actual analytical framework that Biegel's book becomes highly recommended reading.

At one level, Beyond Our Control? reads like a legal brief. Maybe that is to be expected of a law school professor. In other writers' hands, that style of writing could have been a difficult barrier to overcome. But this book is much better than simply a legal brief. It is a structured approach to the very sense of cyberspace regulation. Beyond Our Control? is, in its real essence, a series of building blocks examining not only the issues underlying cyberspace regulation but real and substantial suggestions as to the feasibility and likely success of regulation in specific instances.

Biegel, furthermore, contributes in quite another fashion. Near the end of the book, he describes his writing as "a recent history of the Internet, documenting key legal and policy developments from 1994 through 2001" (359). At first reading, it is as a history that Biegel's book is quite impressive. As a "history of the Internet," Biegel samples and describes many of the events that have shaped the growth of the Internet. For many of us, these have been the all encompassing news events, the very stuff upon which the Internet and public policy affecting the Internet have been seen to occur.

Beyond Our Control?, thus, becomes an essential tool in the study of the way that matters relating to the Internet and cyberspace are placed on the public agenda. And, it is in this public agenda making and how that public agenda can be evaluated that is the contribution that Biegel makes to the existing literature [2]. Stating what is on the public agenda, however, carries with it real and substantial dangers. Not the least of the dangers is the way in which current events impact upon matters related to cyberspace. Our sense of important matters on the public agenda may most recently have been restated in the wake of the terrorist attacks on September 11, 2001. Matt Richtel, in a recent New York Times column, described the issue by asking "[i]n an era of tighter security, how much cyberfreedom are we willing to surrender?" [3]

Biegel's description of an analytical framework for the possible regulation of cyberspace occupies the bulk of the book. The analytical framework promises to help us get beyond consideration of the more ephemeral as we consider cyberspace regulation. In substantial part, the analytical framework is grounded upon considerations of the likelihood of success for the particular regulation. And, to Biegel, consensus is highly important. Biegel concludes that any identified problems for which regulation of cyberspace might be suggested are more likely to be effective if there is a consensus among the identified stakeholders regarding both the severity of the harm and the appropriateness of the regulatory approach.

Biegel's analytical framework, without any dramatic surprises here, asks that the following be done:

    1. identify the type of problem and its essential characteristics from a list in chapter 3;
    2. determine whether there is at least a potential for consensus among the identified stakeholders as to both the nature of the problem and the prospects for regulation;
    3. determine how uniquely cyber the problem is and whether this might suggest the form and approach that final regulation might take; and
    4. determine whether one of the three regulatory models identified by Biegel might be applied to the regulatory scheme under consideration.

Is there really a problem awaiting solution? That's what chapter 3 attempts to answer in an extensive description of four problem categories. The first category is "dangerous conduct" comprised of "acts and behaviors that may impact physical or national safety" (55). Among the examples of dangerous conduct are such behaviors as threats, child pornography (both the creation and trafficking in such pornography), unlicensed online health care, and cyberterrorism and cyberwar. The second category includes instances of "fraudulent conduct" which comprises "behavior that may impact the economic safety of persons, businesses, institutions, and governments" (65). This category includes instances of deceitful business practice and fraud. Biegel also would include a wide range of generally dishonest activities in this problem category. The third category includes those activities of "unlawful anarchic conduct" (73). Among these identified activities are copyright violations, online pornography, and online defamation. Finally, the fourth problem category is loosely "inappropriate conduct" (85). Among the behaviors are discriminatory harassment, extremist and hate-related, inappropriate online educational offerings, and offensive or overly aggressive business practices.

If there is perceived to be a cyberspace problem, and a consensus for regulation has developed, then the question becomes how best to regulate? Part II of Beyond Our Control? suggests three broad regulatory models. The first is the "traditional regulation model," using existing legal rules developed out of statute, regulation, and case law. This regulatory model also assumes that new legal tools may of necessity be developed to address novel legal situations. The second approach uses the tools of international agreement and cooperation. These two models are, quite obviously, encompassed within the book's subtitle: Confronting the Limits of our Legal System in the Age of Cyberspace. This substantial limitation appears in Chapter 4 where the "inherent limits" faced by those who prefer regulation through the legal system are addressed.

But, there is a third regulatory model. There is code-based regulation, or the availability and use of software and information architecture to change the very nature of cyberspace. This latter model was, of course, first influentially identified and analyzed by Lawrence Lessig in his seminal work, Code and Other Laws of Cyberspace. Biegel ultimately agrees with Lessig that such code-based regulation is emerging as potentially the most powerful approach.

A substantial portion of Beyond Our Control? illustrates how Biegel's regulatory analysis actually works. In Part III, the author drafts a series of problem solving road maps designed to illustrate the potential for cyberspace regulation. And, it is in the more than 100 pages that make up Part III that we find the heart of the book. In Part III, Biegel focuses on four problems of the type encompassed within each of the four problem categories identified in Chapter 3: cyberterrorism, consumer rights, private digital copying by the average person, and online hate activities. Chapter 12's focus on the possible regulation of online hate activities emphasizes the difficulties fraught in any regulatory scheme. First of all, there is the problem in finding and identifying a consensus which might support regulation of online hate groups and hate activities. Many would not find regulation to be appropriate at all believing that even online hate sites and activities merely reflect the world as it is. The contrary view is, of course, that such hateful activities may in themselves be corrosive to the good order of society and must be rigorously controlled. At least where online hate activities are concerned, Biegel suggests that none of the three regulatory models would entirely suffice. Serious limitations on the application each approach can be identified with each approach.

Suffice it to say that Stuart Biegel's Beyond Our Control? is probably not the final answer to the issue of regulating cyberspace. But suggesting that would be to create a strawman where one might disagree on possible regulatory solutions. Beyond Our Control? is a useful guide to the steps we can take as we determine whether or not regulation is either appropriate or warranted. And, if regulation is found to be appropriate, the steps that can be taken to determine what particular form the regulatory scheme might take. In this respect, Stuart Biegel's work is an excellent textbook. And, it is in supplying a textbook guide to a very difficult field that Biegel can and should be commended. This useful book adds materially to a dynamic, and truly exciting, field of endeavor. This is a book that will be cited by others who write on specific matters relating to the regulation of cyberspace.

1. While not the first to tackle the question of regulation, Andrew Shapiro's 1999 book, The Control Revolution (Public Affairs, 1999), has become one of the more influential and required readings on the topic. Shapiro describes alternative futures that the development of the Internet might take. One is a future of increased individual freedom where individuals are able "to take power from large institutions"; the other a future of institutional limits on the individual. Shapiro attempts to describe a balance between the two, a balance which could result in a new social compact setting out both personal liberty and communal obligation. Lawrence Lessig, in two recent books, has also cogently described the manner in which institutional and societal regulations may seriously limit how the Internet, and our accompanying notion of cyberspace, develops. In his first book, Code and Other Laws of Cyberspace (Basic Books, 1999), Lessig shows readers how the architecture of cyberspace regulates our very notion of what cyberspace is. It was such architecture that not only brought freedom to the individual but also carried serious threats to that very freedom. Lessig more emphatically comes down on the side of individual freedom and creativity in his newest book, The Future of Ideas: The Fate of the Commons in a Connected World (Random House, 2001). Yet Lessig worries about how the "architecture of control" may ultimately trump the very democratic and creative potential that cyberspace gives to the individual.

2. In considering public agenda issues specifically, Biegel is again not alone. An often overlooked book by Leslie David Simon, NetPolicy.Com: Public Agenda for a Digital World (Woodrow Wilson Center Press, 2000), provides a comprehensive study of the Internet's impact on national and international institutions and policies. Simon concludes on the positive -- and optimistic? -- note that "the digital age will surprise us" and "the digital age will not be the last revolutionary wave to challenge humanity" (401). The Simon book complements Biegel's Beyond Our Control? with its focus on the broad strokes of the public agenda relating to cyberspace.

3. Matt Richtel, "New Economy," New York Times (Dec. 4, 2001), C3.

Jerry E. Stephens:
Jerry E. Stephens is branch library manager and research coordinator for the U.S. Court of Appeals in Oklahoma City, Oklahoma.  <Jerry_Stephens@ca10.uscourts.gov>

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