The role of the cyberlawyer
by Andrew D Murray
[ opinion - june 05 ]
As someone who has taught and researched in the field of internet law, or cyberlaw, for the past nine years, I often find it difficult to convince academics and lawyers who work in 'traditional' areas, such as family and property law, of the value of cyberlaw and cyberlawyers. This article, adapted from my forthcoming book, Regulating New Media, is my attempt to justify the subject of cyberlaw, and to illustrate the role of cyberlawyers in understanding this new and complex place.
Introduction
In the spring of 1994 I was a final year undergraduate student at the University of Edinburgh. One afternoon, while working in the library Duncan, a friend and fellow student who was also a part-time software developer, suggested we visit the student microlab. The microlab was the Law School's collection of IBM PCs and Apple Macs, all networked to form a Local Area Network or LAN, and used mostly by students for word processing and instant messaging with friends. He said he had something new and exciting to show me: a wonderful new device which had just been installed. Despite Duncan's obvious enthusiasm, I was quite sceptical. Duncan was an excellent software engineer and tended to get terribly excited by the most mundane of items such as a new PC chipset or an upgrade to the operating system. I saw myself as a lawyer not a computer scientist, as such I was rarely enthralled by such technology. Still, that afternoon he convinced me to come along. Once we were in the lab he logged on and brought up a grainy black and white picture on the monitor. I struggled to make sense of what I was seeing but after a few seconds I discerned that I was looking at a half-full filter coffee pot. I asked what was so exciting about this image. He told me I was looking at a live picture of a coffee pot in the computer laboratory at the University of Cambridge. [1] At first this didn't really make sense to me. How could I be looking at a coffee pot in Cambridge? Duncan then explained to me that the computers in the microlab had recently been installed with a new piece of software called Mosaic which allowed access to a new area on the Internet called the World Wide Web. He went on to explain the basics of the Web and as soon as his explanation was over I was hooked. This simple action of showing me that I could look at a coffee pot 400 miles away by typing a few characters changed the way I thought about computers and technology. I like many millions before and since became an instant devotee of the Web.
Like most users of the Web I was won over by its simplicity. Here was a truly accessible Internet Protocol for the non-technically minded. This simplicity led to an explosion of Internet connectivity in North America and Western Europe throughout the 1990s. I became a regular user of the Web: it provided an excellent research tool for a young academic embarking on a fledgling career, it allowed me to keep in touch easily with my friends after graduation and it provided an easily accessible source of entertainment. I didn't consider it to be anything more than a useful tool. I certainly never considered at the outset of my academic career in 1996 that there was anything of particular interest to lawyers and regulators. I, like many others at that time, saw the Web as a particularly sophisticated telecommunications tool and little else. It allowed users to enter into one-to-many communications through personal WebPages, many-to-many communications through chat rooms and MUDs, and through email it allowed simple one-to-one communications. Thus the Internet, and the Web in particular, allowed us to carry out in a more sophisticated manner, the types of social transactions we had been carrying out for years through broadcasting, everyday social interaction and narrowcast telecommunications systems such as the telephone and the mail system. I thought, as most lawyers at that time were thinking, that the role of the regulator in such technology was limited to enabling the technology to function and to control antisocial practices. I saw regulators as having limited roles such as licensing ISPs, approving technical standards, consumer protection and content control. [2]
The Early Adaptors
Fortunately, not all academic lawyers were thinking this way. In the United States a body of research had grown up around the nascent subject of cyberlaw. Some early cyberlaw theorists saw the potential of the Internet, and the Web, to provide an independent and unregulated social sphere. To these cyber-libertarian theorists, cyberspace was akin to the old West. It was a place where individual freedom was secured by the environment of the space, where government interference was, by design, minimal, and where standards, norms and later laws (if any) would derive from the collective will of the citizens of cyberspace. The unlikely totem of the cyber-libertarian school was an ex-lyricist for the Grateful Dead named John Perry Barlow. As a young man Barlow took over a cattle ranching operation called Bar Cross Land and Livestock in Cora, Wyoming and in 1971 at the age of 24 he became a lyricist for the Grateful Dead. Barlow was both politically astute and a first-rate businessman, and when he sold his ranch in 1988 he threw his considerable energy into something that had become increasingly important to him: examining and questioning the role of technology and networks in society. He announced his arrival on the network scene in 1990 with two historical interventions. The first of these made Barlow famous within the technical community, but the second was more important to the question of the structure and values of the network. First, Barlow sealed his position in the Internet story by becoming the first person to use William Gibson's science fiction term 'cyberspace' to describe the existing global electronic social space. More importantly, though, in July 1990 he, along with creator of Lotus 1-2-3, Mitch Kapor, formed the Electronic Frontier Foundation (EFF). The EFF was central to the development of the cyber-libertarian ethos. The founders of the EFF believed that governments and corporations would seek to control how this new technology would be used by individuals. The aim of the EFF was to seek to protect individual freedom against such intervention in the developing 'cyberspace'. The role of the EFF was therefore to "defend our rights to think, speak, and share our ideas, thoughts, and needs using new technologies, such as the Internet and the World Wide Web." The EFF quickly set to work. Its first action was to assist a small games book publisher from Austin, Texas, named Steve Jackson Games, and several of the company's bulletin board users in raising an action against the United States Secret Service claiming unlawful search and seizure. It followed this by assisting University of California PhD student Daniel Bernstein raise an action against the State Department claiming the restriction on the publication of encryption codes under the United States Munitions List was an unconstitutional restriction of his right to free expression. In both cases the EFF was successful, establishing important principles and freedoms for the Internet community as a whole. Their work started to attract the attention of the legal community, and in particular two law professors David Johnson and David Post. Johnson and Post embraced the cyber-libertarian ethos which linked enthusiasm for electronically mediated forms of living with libertarian ideas on freedom, society and markets. They, like Mitch Kapor and John Perry Barlow, believed that many fundamental freedoms were inherently protected in cyberspace: [3] that the inherent design features of the Internet would render any attempts at state intervention futile. [4]
The high point for the cyber-libertarian thesis was in early 1996. That spring two key cyber-libertarian papers were published. On February 8, Barlow published his now infamous A Declaration of Independence of Cyberspace. This coalesced the cyber-libertarian belief in the unregulability of bits: with Barlow claiming that real-world governments would find it impossible to regulate within 'sovereign' cyberspace. Then, in May, the Stanford Law Review published Johnson and Post's important paper Law and Borders - The Rise of Law in Cyberspace. Here they laid for the first time a legal interpretation of the classical cyber-libertarian contention that regulation founded upon traditional state sovereignty, based as it is upon notions of physical borders, cannot function effectively in cyberspace. Instead, they argued, individuals may move seamlessly between zones governed by differing regulatory regimes in accordance with their personal preferences. Simply put, they viewed the Internet as a medium which would foster regulatory arbitrage and undermine traditional hierarchically structured systems of control. Noting that 'control' emanates at the level of individual networks, they proposed that although forms of hierarchical control might be exerted over specific networks, the aggregate range of such rule sets was unlikely to lead to any form of centralised control of cyberspace. Accordingly, the 'Law of Cyberspace' would largely be determined by a free market in regulation in which network users would be able to chose those rule sets they found most congenial. Johnson and Post maintained that the various dimensions of inter-networking could be governed by "decentralised, emergent law" wherein customary and privately produced laws, or rules, would be produced by decentralised collective action leading to the emergence of common standards for mutual co-ordination. [5] In other words, they believed that the decentralised and incorporeal nature of cyberspace meant that the only possible regulatory system was one which developed organically with the consent of the majority of the citizens of cyberspace. Their views were though about to be challenged by the emergence of a strong counter-argument within the legal community: the development of the cyber-paternalist.
That same year cyber-libertarian views were seriously challenged for the first time by the publication of a series of papers. Several commentators noted that its proponents appeared to base their arguments on an over-simplified understanding of social and political phenomena, and that they adopted a particularly right wing view of regulatory systems. Early critics included Langdon Winner, of the Rensselaer Polytechnic Institute; Reilly Jones, of the Extropy Institute; and Joel Reidenberg, of Fordham Law School. Despite sympathising with the view that inter-networking leads to the disintegration of territorial and substantive borders as key paradigms for regulatory governance, Reidenberg argued that new models and sources of rules were being created in their place. To this end, he identified two distinct regulatory borders arising from complex rule-making processes involving States, the private sector, technical interests, and citizen forces. Each of these borders was seen as establishing the defining behavioural rules within their respective realms of the networking infrastructure. The first set of borders encompassed the contractual agreements among various Internet Service Providers. The second type of border was the network architecture. The key factor at this level, he claimed, was the technical standards because they establish default boundary rules that impose order in network environments. Reidenberg's key contribution to the evolving debate at this stage though was his conceptualisation of a 'Lex Informatica.' This draws upon the principle of Lex Mercatoria and refers to the 'laws' imposed on network users by technological capabilities and system design choices. Reidenberg asserted that, whereas political governance processes usually establish the substantive laws of nation states, in Lex Informatica the primary sources of default rule making are the technology developer(s) and the social processes through which customary uses of the technology evolve. To this end, he argued that, rather than being inherently unregulable due to its design or architecture, the Internet is in fact regulated by its architecture. Therefore, Lex Informatica could be seen as an important system of rules analogous to a legal regime. According to this view, Internet related conflicts and controversies reflect a state of flux in which Lex Informatica and established legal regimes are intersecting. He contended that in the light of Lex Informatica's dependence on design choices, the attributes of public oversight associated with regulatory regimes, could be maintained by shifting the focus of government actions away from direct regulation of cyberspace, toward influencing changes to its architecture.
The emergence of the cyber-libertarian/cyberpaternalist debate in the summer of 1996 led to a symposium on cyberlaw in being held at the University of Chicago. During this symposium, the famous Law and Economics theorist Frank Easterbrook made a powerful and challenging presentation. His paper, entitled Cyberspace and the Law of the Horse, presented to the assembled audience of cyber-lawyers that the subject did not exist. There was, he informed them, no more a 'Law of Cyberspace' than there was a 'Law of the Horse'. Easterbrook charged the audience as being dilettantes; meddling in areas they didn't understand. He insisted that the best way to learn the law applicable to specialised endeavours, such as the Internet, was to study general principles such as property, tort and contract. This gives rise to the question of whether Easterbrook is right. Instead of reading (and writing) textbooks on cyberlaw and cyber-regulation, should we all be studying contract law, torts, property, intellectual property and criminal law? Bluntly, does cyberlaw exist as an extant subject worthy of academic study?
Cyberlaw and the challenge of the 'Law of the Horse'
Easterbrook's paper ignited an impassioned debate on the academic validity of the subject of cyberlaw and the role of cyberlawyers. His charge was quite different from that of the cyber-libertarian school. He did not claim, nor did not wish to claim, that cyberspace was to be treated as a separate and sovereign space due to the nature of 'bits': rather his indictment was that in debating the regulability of this place we had gone beyond the primary question of whether it was a suitable subject of specific regulation in the first place. Powerful advocates of cyberlaw responded immediately in an attempt to refute Professor Easterbrook's challenge. The most compelling response was that of Professor Lawrence Lessig in his Harvard Law Review commentary The Law of the Horse: What Cyberlaw Might Teach. This paper was somewhat of a tour-de-force and had the twin effect of announcing the arrival of Professor Lessig as the leading commentator in cyber-regulatory theory, a position cemented later that year by the publication of his extended essay Code and Other Laws of Cyberspace, and in the minds of most cyber-regulatory theorists, satisfactorily answering the challenges set by Professor Easterbrook. An analysis of Lessig's response to Easterbrook, though, leaves one a little unsettled when examined closely. Professor Lessig chose to answer only one of Easterbrook's challenges and in doing so he believed he had adequately dealt with the question of the academic significance of the subject at large. Others though were not convinced.
The challenge Lessig answered was the narrow one of "what is the value of a cyberlaw course?" Professor Easterbrook in his address had claimed that law schools should only teach courses which "could illuminate the entire law" and that "the best way to learn the law applicable to specialized endeavours is to study general rules." It was on this point that Lessig took the fight to Easterbrook. Professor Lessig countered that unlike Professor Easterbrook, he believed that "there is an important general point that comes from thinking in particular about how law and Cyberspace connect", that "by working through examples of law interacting with Cyberspace, we will throw into relief a set of general questions about law's regulation outside of Cyberspace." Throughout the rest of his commentary Lessig uses examples to illustrate regulatory tensions which arise when real space and cyberspace interface, and then introduces his now famous concept of regulatory modalities and their effects both within and without cyberspace. Professor Lessig's response to Easterbrook is simple and eloquent. While some specialised subjects, such as the Law of the Horse, are without academic merit due to their inability to shed light onto the study of the law at large, there are a few specialised subjects which merit study due to their ability to throw the general principles into relief, and cyberlaw qualifies as such. The force of conviction contained in Lessig's commentary, coupled with the powerful modalities of regulation analysis contained therein seemed to convince many commentators that Professor Lessig had adequately dealt with Professor Easterbrook's charge. Looked at more fully, though, it becomes clear that Lessig has not rebutted the key indictments in Easterbrook's challenge to the cyberlaw community, instead he has simply pled "special circumstances". By demonstrating that the cyber-regulatory community can give something back to the general legal debate Lessig has bought some time for cyberlawyers. He had demonstrated why cyberlawyers may make a contribution to the study of the law, but he had failed to demonstrate why cyberlaw should not be seen as "multidisciplinary dilettantism".
Were it not for the obvious power of Lessig's modalities of regulation thesis, he might have found himself held up as the archetypical model of Easterbrook dilettantism. Professor Lessig's thesis was predicated on the value regulatory theorists at large could draw from his new theory. In effect, he was saying that effects in cyberspace demonstrate challenges from which regulatory theorists may learn. A lesser theory would instantly have left Lessig open to being challenged with committing a "cross-sterilisation of ideas", Easterbrook's label for the "put[ting] together of two fields about which you know little and get the worst of both worlds". Even though Professor Lessig escaped such a fate, he still hadn't truly demonstrated a sound academic foundation for the study of cyberlaw. Many specialised law courses could make unique contributions to the general study of law and legal or regulatory theory: there would though be no foundation for them to be considered academic subjects in their own right. Space law, for instance, has much to offer the law of property by contributing to the analysis of the limits of property and ownership and about trespass and access rights. This does not mean space law should necessarily be recognised as an academic subject. [6] A variation of Professor Easterbrook's challenge was again delivered to the cyberlaw community in 2000 by Joseph Sommer, a lawyer in practice with the Federal Reserve Bank. Sommer's paper Against Cyberlaw, although not as sophisticated as Easterbrook's, raised a new set of challenges. In essence, the challenge of Mr Sommer was that social phenomena, not technologies, define laws and subjects of legal study. He demonstrates his thesis by pointing to the lack of longevity in any technologically defined set of laws. He reminds us that Abraham Lincoln was a 'railroad lawyer' a long forgotten facet of the law, that there never was a law of the steam engine despite the huge social changes it brought about, and that much 19th Century race law could have been listed under a course in cotton gin law: that being the technology which drove much of the development of race law and the law of slavery at that time. These are examples of the failure to develop technologically mediated laws. They demonstrate why "neither Cyberlaw nor the law of the Internet exists, neither can exist... because technology and law are socially mediated, bodies of law do not respect technological boundaries, and technologies do not define law... Just as librarians do not classify books by their associated colour, lawyers should not classify fields of law by their associated technologies." Thus by the end of 2000, cyberlawyers faced two distinct attacks on the academic validity of their subject. The first, set in 1996 by Professor Easterbrook, was that cyberlaw created a risk of multidisciplinary dilettantism or cross-sterilisation of ideas. This claimed that the subject was no more than a fusing of two disparate subject-matters in the worst possible fashion. Although this attack had been met by Professor Lessig, his defence was incomplete. He had not managed to convince the academic jury that cyberlaw was innocent of Professor Easterbrook's charges, although he had made a sterling plea in mitigation which had clearly bought the subject a degree of academic recognition. The second charge, Sommer's, remained unchallenged. This is probably due to the fact that the burgeoning literature in cyber-social theory was deemed to deal with his challenge without the need to make a direct rebuttal. The question still remains though: does cyberlaw exist as an identifiable subject of academic study?
Cyber-society and computer science: cyberlaw's contribution
By the summer of 1997 I had graduated from Law School and had found my first academic job. I was now a lecturer (assistant professor) in Law at the University of Stirling in Scotland. I was teaching intellectual property law, contract, and international trade law, but I hadn't been able to shake off that excitement I had felt as an undergraduate in the spring of 1994. I wanted to develop a course in information technology law, but I didn't really know where to start as such courses were rare in the UK at the time. I decided I needed to understand the technology better before I could develop my new course. To this end I joined several mailing lists, mostly those organised by the Internet Engineering Task Force (IETF) - of which more later. As with many such subscribers, I intended to simply 'lurk': my idea was to immerse myself in the technical culture of the engineering community without revealing myself as being an ill-informed bystander. Throughout that summer, though, list members kept discussing developments in the TCP/IP protocol. I knew what TCP/IP was: Transmission Control Protocol/Internet Protocol is the dual communications protocol which manages and routes all packets of information within the network. I also roughly understood how it worked, but the detail continued to elude me. Therefore, after some weeks of lurking I sent out a request asking for an explanation of how these protocols functioned, and in so doing I revealed myself as an interested, non-technical, lurker. I received one or two replies telling me to get off the list and to seek out lists more suited to my level of knowledge: these thankfully were in the minority. I also received several replies telling me where I could find the information I needed. Among these was a reply from Vint Cerf. He went into great length explaining how TCP/IP worked, its value to the network, and then he explained how he and Bob Kahn had developed these protocols between 1973 and 1978. By throwing my question out into the community I had received a reply from one of the inventors of the protocol. Vint Cerf had never met me and I'm sure he had other demands on his time, yet he had taken the time to write quite a detailed e-mail to me. This demonstrates the power of community within the cyberspace. I believe this community provides the foundation of the answer to Joseph Sommer's social mediation argument.
Sommer's charge against cyberlaw is carried out on two levels. The first, which I have referred to above, is that technological practices seldom provide the framework for bodies of law. Thus the law of the steam engine, railroad and cotton mill have a short lifespan, as it seems will the law of space and of nuclear power. Some technologies do, though, determine new legal processes. Sommer himself discusses oil and gas law and to this list we may add aviation law, telecommunications law, copyright (or the law of the printing press) and media law. Why cannot cyberlaw (or internet law) be added to this illustrious list? Sommer seems determined that it cannot. His reason is that, "only if we consider the Internet to be a singular social phenomenon can we expect to see a law of the Internet... however the internet is far too protean to support only a single set of social practices." This is the application of Sommer's second level attack on cyberlaw, his social mediation argument. This is based in the belief that as both law and technology are social endeavours, each must be understood through the lens of social interpretation. When most technologies, such as the steam engine, pass through the lens, they are split into their component social effects (such as planning laws, contract, torts, trade laws and criminal laws.) Only pure technologies which can pass though the lens unhindered become a bona fide body of law in their own right. Thus oil and gas law is recognised as such as it is of a singular social phenomena, whereas more socially complex technologies, such as the railroad, are split into components. Almost immediately, though, Sommer runs into problems with his thesis. He must deal with bodies of law deriving from such complex technologies. He dismisses the 'law of the telephone', or telecommunications law as "a specialised body of regulatory law, of little interest outside the industry" while copyright law is dismissed as "mediated through the first amendment... not a law of the printing press". These are quite inadequate responses to the complex bodies of rights which surround these technologies. While there is no doubt that much of the foundations of telecommunication law has a basis in industry regulation, it is a much more socially rich body of law than Sommer would suggest. These regulatory regimes ensure vital social provisions such as universal access, interoperability, consumer protection and price controls. There is a socio-legal tradition in the study and teaching of telecommunications law, and although specialised there is no doubt it is a recognised niche legal subject. Similar defences may be made of aviation law, media law and arguably even space law. Each is based on strong theoretical foundations and steeped in the socio-legal tradition. They are socially complex, yet recognisable legal disciplines. Perhaps the weakest provision of Sommer's argument is that copyright law, a long established and respected course of study, has minimal links with its technological foundations. Sommer claims copyright has "always been mediated through the first amendment". This reflects a very US-centric view of the discipline of copyright. Copyright developed in the United Kingdom, not the United States. In fact it took over 100 years for the United States to recognise the copyrights of other nations, and when it eventually did so, this was not provided for through the first amendment, but was merely an extension of already existing protectionist provisions. Prior to the enactment of the Human Rights Act in 2000, the United Kingdom never had a clearly defined "right to free expression"; therefore, UK copyright law could not be mediated through such a right. A study of the history of UK copyright law reveals that copyright developed from 'Letters Patent' which were promulgated by successive monarchs specifically to regulate the challenges posed by the development of the moveable type printing press. [7] Many competing social interests were challenged by this invention: the Churches' control of religious texts, the State's management of political and satirical texts, the monopoly over reproduction rights held by the Stationer's Guilds, and the rights of authors, playwrights and poets. In many ways the printing press caused a similar social upheaval to the Internet. Copyright was the legal response to this. The printing press is only the starting point of a history which demonstrates a symbiotic relationship between technology and copyright law. As technologies for exploiting creativity developed, copyright law evolved. First, the development of the photographic plate and camera in the 1840s saw with the evolution of photography the extension of copyright to photographic images by the Fine Art Copyright Act 1862. This was followed by several extensions to copyright to recognise, and regulate, the new technologies of sound recording, audio and video broadcast by radio waves, film (or moving picture) recording and cable distribution. To this day copyright, with the extension of copyright into digital media, remains mediated by technological developments to a far greater degree than rights of expression.
If it is not the social lens which determines which technological changes merit a body of law, what does? I believe that Sommer was arguing along the correct lines, but that he was attracted by the simpler explanation. He is correct that the social lens determines which technologies merit a body of law, but wrong to assume that it is only "singular social phenomena" which benefit. The actual position is that some technologies have an identifiable socio-legal effect beyond their direct contribution to the fabric of society, while others do not. Thus the aviation industry created a complex set of socio-legal requirements for entry and exit from national airspace, overflying rights, regulation of supersonic travel, emissions, language provisions (English is the international language of the air) and much more. Thus the development of passenger flights had an impact on nearly every corner of law and society, an impact which rather unusually the rail industry did not have. The rail industry was more of a standard transport industry. It promulgated immense social change (the UK did not have a standardised time until Railway Time was introduced) yet had little legal impact. The current legal regimes could cope with almost all changes introduced by railways. Technologies of powerful social impact which are of little or no legal impact find their effects are completely societal with no legal/regulatory effect: these are technologies such as the railroad or the steam engine. Then we have which are similarly of immense social impact but some aspects of this technology goes beyond the social and are also of legal/regulatory effect. These are technologies such as commercial aviation, print and broadcast media and telecommunications. This begs the question, where does the Internet fit into this model?
I believe the answer to that question is to be found in my earlier example of Internet culture. The technologies which are of socio-legal, as opposed to just social, effect are those which create new social challenges requiring a legal/regulatory response. The internet is such a technology: Lawrence Lessig has already demonstrated as much in his paper The Law of the Horse: What Cyberlaw Might Teach. Further, I believe that the fact that cyberspace creates new communities, communities where junior law lecturers can discuss technical matters with senior technicians 6,000 miles away, demonstrates the socio-legal challenge of the Internet. If we examine which technologies give rise to socio-legal implications, the list is overwhelmingly populated with those technologies which gave rise to new communities linked through the medium of the technology: the printing press, radio and television broadcasting technologies, telecommunications and aviation. Where technology fails to create communities, but merely serves them (the steam engine, the cotton gin and arguably the rail network) it never breaks out of the social lens. Cybercommunities are unique and centred around cyberspace. They are creating socio-legal demands. On this basis, cyberlaw passes the refined version of the Sommer social mediation test.
The Easterbrook challenge remains. Professor Easterbrook's argument against Cyberlaw is at the same time more simple and yet more complex than Sommer's. The simplicity of Easterbrook's argument is in its construction: the study of specialised subjects such as cyberlaw or the law of the horse fail to illuminate the general body of legal knowledge and are therefore dilettantism. The complexity is in dealing with what is basically an opinionated standpoint. Easterbrook believes that "beliefs lawyers hold about computers and predictions they make about new technology, are highly likely to be false." I could simply say I disagree, but this fails to rebut the principle. By responding to an opinionated standpoint with a counter-opinion one fails to advance the debate: this is the complexity of Easterbrook's position. To counter the Easterbrook challenge therefore one must engage with his analysis at a more basic level in the hope of challenging the foundations upon which he bases these opinions. To do so I'm going to turn Easterbrook's argument on its head and ask what is the value of a course in law and economics? Professor Easterbrook is, of course, one of the leading lights of the Law and Economics movement. At Chicago Law School he, along with others such as Nobel laureate Ronald Coase and Judge Richard Posner, have schooled the legal world in Chicago supply-side economics. Such is Easterbrook's reputation for market efficiency arguments that Lawrence Lessig tells us that one year in his cyberlaw class a student created an online character called FEasterbrook who would substitute the word fair with efficient in all conversations with him, thus "this is not fair" became "You mean it's not efficient". What, though, does this contribute to our understanding of the law in general? Easterbrook, and his colleagues, would no doubt point to several new approaches to contract, property, torts and criminal law which have developed as part of the Chicago Law School contribution to the general understanding of law through the applied study of law and economics. He would, quite rightly, be extremely proud of this contribution. In the 1950's, when the discipline of Law and Economics was in its infancy, how would he have reacted to a charge that: "beliefs lawyers hold about economics and predictions they make about new developments, are highly likely to be false"? Certainly he would not have acquiesced. He would surely have pointed to the work of respected economists such as Ronald Coase who were happy to contribute to this burgeoning academic study. In fact he does as much in his 1996 address saying, "the University of Chicago offered courses in Law and Economics, and Law and Literature, taught by people who could be appointed to the world's top economics and literature departments." This is a vital structural support for Easterbrook's argument, it is also its weakness. Here he acknowledges, albeit implicitly, that law, as a social science, has a duty to listen to, and engage in discussion with, other social science subjects. He lists literature and economics as partner subjects but equally the list of 'acceptable' subjects could have included, sociology (law and society), anthropology, philosophy and political science. Why is law and society or law and anthropology acceptable, but law and equine studies (or the Law of the Horse) not? The answer is now clear: whereas anthropology and sociology are identifiable, and accepted, social science subjects which may illuminate and influence our wider understanding of the law, understanding the mechanics of trading, training and running horses, will not offer the same contribution. Law must not be seen in isolation: it is part of a wider community of social sciences. What about cyberlaw? Unfortunately the attitude represented by Easterbrook is one which is all too common among 'classical' social scientists. [8] Those who study and work with computers have long been discriminated against by the wider academic community. Computer science was seen for many years not to be a truly academic subject. In the 1950s computer scientists were dismissed as 'technicians' by those with a background in social and natural sciences. At MIT's Lincoln Laboratory, a leading computer research centre, only fully fledged physicists and mathematicians were allowed to join the research staff. However a group of Computer Scientists, led by Frank Heart, broke through this glass ceiling and by the late 1960s a degree of academic respectability had been obtained by early graduates in computer Science such as Vint Cerf, Steve Crocker and Jon Postel. Their efforts saw computing science (or information systems) gradually establish itself as a recognised academic subject across college campuses in the United States, and into the universities of Europe. By 1979 there were 120 academic computer science departments across the US alone. It took nearly 30 years, but by 1980 computer science was accepted as a valid subject of academic inquiry. One of the reasons why it took so long to be recognised is that it straddles the boundary between the natural sciences and the social sciences. Some computer scientists look very much like physicists or mathematicians in their chosen field of study, while others look very much like sociologists or even lawyers. The Massachusetts Institute of Technology (MIT), one of the world's leading institutions for the study of natural sciences, is home to one of the oldest and most respected computer science departments. At MIT the subject was historically approached as a development of the study of mathematics and physics. Now the world-leading Laboratory for Computer Science (LCS) provides an umbrella for researchers of diverse backgrounds. The LCS is home to 23 research groups which support just over 500 staff, including approximately 100 faculty and research staff and 300 graduate students. The Laboratory's research falls into seven principal categories, [9] which encompasses all aspects of Computers, Technology and Society. It foundations as a centre of technological excellence may be found in its programmes in Network Design, Architecture and Software. It has also broadened its horizons to examine the effects Computers and Information Technology (C&IT) are having on society. Research programmes such as its Theory programme and its Interfaces and Applications programme, as well as its participation in Project Oxygen, a project aimed at inventing and developing pervasive, human-centered computers, demonstrate that the Laboratory now takes a holistic approach to C&IT research. Similarly, the London School of Economics and Political Science (LSE), long recognised as one of the leading social science institutions in the world, has a flourishing Department of Information Systems. Here researchers carry out leading edge social science research examining the effects of computers and digitisation on society at large. C&IT research, in particular network theory, is now quite clearly accepted by the academic community as a valid subject of social science research. Therefore, one cannot distinguish computer science from any of the other accepted bodies of social science research such as economics, literature, sociology or politics. It, therefore, must be the case that lawyers, and computer scientists can learn from each other in a process of debate and discussion. Like the 'classical' social sciences listed, C&IT research is an identifiable social science which may illuminate and influence our understanding of the law. We must therefore recognise 'Law and Computer Science' (or cyberlaw) as more than simply multidisciplinary dilettantism. As such we may rebut Easterbrook's charge.
The role of the cyberlawyer therefore seems to be assured. Despite strong challenges to both the academic validity, and rigorousness of, the subject it can be demonstrated to be both legitimate and academically sound. Lawyers, regulators and computer scientists have much to learn from studying this subject. It is to be hoped they approach it with open eyes and an open mind.
Notes
1 This is the now famous Trojan Room Coffee Pot. The coffee pot was first broadcast across a closed network at the computer laboratory in 1991. A small programme called XCoffee was developed by Paul Jardetzky allowing researchers throughout the building to see if there was coffee in the pot before leaving their office for a refill. On 22 November 1993 this closed network went public when Daniel Gordon and Martyn Johnson updated the frame grabber and put the coffee pot and the fledgling World Wide Web - making it the first ever Webcam. The coffee pot remained online until 22 August 2001, after which the £25 pot was sold for £3,350 via an internet auction site. A non-technical biography of the coffee pot by Quentin Stafford-Fraser is available at www.cl.cam.ac.uk/coffee/qsf/coffee.html [Back]2 The need for content control was immediately apparent. One of the most adaptable industries is the adult entertainment industry. It was a first mover/adaptor in the introduction of printing, photography, cinematography, video, home computing, Bulletin Board Systems, the Web and most recently third generation mobile phone technology. The relationship between technology and the sex industry is discussed in Van Der Leun, '"This is a Naked Lady": Behind Every New Technology is... Sex?', Wired 1.01 March/April 1993. As a result with every new technology there has been an established reaction that content control quickly follows. For a discussion of censorship in the movie industry see Miller, Censored Hollywood: Sex, Sin, and Violence on Screen, Turner, Paducah Kentucky, 1994. See also the effective, Video Recordings Act 1984 (videotapes) and the abortive Communications Decency Act (Internet Communications). [Back]
3 This school may more correctly be referred to as classical Cyber-libertarianism. Following the publication of Lawrence Lessig's Code and Other Laws of Cyberspace, Basic Books, New York, 1999, the cyber-libertarian school recognised the inherent regulability of cyberspace and developed a Neo-cyberlibertarian school which calls for the application of libertarian values within Cyberspace and for the absence of state intervention within this sphere. See D Post, 'What Larry Doesn't Get: Code, Law and Liberty in Cyberspace' 52 Stan. LR 1439 (2000). [Back]
4 This is most famously put in John Perry Barlow's A Declaration of Independence for Cyberspace, where he said to the 'Governments of the Industrial World... You have no sovereignty where we gather... You have no moral right to rule us nor do you possess any methods of enforcement we have true reason to fear'. Available at: www.eff.org/~barlow/Declaration-Final.html. [Back]
5 This notion parallels the concept of polycentric or non-statist law. See T Bell, 'Polycentric Law', 7(1) Humane Studies Review 4 (1991/92); T Bell, 'Polycentric Law in the New Millennium.' Paper presented at The Mont Pelerin Society: 1998 Golden Anniversary Meeting, at Alexandria Virginia. Available at: www.tomwbell.com/writings/FAH.html. [Back]
6 The author would like to stress that equally he does not claim Space Law is not of academic merit. [Back]
7 In the two hundred years following the development of the Printing Press successive monarchs used Letters Patent to control the publishing industry. The first of these is probably that of Henry VII, who in 1504 appointed William Facques as the first royal printer, granting him the exclusive right to print official documents. Several such grants and orders followed including Henry VIII's order of 16 November 1538 which provided that 'all new books had to be approved by the Privy Council before publication.' Most famous among these Letters Patent is the Statute of Mary, 1557 which 'granted a royal charter that limited most printing to members of the Stationers' Company, and empowered the stationers to search out and destroy unlawful books.' Many commentators now see the Statute of Mary as the precursor of the Statute of Anne, 1709 which is recognised as the world's earliest Copyright Act. For a discussion of the history of English Copyright see W Patry, Copyright Law and Practice 7th ed, BNA Books, Washington DC, 1996, Ch.1. [Back]
8 I am using the term 'classical' here to denote social scientists who elevate the classical social science disciplines such as sociology, anthropology, economics, politics and history above 'modern' social sciences such as business studies, industrial relations, gender studies and computer science and information systems. [Back]
9 These Are: Networks and Systems, Architecture, Software, Theory, Interfaces and Applications, Computer Science and Biology, and The Worldwide Web. [Back]
