Ssrn id310020
Upcoming SlideShare
Loading in...5
×
 

Some of the Slideshare Presentations that I upload were created by others . All are worth lookng at and studying. I am Stephen Darori on Linkedin. If you think we have some Synergy Now or maybe in the ...

Some of the Slideshare Presentations that I upload were created by others . All are worth lookng at and studying. I am Stephen Darori on Linkedin. If you think we have some Synergy Now or maybe in the Future., Do send me an Invitation to connect on Linkedin. I will never refuse an Invitation.

Statistics

Views

Total Views
425
Views on SlideShare
425
Embed Views
0

Actions

Likes
0
Downloads
0
Comments
0

0 Embeds 0

No embeds

Accessibility

Categories

Upload Details

Uploaded via as Adobe PDF

Usage Rights

CC Attribution-NoDerivs LicenseCC Attribution-NoDerivs License

Report content

Flagged as inappropriate Flag as inappropriate
Flag as inappropriate

Select your reason for flagging this presentation as inappropriate.

Cancel
  • Full Name Full Name Comment goes here.
    Are you sure you want to
    Your message goes here
    Processing…
Post Comment
Edit your comment

Ssrn id310020 Ssrn id310020 Document Transcript

  • THE GEORGE WASHINGTON UNIVERSITY LAW SCHOOL PUBLIC LAW AND LEGAL THEORY WORKING PAPER NO. 38 2002 The Problem of Perspective in Internet Law Professor Orin S. Kerr Georgetown Law Journal, Vol. 91, February 2003 This paper can be downloaded without charge from the Social Science Research Network Electronic Paper Collection: http://ssrn.com/abstract_id=310020
  • The Problem of Perspective in Internet Law ORIN S. KERR* INTRODUCTION The lawyer’s quintessential task is to apply legal rules to facts.1 When we apply law to the Internet, however, a difficult question arises: What are the “facts” of the Internet? The Internet’s facts depend on whether we look to physical reality or virtual reality for guidance. We can model the Internet’s facts based on virtual reality, looking from the perspective of an Internet user who perceives the virtual world of cyberspace and analogizes Internet transactions to their equivalent in the physical world.2 Alternatively, we can model the facts based on the physical reality of how the network operates. From this perspective, Internet transactions can be understood based on how the network actually works “behind the scenes,”3 regardless of the perceptions of a user. Because the Internet can generate a virtual reality, it offers two distinct sets of facts: one based on physical reality, the other based on virtual reality. The Internet’s ability to generate a virtual reality creates what I will call the problem of perspective in Internet law. The problem is that whenever we apply law to the Internet, we must first decide whether to apply the law to the facts as seen from the viewpoint of physical reality or virtual reality. In this Article, I will refer to the viewpoint of virtual reality as the “internal perspective” of the Internet, and the viewpoint of physical reality as the “external perspective.” This Article argues that the problem of perspective pervades Internet law, and that the nature and shape of Internet law depends upon how it is resolved in particular cases. In a surprising number of situations, we arrive at one result when applying law from an internal perspective and a different result when applying law from an external perspective. In fact, many of the major disputes within the field of “cyberlaw”4 boil down to clashes between internal and external perspectives. To complicate matters, neither perspective holds an a priori claim to greater legitimacy. Both internal and external perspectives can appear perfectly viable depending on the circumstances, and courts and commen- * Associate Professor, George Washington University Law School. Thanks to Rachel Barkow, Amy Barrett, Laura Berger, James Boyle, Robert Brauneis, Brad Clark, Erica Hashimoto, Dan Hunter, Mark Lemley, Doug Lichtman, Chip Lupu, Dan Markel, Jonathan Molot, Richard Pierce, Jeffrey Rosen, Michael Selmi, Joe Singer, Daniel Solove, Peter Swire, Molly Van Houweling, and Tim Wu, as well as the participants in the George Washington University Law School faculty workshop. I benefited greatly from presenting early versions of this piece before the law faculties at George Washington, Northwestern, Rutgers-Newark, Cardozo, Washington University, and Boston College. 1. See, e.g., EDWARD H. LEVI, AN INTRODUCTION TO LEGAL REASONING 1–3 (1949). 2. See infra notes 8–9 and accompanying text. 3. See infra notes 10–12 and accompanying text. 4. See Lawrence Lessig, The Law of the Horse: What Cyberlaw Might Teach, 113 HARV. L. REV. 501, 501 (1999). 357
  • 358 THE GEORGETOWN LAW JOURNAL [Vol. 91:357 tators switch between them frequently without even recognizing the change.5 The goal of this Article is to explain the problem of perspective, to show its importance, and to offer an approach that can help lead to its solution. I argue that we need to be aware of the problem of perspective and develop legal tools that can help us choose between real and virtual understandings of the Internet when we apply law to it. I also contend that the problem of perspective is a new problem, or at least a new twist on an older one. Although prior technologies such as the telephone hinted at the clash in narrow ways,6 computer networks and the Internet provide the first widespread technology that creates a virtual world for its users that can compete on an equal footing with the real one. As a result, Internet law prompts us to confront the problem of perspective for the first time. I will develop my argument in four parts. In Part I, I explain the conceptual distinction between internal and external understandings of the Internet. The Part explores how and why both perspectives offer plausible means of modeling the facts of the Internet and how the shape of Internet law hinges on whether we approach the law of the Internet internally or externally. Part II shows that the choice between internal and external perspectives presents a recurring and powerful theme in Internet law. This Part explores the importance of the problem of perspective in four areas of law. The analysis begins with the Fourth Amendment in cyberspace, and in particular Fourth Amendment restrictions on obtaining e-mail and conducting remote network searches; turns next to Internet governance, with particular focus on the ideas of Lawrence Lessig and the scope of the state action doctrine; follows with computer crime law, where it shows how internal and external approaches have been raised in appellate cases involving online bomb threats and the distribution of obscene materials over the Internet; and concludes with copyright law, focusing on the recent copyright dispute over the Internet music service MP3.com. Within each area, I show how a range of seemingly unrelated disputes in fact all reflect a clash between internal and external viewpoints. Part III explains the significance of the problem of perspective. It shows how the problem of perspective reflects the universalization of themes presaged in limited ways by the telephone and builds upon and extends theories of systems developed by H.L.A. Hart and others. This Part also argues that we need to develop a new awareness of the problem of perspective, as well as a framework to help mediate between the internal and external perspectives in particular cases. Part IV offers a tentative normative framework for choosing which perspective to apply in a given case. The framework approaches the problem of perspective as a problem of fidelity, in which our goal should be to select the 5. See infra Part II. 6. I discuss the precursors to the problem of perspective in prior technologies such as the telephone and the telegraph in section III.A.
  • 2003] THE PROBLEM OF PERSPECTIVE IN INTERNET LAW 359 perspective that best reflects the judgments and function of preexisting law. Under this framework, our first step should be to study the legal doctrine for signals that the law already reflects an internal or external approach. When applicable cases or statutes reveal a particular orientation, we should adopt that orientation. When doctrine alone does not answer which perspective should apply, our second step should be to adopt the perspective of the party that the law seeks to regulate. As with the first method, this approach is rooted in fidelity to existing law: It seeks to transfer the law’s regulatory scheme as directly and completely as possible from the physical world to the Internet. I. THE INTERNAL AND EXTERNAL PERSPECTIVES IN INTERNET LAW A. THE PROBLEM OF PERSPECTIVE In the 1999 science fiction thriller The Matrix,7 Keanu Reeves plays a computer hacker named “Neo” who learns that the reality he has known since birth is merely a virtual reality created by a computer network known as the Matrix. The real Neo lies in a semicomatose state attached to the network, to which he and others have been connected by advanced computers that have taken over the world and sap energy from humans while occupying their minds with virtual reality. Neo ends up joining the rebel forces trying to destroy the Matrix, and the movie jumps several times between the virtual world inside the Matrix and the real world outside of the Matrix. The movie presents us with two different realities, two existing worlds. The first reality is the virtual world that we experience inside the Matrix, and the second is the “real” world that we experience outside the Matrix. In addition to being a fun movie, The Matrix points out an important problem that arises when we try to understand the nature of computer networks in general and the Internet in particular. Like Neo confronting the Matrix, we can think about the Internet in two ways, virtual and real. The virtual perspective is like the perspective inside the Matrix: it accepts the virtual world of cyberspace as akin to a reality. Of course, unlike Neo, we know all along that the virtual world that the computer generates is only virtual. But as we try to make sense of what the Internet is, to understand what we experience online, we might decide to treat that virtual world as if it were real. I will call this virtual point of view the internal perspective of the Internet. The internal perspective adopts the point of view of a user who is logged on to the Internet and chooses to accept the virtual world of cyberspace as a legitimate construct.8 To this user, a computer connected to the Internet provides a window to a virtual world that is roughly analogous to the physical world of 7. THE MATRIX (Warner Bros. Pictures 1999). Warner Bros. maintains a website for the movie at http://whatisthematrix.warnerbros.com (last visited Jan. 5, 2003). 8. John Perry Barlow helped popularize the term “cyberspace” with his “Declaration of the Independence of Cyberspace.” See http://www.eff.org/ϳbarlow/Declaration-Final.html (last visited Jan. 5, 2003) (“Governments of the Industrial World, you weary giants of flesh and steel, I come from
  • 360 THE GEORGETOWN LAW JOURNAL [Vol. 91:357 real space. The user can use her keyboard and mouse to go shopping, send mail, visit a chat room, participate in an online community, or do anything else she can find online.9 The technical details of what the computers attached to the Internet actually do “behind the scenes” don’t particularly matter. What matters is the virtual world of cyberspace that the user encounters and interacts with when he or she goes online. We can also understand the Internet from a different perspective. Like Neo when he is outside the Matrix, we can look at the Internet from the point of view of the physical world, rather than the virtual one. I will call this the external perspective of the Internet. The external perspective adopts the viewpoint of an outsider concerned with the functioning of the network in the physical world rather than the perceptions of a user. From this external viewpoint, the Internet is simply a network of computers located around the world and connected by wires and cables.10 The hardware sends, stores, and receives communications using a series of common protocols.11 Keyboards provide sources of input to the network, and monitors provide destinations for output. When the Internet runs properly, trillions of zeros and ones zip around the world, sending and receiving communications that the computers connected to the network can translate into commands, text, sound, and pictures. From the external perspective, the fact that Internet users may perceive that they have entered a virtual world of cyberspace has no particular relevance. These perceptions reflect the fact that software designers often garnish their applications with icons, labels, and graphics to help novices understand and use them—for example, by writing e-mail programs so that e-mail looks and feels like postal mail.12 These superficialities have no deeper meaning from the external perspective. What matters is the physical network and the technical details of how it works, not the easily manipulated perceptions of Internet users. Both internal and external understandings of the Internet should ring true to most of us. The Internet is a physical network, and it can create a virtual world for its users that can appear sufficiently realistic to its users to make a plausible claim for equal footing with the physical world.13 But the key for us is that by Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather.”). 9. See David G. Post, “The Free Use of Our Faculties”: Thomas Jefferson, Cyberspace, and the Language of Social Life, 49 DRAKE L. REV. 407, 410 (2001). 10. See Reno v. Am. Civil Liberties Union, 521 U.S. 844, 849 (1997) (describing the Internet as “an international network of interconnected computers.”). 11. See PRESTON GRALLA, HOW THE INTERNET WORKS 6–7 (1999). 12. See NATHAN J. MULLER, DESKTOP ENCYCLOPEDIA OF THE INTERNET 87–95 (1999). 13. See Charles Nesson & David Marglin, The Day the Internet Met the First Amendment: Time and the Communications Decency Act, 10 HARV. J. L. & TECH. 113, 121 (1996) (“The Internet at present is mostly text and still photo, but again, the situation is changing daily. Its future promises the supercharged impact of virtual reality and interactivity.”); David R. Johnson & David Post, Law and Borders—The Rise of Cyberspace, 48 STAN. L. REV. 1367, 1367 (1996) (“Cyberspace challenges the
  • 2003] THE PROBLEM OF PERSPECTIVE IN INTERNET LAW 361 generating a virtual reality, the technology in a sense leaves us with two Internets, rather than one.14 We have an external version of the Internet, and also an internal one. One is physical, the other virtual.15 B. PERSPECTIVE AS A PROBLEM OF LAW Why does this matter to lawyers and to the nature of Internet law? It matters because legal outcomes depend on facts, and the facts of the Internet depend on which perspective we choose.16 This is a very practical problem. The basic task of a lawyer is to apply legal rules to facts—to apply law to an understanding of reality. In the case of the Internet, however, two competing understandings of reality exist. We have a virtual reality from the internal perspective and a physical reality from the external perspective. This means that we face a choice of which perspective to use when applying law to the Internet. Do we decide to follow the internal perspective of virtual reality or the external perspective of physical reality? Which version of the Internet should we pick before applying the law to it? By choosing the perspective, we choose the reality; by choosing the reality, we choose the facts; and by choosing the facts, we choose the law. We can look at this another way by noting the differences between what happens when we apply law to the Internet from an internal versus an external perspective. From the internal perspective of an Internet user, the Internet is cyberspace, and we apply law to the Internet by trying to map the physical world of “realspace” onto the virtual world of cyberspace.17 We look for analogies between cyberspace and realspace, and try to match the rules between them.18 To the external observer, in contrast, the Internet is the physical network, and we apply law to the Internet by applying the law to the electronic transactions underlying the network’s operation. This does not necessarily mean that the Internet must be viewed only as 0s and 1s, any more than modeling the law’s traditional reliance on territorial borders; it is a ‘space’ bounded by screens and passwords rather than physical markers.”). 14. In an earlier essay, I attempted to describe a similar phenomenon by referring to Georges Seurat, whose paintings of nineteenth century Paris consist entirely of small dots. See Orin S. Kerr, Are We Overprotecting Code? Thoughts on First-Generation Internet Law, 57 WASH. & LEE. L. REV. 1287, 1287 (2000). We can understand Seurat’s paintings in two ways: We can look at them “close-up” as just a collection of dots, or else we can step back and see them as depictions of nineteenth century Paris. I argued that the Internet is similar: we can see it as just bits and bytes, like the close-up perspective of Seurat’s paintings, or else we can see it as the virtual world of cyberspace, like viewing a Seurat painting from a distance. See id. at 1287–88. The correspondence between my former and current approach is not exact. However, the “close-up” version of the Internet roughly reflects an external perspective, and the version at a distance generally tracks the internal perspective. 15. Cf. Timothy Wu, Essay, Application-Centered Internet Analysis, 85 VA. L. REV. 1163, 1189 n.70 (1990) (noting the distinction between application layers and networks layers as represented in the International Organization for Standardization’s Open Systems Interconnection model). 16. See, e.g., JEROME FRANK, LAW AND THE MODERN MIND xii–xiv (1949). 17. See Dan Hunter, Cyberspace as Place, and the Tragedy of the Digital Anticommons, 91 CAL. L. REV. (forthcoming February 2003) (discussing applications of Internet law that view cyberspace “as a place.”); Mark Lemley, Place and Cyberspace, 91 CAL. L. REV. (forthcoming February 2003) (same). 18. See Kerr, supra note 14, at 1289.
  • 362 THE GEORGETOWN LAW JOURNAL [Vol. 91:357 physical world requires us to model sounds as pressure waves or light as photons of energy. But it does mean that we look for analogies between realspace and the behind-the-scenes action that the computers connected to the Internet process and complete. These two approaches are similar to each other and also quite different. In both the external and internal cases, we apply law to “the Internet.” However, our model of what that Internet is—and therefore what Internet law is—varies dramatically depending on the perspective we choose. The law is contingent on the facts, and the facts are contingent on our perspective. What makes this problem unusually interesting is that there is no particular correlation between internal and external renderings of the Internet’s facts. The real produces the virtual, but the virtual need not reflect the real. Significant changes in the behind-the-scenes workings of the Internet can go entirely unnoticed by users.19 At the same time, minor changes in computer code can have a dramatic impact on users’ experiences.20 A typical user immersed in the internal perspective can be blissfully unaware of the complex inner working of the Internet. The lack of correlation between the real and the virtual has profound implications for Internet law. It means that the legal outcomes reached using an internal set of facts exist independently from outcomes reached with an external set of facts. When we apply the law to the facts, an internal perspective will take us down one path, and an external perspective will take us down another. The two paths may happen to converge, but there is no reason to think they will. In effect, we not only have two Internets, but two versions of Internet law. Every time we apply law to the Internet, we will have two possible outcomes: an internal outcome and an external outcome. The two outcomes may happen to match in some cases. In many cases, however, the choice of perspective proves outcome-determinative. Consequently, the shape of Internet law hinges on our choice of perspective. C. AN EXAMPLE: SURFING THE WEB All of this may seem rather abstract, so an example may help. Consider what happens when an Internet user surfs the web. Imagine that an Internet user opens up a web browser and types in “www.amazon.com,” and moments later the homepage of Amazon.com appears on the viewer’s screen. How might we model this event? How can we develop a factual picture of what has happened, so that we can later determine the legal consequences of accessing a webpage? This is easy from an internal perspective. The user has visited Amazon.com’s 19. The differing operations of popular e-mail programs provide an apt comparison. E-mail programs can work in fairly different ways, but those contrasts are unknown to the casual user. See MULLER, supra note 12, at 91–95. 20. See LAWRENCE LESSIG, CODE AND OTHER LAWS OF CYBERSPACE 6 (1999) (explaining that “the software and hardware that make cyberspace what it is regulate cyberspace as it is”).
  • 2003] THE PROBLEM OF PERSPECTIVE IN INTERNET LAW 363 website, going to Amazon.com’s home on the Internet. The user has visited Amazon.com’s virtual store much like a person might visit a store in the physical world, traveling from one point in cyberspace to another. Of course, we realize that the user has not actually traveled anywhere. The user is just sitting in front of the screen. But from an internal perspective, the essential experience of surfing Amazon.com can be captured by comparing it to visiting a store. From an external perspective, however, the event appears quite different— and significantly more complicated. Behind the scenes, the simple act of typing “www.amazon.com” into a web browser triggers a series of responses from different computers connected to the Internet. The browser begins by sending out a request across the Internet to a special type of computer known as a Domain Name System (DNS) server.21 The browser’s request asks the DNS server to translate the letters of the website address “amazon.com” into an “Internet Protocol” or “IP” address, which is a series of numbers that computers connected to the Internet understand as an address akin to a phone number.22 The DNS server will respond that “www.amazon.com” translates into the IP address “207.171.184.16.”23 The user’s browser then issues another request, this time directed to “207.171.184.16,” asking it to send a set of data files back to the browser. Amazon.com’s computer will receive the request and then send data back to the browser. The browser will receive the data and display it on the user’s screen. The resulting images and text appear in the form of the Amazon. com webpage that the user requested.24 Notice that the internal and external perspectives have produced two different accounts of the same event. One model of the facts follows the virtual perspective of the user, and another model follows the behind-the-scenes perspective of how the Internet actually works. From the internal perspective, visiting Amazon.com resembles visiting a store. The user types in the address, and a moment later is paying a virtual visit to Amazon.com’s site. From the external perspective, visiting Amazon.com resembles calling Information and asking for Amazon. com’s phone number, then dialing the number and asking the representative to send you the latest Amazon.com catalog. The single event of surfing the web produces two set of facts, one internal and the other external. As a result, when we need to apply law to the act of visiting a website, we can apply that law to two different sets of facts, which can produce two different outcomes.25 Note that I have not yet mentioned legal theory. Much of the scholarship on 21. See MULLER, supra note 12, at 71–74 (explaining the function and configuration of DNS servers). 22. See id. at 222–23 (explaining IP addresses). 23. This can be verified in several ways, among them by typing in “207.171.184.16” into any web browser that is connected to the Internet. The browser will direct the user to “http://www.amazon.com.” 24. See MULLER, supra note 12, at 222–23. 25. See Maureen O’Rourke, Property, Rights and Competition on the Internet: In Search of an Appropriate Analogy, 16 BERKELEY TECH. L.J. 561, 580 (2001) (“[C]ourts emphasize different factors depending on whether they focus on the website . . . or the tangible server on which it resides . . . .”).
  • 364 THE GEORGETOWN LAW JOURNAL [Vol. 91:357 Internet law focuses on normative questions of theory: on what the law should be and how it should or should not change when it moves from the physical world to the Internet.26 These are vitally important questions. However, the problem of perspective arises before we reach them. Before applying the law, we must first develop a mental picture of existing facts upon which the law could apply. The problem of perspective focuses on how we develop that mental picture. Although theory may be needed to resolve the problem of perspective, we do not need theory to recognize it. II. THE POWER OF PERSPECTIVE: FOUR EXAMPLES This Part reveals the importance of perspective by showing how it influences the shape and nature of Internet law across a wide range of substantive areas. The analysis showcases four unrelated fields of law and explains how the problem of perspective affects the shape of law within each. It begins with the Fourth Amendment in cyberspace, and in particular Fourth Amendment restrictions on obtaining e-mail and conducting remote network searches; turns next to Internet governance, with particular focus on the ideas of Lawrence Lessig and the scope of the state action doctrine; follows with computer crime law, where it shows how internal and external approaches have been raised in appellate cases involving online bomb threats and the distribution of obscene materials over the Internet, as well as in the Supreme Court’s decision in Reno v. American Civil Liberties Union;27 and concludes with copyright law, focusing on the recent copyright dispute over the Internet music service MP3.com. The examples in this Part do not present an exhaustive list of legal disputes triggered by the clash between internal and external perspectives. To the contrary, the examples merely offer a few glimpses at a broader phenomenon that occurs when law meets the Internet. By studying these examples, however, we can appreciate the importance of the problem of perspective and become aware of how it influences Internet law. A. THE FOURTH AMENDMENT IN CYBERSPACE The Fourth Amendment law of search and seizure offers a rich panoply of situations in which the distinction between internal and external perspectives takes on critical importance.28 More than most areas of law, Fourth Amendment jurisprudence is heavily spatial:29 the rules speak of rights to access some spaces but not others,30 and the constitutionality of a search often hinges on the 26. See sources cited infra notes 129–33. 27. 521 U.S. 844 (1997). 28. See U.S. CONST. amend. IV. 29. See Erik G. Luna, Sovereignty and Suspicion, 48 DUKE L. J. 787, 838 (1999) (noting the “spatial orientation” of the Fourth Amendment). 30. For example, search warrants can be issued only to search specific places for specific evidence. See Walter v. United States, 477 U.S. 649, 657 (1980) (noting that “[b]ecause indiscriminate searches and seizures conducted under the authority of ‘general warrants’ were the immediate evils that
  • 2003] THE PROBLEM OF PERSPECTIVE IN INTERNET LAW 365 type of space involved.31 As a result, the choice between internal and external perspectives presents a recurring theme of the Fourth Amendment in cyberspace. I will explore the impact of perspective on the Fourth Amendment in cyberspace by examining two hypotheticals. Both raise important questions that the courts are just beginning to confront and have not yet resolved. The first hypothetical considers whether the Fourth Amendment requires the police to obtain a search warrant to obtain e-mail from an Internet service provider. The second hypothetical asks whether a search warrant that authorizes the search of a computer connected to a network also implicitly authorizes the search of remotely stored files that are virtually present on the network. 1. Do the Police Need a Warrant to Obtain E-mail? Imagine that A sends an e-mail to his friend B. Two police officers learn about the e-mail and believe that it may reveal a nefarious criminal conspiracy. The officers agree that they should try to obtain a copy of the e-mail to prove the conspiracy. They confront a legal question: what kind of legal process must they follow to obtain the e-mail? Does the Fourth Amendment require them to obtain a search warrant? Or can they obtain the e-mail with less process than a search warrant? The answer depends largely upon whether they apply an internal or external perspective of the Internet. Imagine that the first officer applies an internal perspective of the Internet. To him, e-mail is the cyberspace equivalent of old-fashioned postal mail. His computer announces, “You’ve got mail!” when an e-mail message arrives and shows him a closed envelope.32 When he clicks on the envelope, it opens, revealing the message. From his internal perspective, the officer is likely to conclude that the Fourth Amendment places the same restriction on government access to e-mail that it places on government access to ordinary postal mail. He will then look in a Fourth Amendment treatise for the black letter rule on accessing postal mail. That treatise will tell him that accessing a suspect’s mail ordinarily violates the suspect’s “reasonable expectation of privacy,” and that therefore the officer must first obtain a warrant.33 Because e-mail is the equiva- motivated the framing and adoption of the Fourth Amendment . . . that Amendment requires that the scope of every authorized search be particularly described.”) (internal quotations and citations omitted). 31. See generally Ronald J. Allen & Ross M. Rosenberg, The Fourth Amendment and the Limits of Theory: Local Versus General Theoretical Knowledge, 72 ST. JOHN’S L. REV. 1149 (1998) (noting that the Fourth Amendment case law has created very specific and distinct rules for different spaces). 32. A sound recording of a voice saying “You’ve got mail!” is played whenever an America Online (AOL) customer logs on to AOL and unread e-mail has been stored in the account. See America Online v. AT&T Corp., 243 F.3d 812, 815 (4th Cir. 2001) (“[I]n connection with its e-mail service, AOL advises its subscribers that they have received e-mail by displaying the words ‘You Have Mail,’ by playing a recording that announces, ‘You’ve got mail,’ and by depicting an icon of a traditional mailbox with the red flag raised.”). 33. See Ex Parte Jackson, 96 U.S. 727, 732 (1877); 2 W. LAFAVE, SEARCH & SEIZURE § 3.7(c), at 362 (3d ed. 1996).
  • 366 THE GEORGETOWN LAW JOURNAL [Vol. 91:357 lent of postal mail, the officer will conclude that the Fourth Amendment requires him to obtain a warrant before he can access the e-mail.34 Imagine that the second police office approaches the same problem from an external perspective. To him, the facts look quite different. Looking at how the Internet actually works, the second police officer sees that when A sent the e-mail to B, A was instructing his computer to send a message to his Internet Service Provider (ISP) directing the ISP to forward a text message to B’s ISP.35 To simplify matters, let’s say that A’s ISP is EarthLink, and B’s ISP is America Online (AOL). EarthLink’s computers received A’s instructions, copied the text message, and then sent out another copy in the direction of the AOL server. That e-mail crossed the Internet until it arrived at the AOL mail server, which happens to be located in Virginia.36 The next morning, when B sat at his desk and clicked on the icon to read the message from A, B was instructing his computer to send a request to the AOL server to run off a copy of the message and send it to him at his desk. From the second officer’s external perspective, obtaining the e-mail seems quite different from how it looked to the first officer. The second officer sees that he can obtain a copy of the e-mail from any one of four sources: A, who sent the e-mail; the Earth Link server located in California, which kept a copy before sending another copy to AOL; the AOL server in Virginia, which retained a copy in B’s account; or B, who received a copy when he logged on and read the e-mail. To avoid tipping off A or B, the officer will probably want to go to the system administrator at EarthLink or AOL to get a copy of the message straight from their computers. What process does the Fourth Amendment require? The second officer will reason that A sent a copy of the e-mail communication to a third party (the EarthLink computer), disclosing the communication to the third party and instructing it to send the communication to yet another third party (AOL). The officer will ask, what process does the Fourth Amendment require to obtain information that has been disclosed to a third party and is in the third party’s possession? The officer will look in a Fourth Amendment treatise and locate to the black letter rule that the Fourth Amendment permits the government to 34. Cf. United States v. Maxwell, 45 M.J. 406, 418 (C.A.A.F. 1996) (“In a sense, e-mail is like a letter. It is sent and lies sealed in the computer until the recipient opens his or her computer and retrieves the transmission. The sender enjoys a reasonable expectation that the initial transmission will not be intercepted by the police.”). 35. This process works as follows: When a user sends mail, she normally composes the message on her own computer, then sends it off to her ISP’s mail server. At this point her computer is finished with the job, but the mail server still has to deliver the message. It does this by finding the recipient’s mail server, talking to that server and delivering the message. It then sits on that second mail server until the recipient comes along to read his mail, when he retrieves it onto his own computer. Ken Lucke, Reading E-mail Headers, at http://www.stopspam.org/email/headers/headers.html (1997). 36. See Maxwell, 45 M.J. at 416 (noting that AOL e-mails “are privately stored for retrieval on AOL’s centralized and privately-owned computer bank located in Vienna, Virginia.”).
  • 2003] THE PROBLEM OF PERSPECTIVE IN INTERNET LAW 367 obtain information disclosed to a third party using a mere subpoena.37 The officer can simply subpoena the system administrator to compel him to produce the e-mails. No search warrant is required. Who is right? The first officer or the second? The answer depends on whether you approach the Internet from an internal or external perspective. From an internal perspective, the officers need a search warrant; from the external perspective, they do not.38 2. Do Search Warrants Allow Remote Network Searches? Let’s consider a second example, one that reverses the implications of the internal and external approaches. Imagine that our two police officers give up on e-mail conspiracies and instead start investigating a local business that is a front for the mob in New York. The officers learn that the mob has stored a full set of records of the mob’s illegal activities on the business’s computer network. The officers obtain a search warrant to search the New York office of the business for the computer files. Importantly, the Fourth Amendment requires the warrant to be fairly narrow; the warrant must specifically name the place that will be searched (“the business offices of the Mobfront Company, 123 Pine Street, Suite 200”) and name the evidence that will be seized (“computer files containing evidence of organized crime activity”).39 The warrant gives the officers a limited grant of authority: It allows them to search the precise location of the business for the precise evidence described, and no more.40 Imagine that when the officers execute the search, they find several computer terminals inside the business offices that are connected to the network, but they cannot find the central computer server that stores the network’s files. In fact, the network server is located hundreds or thousands of miles away, in another state, or perhaps even another country. The officers will face a question: Does 37. See Donovan v. Lone Steer, Inc., 464 U.S. 408, 414–15 (1984); United States v. Dionisio, 410 U.S. 1, 8 (1973); 2 WAYNE R. LAFAVE, SEARCH AND SEIZURE § 4.13(a), at 726 (3d ed. 1996). 38. It is possible to reconcile these two approaches, at least in part. Although the case law on this issue is sparse, the Fourth Amendment rules governing subpoenas apply even when information is protected by a “reasonable expectation of privacy.” See In re Subpoena Duces Tecum, 228 F.3d 341, 348–49 (4th Cir. 2000). As a result, even though a search warrant would be required to access certain documents if the government conducted the search directly, the government can alternatively use a subpoena to obtain the materials without a warrant. See id. This rule applies to postal mail, as well. See United States v. Barr, 605 F. Supp. 114, 119 (S.D.N.Y. 1985). However, this does not mean that the internal and external approaches yield the same result. If the sending of an e-mail to an ISP is a disclosure that eliminates a reasonable expectation of privacy (the external result), then the government could access the e-mail themselves or use a defective subpoena without violating the Fourth Amendment. 39. See U.S. CONST. amend. IV. (“[N]o Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”). 40. See Maryland v. Garrison, 480 U.S. 79, 84 (1987) (“By limiting the authorization to search to the specific areas and things for which there is probable cause to search, the requirement ensures that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit.”).
  • 368 THE GEORGETOWN LAW JOURNAL [Vol. 91:357 their search warrant allow them to search the terminals inside the business and retrieve the information stored remotely on the network? The first police officer, who prefers an internal perspective, will say “yes.” This officer will approach the terminal and see various icons indicating the presence of the network’s files. To him, the files listed are virtually present inside the terminal; he can access them from the network exactly as he would be able to access files stored on a local hard drive or floppy diskette. The first officer will look at the warrant, see that it authorizes him to search “123 Pine Street, Suite 200” for “computer files containing evidence of organized crime activity,” and will conclude that the warrant authorizes him to search the terminal for the evidence. The second police officer, who approaches the same problem from an external perspective, will disagree. He will reason that if he sits down at the terminal and starts looking through the files on the network, he will actually be instructing the terminal to send commands to the remote central server to run off copies of the files and send them back to him. Retrieving the files will not search “123 Pine Street, Suite 200,” as his warrant allows, but rather will direct a search of the physical location of the server located hundreds or even thousands of miles away. If the server is located in California, he will be searching a place in California; if the server is in Canada, he will be searching a place in Canada.41 The search warrant does not allow the officer to execute a search outside of “123 Pine Street, Suite 200,” however, much less in another state or a foreign country. Accordingly, the second officer will conclude that the search warrant does not allow him to search the terminal for the network’s remotely stored files. From an internal perspective, the search warrant authorizes the officers to search the terminal; from an external perspective, it does not. Notably, the privacy implications of the two perspectives in this second hypothetical reverse the implications of the first one. In the e-mail hypothetical, the internal perspective offers more privacy protection, whereas the opposite is true in the case of the remote network search. This should not surprise us. The internal and external perspectives offer two distinct and unrelated set of the Internet’s facts, and the legal implications of the two perspectives should vary depending on the issue. In some cases the internal perspective will offer facts that lead to greater privacy protection, but in other cases the external perspective will be more protective. B. INTERNET GOVERNANCE Internet governance has received a great deal of attention among scholarly commentators.42 We can define Internet governance as the study of how law, 41. See Patricia L. Bellia, Chasing Bits Across Borders, 2001 U. CHI. LEGAL F. 35, 42 (considering the Fourth Amendment implications of cross-border searches). 42. See, e.g., Henry H. Perritt, Jr., Towards a Hybrid Regulatory Scheme for the Internet, 2001 U. CHI. LEGAL F. 215; Lawrence Lessig, Open Code and Open Societies: Values of Internet Governance,
  • 2003] THE PROBLEM OF PERSPECTIVE IN INTERNET LAW 369 legal institutions, and computer code collectively regulate and define the virtual world of cyberspace.43 Here, as with the Fourth Amendment, approaches to Internet governance are influenced heavily by the competing views of the internal and external approaches. This section explains how the internalexternal critique explains competing views of Internet governance. It begins with Professor Lawrence Lessig’s insight that “code is law”; turns next to a 1996 federal court decision, Cyber Promotions v. America Online44; and concludes with a broader discussion of how the internal and external perspectives shed light on theories of Internet governance. 1. Code is Law—Or Is It? Professor Lawrence Lessig is today’s most influential cyberlaw theorist. Lessig has popularized the idea that “code is law.”45 According to this idea, the hardware and software code that make up the Internet regulates the virtual world of cyberspace much like law regulates the physical world.46 The nature and values of cyberspace hinge on the coding decisions of programmers, which means that the decisions made by big companies like America Online and Microsoft have the force of law in cyberspace. Lessig argues that because code is law, we should apply the legal constructs to code in cyberspace that we normally apply to law in the physical world. For lawyers, this approach is striking primarily because it assigns the U.S. Constitution an essential role in regulating the Internet’s computer hardware and software.47 If companies like AOL and Microsoft construct “the functional equivalent of law”48 in cyberspace, Lessig argues, their decisions should be just as subject to constitutional scrutiny as would law in the physical world. To do otherwise would make cyberspace a remarkable anomaly, a space totally unregulated by the Constitution.49 Lessig urges us to rethink the state action doctrine to 74 CHI.-KENT. L. REV. 1405 (1999). The notion of “Internet governance” as a distinct field within Internet law was recently acknowledged by the Duke Law Journal, which held its thirtieth annual administrative law issue on “Governance of the Internet.” See James Boyle, A Nondelegation Doctrine for the Digital Age?, 50 DUKE L.J. 5 (2000) (introducing the issue). 43. See generally Boyle, supra note 42. 44. 948 F. Supp. 436 (E.D. Pa. 1996). 45. See LESSIG, supra note 20, at 6. Lessig credits this idea largely to William Mitchell as well as to others. See id. at 6 n.7 (citing WILLIAM J. MITCHELL, CITY OF BITS: SPACE, PLACE, AND THE INFOBAHN 111 (1995)). 46. See id. at 6. 47. See id. (“In speaking of a constitution in cyberspace, we are simply asking: What values are protected there? What values will we build [by code] into the space to encourage certain forms of life?”). 48. Id. at 217. 49. See id. As Lessig puts it: “If code functions as law, then we are creating the most significant new jurisdiction since the Louisiana Purchase, yet were are doing it just outside the Constitution’s review.” See id.
  • 370 THE GEORGETOWN LAW JOURNAL [Vol. 91:357 accomplish these goals.50 According to Lessig, we should recognize that the codemakers such as Microsoft and AOL act as virtual governments that exercise real control over the virtual world of cyberspace and consider subjecting their decisions to constitutional scrutiny.51 Viewing Lessig’s theories through the lens of the internal-external critique proves quite revealing, I think. The phrase “code is law” expresses a relationship between the internal and external perspectives. “Code is law” means that code from the external perspective has the force of law from the internal perspective. The programmer’s code defines the architecture of the virtual world that a user encounters. Because external code is internal law, we should regulate external code from an internal perspective. This internal focus also seems to provide the key to understanding Lessig’s theory of applying the Constitution in cyberspace. Lessig is more eager than most to apply the Constitution to the Internet from an internal perspective.52 He urges us to apply the Constitution to the world the Internet user perceives, rather than to the bricks-and-mortar world that exists off-line. State action offers a clear example. To answer who is a state actor, Lessig suggests, we should look at the world from an Internet user’s perspective and determine who has powers that resemble those of the government.53 We can translate the values of the Constitution into cyberspace only by recognizing the Internet user’s world as the functional equivalent of the physical world and trying to match the rules of realspace to the rules of cyberspace. Lessig has developed a complex explanation for why we should endorse this internal perspective. According to Lessig, fidelity to the Constitution requires us to “translate”54 our “constitutional values”55 from real space to cyberspace to address “latent ambiguities”56 in our constitutional structure. I am not a constitutional theorist, and I will leave it to others to critique this approach.57 However, 50. Lessig suggests the need for “a revolution in American constitutional law for the Court . . . to move beyond the limits of state action” to be “more faithful” to our constitutional traditions. Id. at 217–18. 51. See id. at 217. 52. Given the richness and complexity of Professor Lessig’s works, viewing his scholarship through this single lens necessarily ignores a great deal of subtlety. As a first-order approximation, however, I think it captures some of the unique flavor of Professor Lessig’s ideas. 53. LESSIG, supra note 20, at 217–18. Thus Professor Lessig refers frequently to the importance of “constitutional values.” See, e.g., Lawrence Lessig, What Things Regulate Speech: CDA 2.0 v. Filtering, 38 JURIMETRICS J. 629, 664 (1998). Lessig does not define what “constitutional values” are, but in his work they appear to be values that from an internal perspective would be something that the Constitution may address if they occurred in the physical world. 54. LESSIG, supra note 20, at 114 (referring to the strategy of “finding a current reading of the original Constitution that preserves its original meaning in the present context.”). 55. Lessig, supra note 53, at 664. 56. LESSIG, supra note 20, at 217 (defining “latent ambiguity” as a question that the Framers did not answer because it was not raised in their day). 57. Admittedly, I have expressed some skepticism of it before. See Orin S. Kerr, The Fourth Amendment in Cyberspace: Can Encryption Create a “Reasonable Expectation of Privacy”?, 33 CONN. L. REV 503, 525 n.108 (2001).
  • 2003] THE PROBLEM OF PERSPECTIVE IN INTERNET LAW 371 for our purposes the key is to note that Lessig’s theory compares to more traditional approaches primarily in its willingness to adopt a more internal approach to constitutional law, in which the user’s perspective matters.58 2. Cyber Promotions v. America Online The importance of internal and external approaches to the area of Internet governance is not merely a question of theory. The internal and external perspectives have clashed in one case that squarely addressed the application of the state action doctrine to the Internet: Cyber Promotions v. America Online.59 The Cyber Promotions case arose from a dispute over “spam,” unsolicited commercial e-mail. Cyber Promotions was a spamming company that violated AOL’s antispam policy; in response, AOL banned Cyber Promotions from its network. Cyber Promotions filed suit in federal court, alleging that AOL’s ban violated Cyber Promotions’s First Amendment rights to speak to AOL’s subscribers. To succeed on this claim, Cyber Promotions first had to establish that AOL was a state actor governed by the First Amendment, rather than merely a private entity. Cyber Promotions tried to do this by offering an internal perspective. To an Internet user, its lawyers argued, decisions by America Online “ha[ve] the character of state action.”60 To users, AOL acts like the government. It provides a virtual town square where “public discourse, conversations and commercial transactions can and do take place,”61 just like in a real town square. Because AOL took on this governmental role from the perspective of a user, AOL should be considered a state actor.62 The district court rejected this argument by applying an external perspective. First, the court framed its analysis by describing the Internet as “a global Web of linked networks and computers . . . owned and managed by private entities and persons.”63 Note the external description, focusing on the physical hardware of the computers attached to the Internet rather than the virtual world it can help create. Within this external construct, AOL was simply a Virginia company that provided Internet access to its customers and was not owned in 58. Professor Tribe has suggested an internal approach to the Constitution (and in particular the Fourth Amendment) in his essay on the Constitution in Cyberspace. See LAWRENCE H. TRIBE, THE CONSTITUTION IN CYBERSPACE, at http://www.eff.org/Legal/cyber_constitution.paper (1991). “Axiom 5” of Tribe’s essay urges the courts to approach the Constitution in cyberspace in a technology-neutral way. As he puts it, “Constitutional Principles Should Not *Vary With Accidents of Technology*.” Id. According to Tribe, courts should treat the Internet’s new means of communicating just like their physical equivalents. This appears to reflect an internal approach, or at least a Constitution that follows an internal standard: Tribe suggests that courts focus on the role that new technologies play in the experience of their users, whereas physical reality should be seen as mere “accidents of technology.” Id. 59. 948 F. Supp. 436 (E.D. Pa. 1996). 60. Id. at 441. 61. Id. at 442. 62. Id. 63. Id. at 441.
  • 372 THE GEORGETOWN LAW JOURNAL [Vol. 91:357 whole or in part by the government.64 The court instructed that “AOL is merely one of many private online companies which allow its members access to the Internet through its e-mail system where they can exchange information with the general public. The State has absolutely no interest in, and does not regulate, this exchange of information . . . around the world.” 65 Accordingly, AOL was not a state actor, and its decision to ban a spammer could not violate the First Amendment. That an Internet user may think of AOL as the functional equivalent of government in cyberspace was irrelevant because the company itself was plainly a private entity and not a state actor. What mattered was the external question of corporate identity, not the internal question of users’ perceptions. 3. Internet Governance from an External Perspective That questions of Internet governance divide sharply along internal and external lines should not surprise us. The very concept of “Internet governance” is an internal construct. It seeks to analogize the creation of rules in the physical world (traditional questions of governance) to the creation of rules in cyberspace (Internet governance). Whether this enterprise makes any sense depends upon whether one approaches the Internet internally or externally. From an external perspective, the analogy appears nonsensical. AOL governs cyberspace from the perspective of its subscribers only in the way that the referee of a high school football game governs the game from the perspective of its players, or Steven Spielberg governs his movies from the perspective of their viewers. AOL calls the shots, but that does not make it the government. The power to control a user’s experience is an important power, but its importance does not transform it into a governmental power. To an external viewer, viewing AOL as a state actor in cyberspace makes as much sense as calling the referee a state actor in “footballspace,” or Steven Spielberg a state actor in “moviespace.” The problem derives from the maxim “code is law.” Saying that the power of code is akin to the power of law is simply too loose a use of the word “law” to be helpful. If code is law to an Internet user, then a sports referee’s calls are law to an athlete, and Steven Spielberg’s decisions about how to shoot a movie are law to a movie viewer. The internal approach simply misses the critical difference between reality and virtual reality.66 Conversely, from an internal perspective the external approach fails to trans64. See id. 65. Id. at 442. 66. Perhaps the most remarkable example of this within Lessig’s work is his extensive discussion of a “rape in cyberspace.” See LESSIG, supra note 20, at 74–78. Lessig recounts how a person who controlled a character named “Bungle” in an online game called “LamdaMOO” was able to manipulate the game such that the character “raped” several other characters in the game. See id. at 74–75. Although Lessig recognizes that no real woman was raped, he insists that “all will see a link between rape and what happened to these women here. Bungle used his power over these women for his own (and against their) sexual desire; he sexualized his violence and denied them even the dignity of registering their protest.” Id. at 75. While it is possible to envision a “link,” the link must be highly
  • 2003] THE PROBLEM OF PERSPECTIVE IN INTERNET LAW 373 late the values of the real world into cyberspace.67 The internal viewer will tend to see the external observer as rigid, myopic, and lacking in imagination because the external perspective does not recognize the importance of the internal world.68 C. COMPUTER CRIME Internal and external approaches have also influenced the law of computer crime.69 Although some computer crimes present new forms of criminality, many are simply traditional, preexisting crimes committed using the Internet. To use the cliche, they are “old wine in new bottles.”70 Examples include online ´ frauds,71 cyberstalking,72 Internet gambling,73 and offenses involving the online distribution of child pornography.74 Prosecutions of these crimes require the courts to apply preexisting criminal laws to the Internet, resulting in a series of clashes between the internal and external perspectives. This section contrasts two recent federal court of appeals decisions in which defendants tried and failed to overturn their convictions by invoking differing perspectives. In the first case, the defendant offered an internal view, but the court adopted an external view; in the second, the defendant offered an external view, but the court endorsed an internal view. The section concludes by analyzing a rare case in which the internal and external perspectives produced similar (although not identical) results: the Supreme Court’s First Amendment decision striking down the Communications Decency Act in Reno v. American Civil Liberties Union.75 1. United States v. Kammersell The Tenth Circuit’s decision in United States v. Kammersell76 provides a dramatic example of the importance of choosing between an internal and external perspective of the Internet. In this case, nineteen-year-old Matthew tenuous at best: It is the link between a brutal rape and a fictional story of a brutal rape. Surely the difference is more striking than any similarity. 67. See id. at 217–18. See also Paul Schiff Berman, Cyberspace and the State Action Debate: The Cultural Value of Applying Constitutional Norms to “Private” Regulation, 71 U. COLO. L. REV. 1263, 1270 (2000) (“[W]hether America Online is public or private, there are certain values that we hold as a community, values that America Online may be threatening.”). 68. See LESSIG, supra note 20, at 217–18. 69. See generally Scott Charney & Kent Alexander, Computer Crime, 45 EMORY L. J. 931 (1996). 70. See United States v. LaMacchia, 871 F. Supp. 535, 536 (D. Mass. 1994); see Michael Edmund O’Neill, Old Crimes in New Bottles: Sanctioning Cybercrime, 9 GEO. MASON L. REV. 237, 237 (2001). 71. See, e.g., Gretchen Morgenson, S.E.C. Says Teenager Had After-School Hobby: Online Stock Fraud, N.Y. TIMES, Sept. 21, 2000, at A1. 72. See U.S. DEP’T OF JUSTICE, CYBERSTALKING: A NEW CHALLENGE FOR LAW ENFORCEMENT AND INDUSTRY (1999), http://www.usdoj.gov/criminal/cybercrime/cyberstalking.htm. 73. See, e.g., United States v. Cohen, 260 F.3d 68, 70–71 (2d Cir. 2001). 74. See generally PHILIP JENKINS, BEYOND TOLERANCE: CHILD PORNOGRAPHY ON THE INTERNET (2001). 75. 521 U.S. 844 (1997). 76. 196 F.3d 1137 (10th Cir. 1999).
  • 374 THE GEORGETOWN LAW JOURNAL [Vol. 91:357 Kammersell used America Online’s “instant message” service to send a bomb threat over the Internet from Riverdale, Utah (a suburb of Ogden, Utah) to his girlfriend’s computer at work in downtown Ogden, a few miles away.77 The government prosecuted Kammersell under 18 U.S.C. § 875(c), which makes it a federal felony to send an interstate communication “containing . . . any threat to injure the person of another.”78 The question facing the Court was whether Kammersell’s instant message constituted an “interstate” threat. Kammersell argued that it did not. He offered an internal account of his conduct. From his perspective, he was located in Utah and had sent the threat to his girlfriend in Utah. His girlfriend was just a few miles away, in the same state. From Kammersell’s perspective, there was nothing interstate about his threat, and the absence of a federal interstate nexus required the court to vacate his conviction.79 The government countered by approaching Kammersell’s threat from an external perspective. Because America Online’s servers are located in Virginia, the government noted, every AOL instant message must be routed from its point of origin to AOL’s servers in Virginia, and then on to its destination. Unbeknownst to Kammersell, his instant message had traveled from Utah to Virginia, and then back to Utah. Kammersell’s threat was in fact an “interstate” threat, as it had traveled most of the way across the country twice in the course of being delivered.80 Did Matthew Kammersell send an interstate threat? From an internal perspective, no; from an external perspective, yes. The Tenth Circuit adopted the government’s external perspective and affirmed the conviction.81 2. United States v. Thomas A 1996 obscenity case decided by the Sixth Circuit, United States v. Thomas,82 provides a mirror image of Kammersell. As in Kammersell, the defendant’s 77. See id. at 1138. Instant messages are private communications between two Internet accounts in use that are delivered immediately to the other. See America Online v. AT&T Corp., 64 F. Supp. 2d 549, 566 (E.D. Va. 1999), aff’d in part, vacated in part, 243 F.3d 812 (4th Cir. 2001). 78. 18 U.S.C. § 875(c) (2000) states in full: “Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.” The statute has been applied fairly often to cases involving Internet threats. See, e.g., United States v. Morales, 272 F.3d 284, 285 (5th Cir. 2001); United States v. Alkhabaz, 104 F.3d 1492, 1493 (6th Cir. 1997). 79. See Kammersell, 196 F.3d at 1139. Notably, this is not an entirely internal account; it considers the location of Kammersell and his girlfriend in the physical world. However, the account is internal from the standpoint of whether his communication traveled across state lines. 80. See id. 81. See id. at 1140. 82. 74 F.3d 701 (6th Cir. 1996). The Thomas case received significant attention at the time primarily for its interesting First Amendment implications. See generally Jennifer K. Michael, Note, Where’s “The Nastiest Place on Earth?” From Roth to Cyberspace, or, Whose Community Is It, Anyway? The United States Court of Appeals for the Sixth Circuit Addresses Local Community Standards in United States v. Thomas, 30 CREIGHTON L. REV. 1405 (1997); Stephen G. Kabalka, Case Note, Application of
  • 2003] THE PROBLEM OF PERSPECTIVE IN INTERNET LAW 375 liability in Thomas hinged on whether the facts were approached internally or externally. Unlike Kammersell, however, the defendant in Thomas asked the court to apply an external perspective, and the government advocated an internal perspective. Robert and Carleen Thomas operated a computer bulletin board service from their home in California starting in 1991.83 The bulletin board billed itself as “The Nastiest Place on Earth” and provided its paying customers with hard-core pornography.84 Officials in Memphis, Tennessee began an investigation into whether the Thomases had violated federal obscenity laws. Eventually they set up an operation in which an undercover postal inspector in Memphis opened an account and used a computer to receive digital photographs formatted as GIF files from the Thomases’ server.85 The U.S. Attorney in Memphis charged the Thomases with almost a dozen violations of federal law, among them violations of 18 U.S.C. § 1465.86 This statute makes it a federal crime to use a means of interstate commerce to transport an obscene “book, pamphlet, picture, film . . . [or] image” in interstate commerce.87 The government’s theory was that the Thomases had used the Internet (a means of interstate commerce) to transport the GIF files (the images) in interstate commerce (from the server in California to the postal inspector in Tennessee). The jury convicted the Thomases on most of the counts, including six counts of violating 18 U.S.C. § 1465.88 On appeal, the Thomases argued that they had not violated the statute. They offered an external account of their conduct. They had not sent “images” to the undercover officer in Memphis, they reasoned, but merely had sent a “string of 0’s and 1’s”89 from one computer to another. The fact that the “string of 0’s and 1’s” was a GIF file that could be translated by the postal inspector’s computer into a visual image did not mean that the 0s and 1s were an “image” covered by Existing Obscenity Laws to Computer Transmissions United States v. Thomas, 74 F.3d 701 (6th Cir. 1996), 64 TENN. L. REV. 215 (1996). 83. Thomas, 74 F.3d at 704. 84. Id. at 705. 85. Id. GIF stands for “Graphic Interchange Format,” and is a popular file format for electronic files that can be read by a computer as a picture. See United States v. Lacy, 119 F.3d 742, 745 n.2 (9th Cir. 1997). 86. 18 U.S.C. § 1465 (2000). 87. The statute provides: Whoever knowingly transports or travels in, or uses a facility or means of, interstate or foreign commerce or an interactive computer service . . . in or affecting such commerce for the purpose of sale or distribution of any obscene, lewd, lascivious, or filthy book, pamphlet, picture, film, paper, letter, writing, print, silhouette, drawing, figure, image, cast, phonograph recording, electrical transcription or other article capable of producing sound or any other matter of indecent or immoral character, shall be fined under this title or imprisoned not more than five years, or both. Id. 88. Thomas, 74 F.3d at 706. 89. Id. at 706–07.
  • 376 THE GEORGETOWN LAW JOURNAL [Vol. 91:357 the federal obscenity law.90 The Sixth Circuit rejected this external argument in favor of an internal description of the Thomases’ conduct. According to the court, “the means by which the GIF files were transferred” did not matter so long as “the transmissions began with computer-generated images in California and ended with the same computer-generated images in Tennessee.”91 Because the data sent by the Thomases appeared as an image when “viewed on a computer screen”92 by a computer user, it was an “image” according to federal obscenity law. From the court’s internal perspective, technical details such as “[t]he manner in which the images moved”93 seemed irrelevant. The court affirmed the conviction.94 3. Internal and External Aligned: Reno v. American Civil Liberties Union In both Kammersell and Thomas, the courts’ outcomes depended on their perspectives. The internal and external approaches do not always produce opposing results, however. An interesting case in which the two perspectives led to similar outcomes was the Supreme Court’s 1997 decision in Reno v. American Civil Liberties Union.95 Reno raised a First Amendment challenge to the 1996 Communications Decency Act (CDA), a law that Congress enacted to protect minors from harmful material on the Internet.96 The challenge focused on two provisions: one provision that prohibited the knowing transmission “by means of a telecommunications device”97 of obscene or indecent messages to any recipient who is a minor98 and another that prohibited using an “interactive computer service”99 to knowingly send or display patently offensive messages in a manner that is available to a minor.100 90. 91. 92. 93. 94. 95. 96. 97. 98. Id. at 707. Id. Id. Id. Id. at 706. 521 U.S. 844 (1997). 47 U.S.C. § 223 (2000). 47 U.S.C. § 223(a). Id. The relevant text of this provision stated: Whoever . . . by means of a telecommunications device knowingly . . . makes, creates, or solicits, and initiates the transmission of, any comment, request, suggestion, proposal, image, or other communication which is obscene or indecent, knowing that the recipient of the communication is under 18 years of age, regardless of whether the maker of such communication placed the call or initiated the communication . . . shall be fined under title 18, United States Code, or imprisoned not more than two years, or both. Id. 99. 47 U.S.C. § 223(d). 100. Id. The relevant text of this provision stated: Whoever . . . knowingly uses an interactive computer service to send to a specific person or persons under 18 years of age, or uses any interactive computer service to display in a manner available to a person under 18 years of age, any comment, request, suggestion, proposal,
  • 2003] THE PROBLEM OF PERSPECTIVE IN INTERNET LAW 377 The majority opinion by Justice Stevens held that both provisions violated the First Amendment.101 The Court applied an external perspective. To the majority, the Internet was a worldwide network of computers that allowed its users to access resources via host computers.102 Although the Court recognized that an internal perspective exists—at one point the opinion notes that “from the readers’ viewpoint,” the World Wide Web resembles “a vast library . . . and a sprawling mall”103—the majority viewed the CDA as a speech restriction on the use of a specific network technology akin to a restriction on television or radio.104 From this external perspective, the CDA could not survive constitutional scrutiny because less restrictive technological means existed by which Congress could have achieved the CDA’s legitimate goals without burdening speech.105 Justice O’Connor, joined by Chief Justice Rehnquist, authored a partial concurrence and partial dissent.106 Justice O’Connor approached the CDA from an internal perspective. According to Justice O’Connor, the CDA was “little more than an attempt by Congress to create ‘adult zones’ on the Internet.”107 Citing Professor Lessig, Justice O’Connor argued that the CDA was an attempt to regulate cyberspace much like a zoning law attempts to regulate the physical world.108 Its constitutionality depended on whether the CDA’s attempt to zone chat rooms and others areas of cyberspace satisfied the First Amendment standard that the Court had developed to test efforts to zone the physical world.109 Applying this standard to an internal picture of the Internet, Justice O’Connor agreed with the external majority view that parts of the CDA did violate the First Amendment, but would have held that other parts survived First Amendment scrutiny.110 Because the CDA raised similar problems from an image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs, regardless of whether the user of such service placed the call or initiated the communication; or knowingly permits any telecommunications facility under such person’s control to be used for an activity prohibited by paragraph with the intent that it be used for such activity, shall be fined under title 18, United States Code, or imprisoned not more than two years, or both. Id. 101. See Reno v. Am. Civil Liberties Union, 521 U.S. 844, 864–85 (1997). 102. See id. at 849–51. 103. Id. at 853. 104. See id. at 868–70. 105. See id. at 879. 106. See id. at 886 (O’Connor, J., concurring in the judgment in part and dissenting in part). 107. Id. (O’Connor, J., concurring in the judgment in part and dissenting in part). 108. See id. at 889 (O’Connor, J., concurring in the judgment in part and dissenting in part) (citing Lawrence Lessig, Reading the Constitution in Cyberspace, 45 EMORY L.J. 869, 886 (1996)). 109. See id. at 886 (O’Connor, J., concurring in the judgment in part and dissenting in part) (contending that “portions of the CDA are unconstitutional because they stray from the blueprint our prior cases have developed for constructing a ‘zoning law’ that passes constitutional muster.”). 110. See id. at 897 (O’Connor, J., concurring in the judgment in part and dissenting in part). Justice O’Connor concluded that
  • 378 THE GEORGETOWN LAW JOURNAL [Vol. 91:357 internal perspective that it raised from the majority’s external perspective, Justice O’Connor reached a similar (although not identical) result as the external majority. D. COPYRIGHT LAW AND THE INTERNET Copyright law provides a final example of how internal and external perspectives shape Internet law. Copyright law grants authors rights to control the reproduction of their original works that are fixed in a tangible medium of expression.111 How copyright laws should apply to the Internet has proven highly controversial.112 Here, too, competing internal and external viewpoints influence the shape of the law. We can see how perspectives affect copyright law on the Internet by studying the recent lawsuit against the Internet service MP3.com. In January 2000, MP3.com began offering Internet users a service that allowed them to access their compact disc (CD) collections from anywhere in the world via the Internet.113 To enjoy the service, users needed to register and establish that they owned a particular collection of CDs. A user could do this in two ways: first “by inserting his copy of the commercial CD into his computer CD-Rom drive for a few seconds (the ‘Beam-it Service’),”114 or second by “purchas[ing] the CD from one of defendant’s cooperating online retailers (the ‘Instant Listening Service’).”115 Registered users could then log on to mymp3.com and request specific songs, which MP3.com would provide in the form of compressed the constitutionality of the CDA as a zoning law hinges on the extent to which it substantially interferes with the First Amendment rights of adults. Because the rights of adults are infringed only by the ‘display’ provision and by the ‘indecency transmission’ and ‘specific person’ provisions as applied to communications involving more than one adult, I would invalidate the CDA only to that extent. Insofar as the ‘indecency transmission’ and ‘specific person’ provisions prohibit the use of indecent speech in communications between an adult and one or more minors, however, they can and should be sustained. Id. at 896 (O’Connor, J., concurring in the judgment in part and dissenting in part). 111. See 17 U.S.C. § 102(a) (2000) (“Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”). For a comprehensive treatment, see MELVILLE B. NIMMER AND DAVID NIMMER, NIMMER ON COPYRIGHT (1999). For an engaging treatment of the history of copyright law, see BENJAMIN KAPLAN, AN UNHURRIED VIEW OF COPYRIGHT (1967). 112. See generally LAWRENCE LESSIG, THE FUTURE OF IDEAS (2001); Jessica Litman, Revising Copyright Law for the Information Age, 75 OR. L. REV. 19 (1996); Chip Patterson, Note, Copyright Misuse and Modified Copyleft: New Solutions to the Challenges of Internet Standardization, 98 MICH. L. REV. 1351 (2000); Alfred C. Yen, A Personal Injury Law Perspective on Copyright in an Internet Age, 52 HASTINGS L.J. 929 (2001). 113. See UMG Recordings, Inc. v. MP3.com, Inc., 92 F. Supp. 2d 349, 350 (S.D.N.Y. 2000) (Rakoff, J.). 114. Id. 115. Id.
  • 2003] THE PROBLEM OF PERSPECTIVE IN INTERNET LAW 379 mp3-formatted files.116 The owners of MP3.com provided this service by buying tens of thousands of copyrighted compact discs, and then copying them onto MP3.com’s servers. Whenever a registered user would request a particular song, MP3.com’s servers would run off a copy of the song from their servers and distribute it directly to the user over the Internet.117 The five major record companies did not appreciate this arrangement and sued MP3.com for copyright infringement.118 Did the service violate copyright law? The record companies relied on an external perspective to argue that the answer was “yes.” To the record companies, MP3.com first made unauthorized copies by copying the record companies’ copyrighted discs on to MP3.com’s servers and then made and distributed additional unauthorized copies whenever a user requested a track or entire disc. From this external perspective, MP3.com had twice copied materials without authorization from the copyright holders. Accordingly, MP3.com plainly infringed upon the record companies’ copyrights. MP3.com responded to this charge with an internal perspective of the same transaction. From the perspective of an Internet user, its lawyers argued, MP3.com simply allowed legitimate owners of music to access their CD collection without physically having to carry their CDs.119 MP3.com provided a virtual storage locker that permitted users to do in cyberspace what the physical CDs permitted them to do in realspace: listen to music they had legitimately purchased. Accordingly, MP3.com argued that there was no actual infringement of the record companies’ copyrights, and that if there was infringement, it was merely a de minimis “space shift” from realspace to cyberspace permitted under the fair use doctrine.120 Did MP3.com’s service violate the copyright laws? Once again, the choice of perspective helps determine the answer. From an external perspective, probably yes; from an internal perspective, probably no. The district court adopted the external perspective and ruled in favor the record companies.121 116. MPEG-1 Audio Layer 3 (commonly known as ‘MP3’) is the most popular digital audio compression algorithm in use on the Internet, and the compression it provides makes an audio file ‘smaller’ by a factor of twelve to one without significantly reducing sound quality. MP3’s popularity is due in large part to the fact that it is a standard, non-proprietary compression algorithm freely available for use by anyone, unlike various proprietary (and copyrightsecure) competitor algorithms. Recording Indus. Ass’n of America v. Diamond Multimedia Sys. Inc., 180 F.3d 1072, 1074 (9th Cir. 1999). 117. See UMG Recordings, 92 F. Supp. 2d. at 350. 118. See id.; David Akin, Legions of Record Company Lawyers Gird for Battle with the Internet Lawyers, NAT’L POST, Jan. 26, 2000, at C9. 119. See UMG Recordings, 92 F. Supp. 2d. at 350 (“[The] defendant seeks to portray its service as the ‘functional equivalent’ of storing its subscribers’ CDs”). 120. See id. at 351; 17 U.S.C. § 117 (2000). 121. See UMG Recordings, 92 F. Supp. 2d at 350 (“[A]lthough defendant seeks to portray its service as the ‘functional equivalent’ of storing its subscribers’ CDs, in actuality defendant is re-playing for the
  • 380 THE GEORGETOWN LAW JOURNAL [Vol. 91:357 III. THE SIGNIFICANCE OF THE PROBLEM OF PERSPECTIVE Many scholars believe that the field of Internet law offers nothing new.122 They reason that applying law to the Internet is like applying law to any new set of facts: draw analogies and then apply existing law.123 To these skeptics, the law of the Internet is merely “old wine in new bottles.”124 Although it has a fancy New Economy name—“cyberlaw”125—there is nothing really new about the law of the Internet.126 Cyberlaw’s proponents have offered only a partial response to these claims. Most prominently, Professor Lessig has defended the study of cyberlaw on the ground that it can shed light on law beyond cyberspace.127 Studying cyberlaw reveals how law interacts with other regulators of human conduct, such as architecture and social norms.128 This may be true, but it largely fails to address the skeptics’ criticism. If anything, Professor Lessig’s defense may fuel the critics’ concerns: By defending cyberlaw based on its similarities to the rest of law, rather than its differences, the argument implicitly concedes that nothing new happens when we apply law to the Internet.129 subscribers converted versions of the recordings it copied, without authorization, from plaintiffs’ copyrighted CDs.”) From the court’s external perspective, MP3.com’s internal approach seemed “little more than a sham.” UMG Recordings, Inc., v. MP3.com, 56 U.S.P.Q.2d 1376, 1377 (S.D.N.Y. 2000). The court added: Some of the evidence in this case strongly suggests that some companies operating in the area of the Internet may have a misconception that, because their technology is somewhat novel, they are somehow immune from the ordinary applications of laws of the United States, including copyright law. They need to understand that the law’s domain knows no such limits. Id. at 1379. 122. See, e.g., Frank H. Easterbrook, Cyberspace and the Law of the Horse, 1996 U. CHI. LEGAL F. 207, 208 (criticizing the field of Internet law as merely being the “law of the horse,” a collection of unrelated legal issues that happen to involve a technology); Christopher M. Kelly, The Cyberspace Separatism Fallacy, 34 TEX. INT’L L. J. 413 passim (1999) (same); Joseph H. Sommer, Against Cyberlaw, 15 BERKELEY TECH. L. J. 1145, 1147 (2000) (arguing that “‘cyberlaw’ and ‘the law of the Internet’ are not useful concepts,” and that cyberlaw is “nonexistent.”). 123. See Sommer, supra note 122, at 1148 (arguing that applying law to the Internet raises the same issues as applying law to other sets of facts). 124. See United States v. LaMacchia, 871 F. Supp. 535, 536 (D. Mass. 1994). 125. Lessig, supra note 4, at 501. 126. See id. (reviewing the debate over intellectual property law in cyberspace and concluding that “there is nothing new here. Cyberspace is another battleground for an old war.”). 127. See Lawrence Lessig, supra note 4, at 502 (arguing that cyberlaw can teach “the limits on law as a regulator and about the techniques for escaping those limits”). Other cyberlaw defenders have suggested that cyberlaw’s identity derives from the way that its new facts may require amending preexisting doctrines. See, e.g., I. Trotter Hardy, The Proper Legal Regime for “Cyberspace”, 55 U. PITT. L. REV. 993, 1053–54 (1994) (contending that the Internet raises several new questions for the legal system); Paul Schwartz, Privacy and Democracy in Cyberspace, 52 VAND. L. REV. 1609, 1612 (1999) (arguing that the Internet’s facilitation of widespread information-sharing should prompt a federal law on fair information practices). 128. See Lessig, supra note 4, at 503–10. 129. As cyberlaw critic Joseph Sommer has recognized: Much of the best work [on cyberlaw] is not really ‘about’ cyberlaw at all. Instead, it applies existing legal doctrine or political theory to a new arena . . . . In applying our old law to
  • 2003] THE PROBLEM OF PERSPECTIVE IN INTERNET LAW 381 The problem of perspective suggests that the defenders of cyberlaw are right, although perhaps not for the reasons they have offered. Internet law does offer something new—not so much in how we approach the law, but rather in the way that we approach the facts. Modeling the Internet’s facts turns out to be less simple than the skeptics suggest, as it requires a choice between external and internal constructions of those facts, between physical reality and virtual reality. Even accepting the skeptic’s view that Internet law is simply a matter of applying law to the facts, the Internet’s facts hinge on whether we approach the Internet internally or externally. This is not just a question of theory. Courts already choose perspectives when they apply law to the Internet. They just don’t realize it. What the courts may see as a minor skirmish in the “battle of analogies”130 is really a broader problem throughout Internet law. In areas ranging from criminal law to state action to copyright infringement, the clash between internal and external perspectives forces the courts to pick a perspective to reach a legal outcome. The question is not whether courts should choose a perspective, for already they do, and perhaps must. The real question, I think, is how courts should resolve the choice of perspective once they recognize it. I think we need a way of thinking about how to choose whether to apply an internal or external perspective in a given case. In some ways, this presents a new wrinkle to an old problem. Although lawyers often think of “the facts” as distinct from “the law,” our way of arriving at the facts can present important legal questions. The law of evidence provides a helpful example. The field of evidence law presents an elaborate set of legal rules designed to govern how decisionmakers arrive at the facts.131 Evidence law recognizes that law and facts can be intertwined; the legal system does not recognize a fact as a fact unless the law allows it to be recognized. The problem of perspective calls for a similar recognition. It requires us to stop and question how we arrive at the facts of the Internet before we apply law to it. Moreover, I think its resolution can harness principles that resemble those underlying evidence law. Evidence law erects a screen to regulate what evidence a fact-finder can use to help build an accurate and reliable picture of the facts.132 Similarly, we can develop a legal framework to resolve the problem of cyberspace, we see matters afresh. To risk a metaphor from another technology, the Internet can be an excellent lens for seeing other things. It is not, however, a particularly useful focal plane of legal analysis. Sommer, supra note 122, at 1149. 130. Mark S. Kende, The Supreme Court’s Approach to the First Amendment in Cyberspace: Free Speech as Technology’s Hand-Maiden, 14 CONST. COMMENT. 465, 465 (1997). 131. See ERIC D. GREEN & CHARLES R. NESSON, PROBLEMS, CASES AND MATERIALS ON EVIDENCE 25 (2d ed. 1994) (“The function of the law of evidence is to specify . . . what types of information may be considered by the triers of fact in our law courts so that they may ascertain facts of importance to the determination of the dispute before the court[.]”). 132. See id.
  • 382 THE GEORGETOWN LAW JOURNAL [Vol. 91:357 perspective in concrete cases to help produce an accurate and reliable translation of the facts from the physical world to the Internet. While this may sound like a call for a grand theory of everything, in many ways the task is a very narrow one. The problem of perspective asks only how we model the facts. As I suggested earlier,133 the problem of perspective coexists peacefully with broader struggles within cyberlaw that have occupied both cyberlaw proponents and skeptics. For example, we need not delve into whether or how the Internet should transform individual legal doctrines.134 Perhaps the Internet should trigger major changes in First Amendment law, or copyright law, or the state action doctrine. Perhaps it should not.135 The problem of perspective focuses on a much more humble and practical problem: modeling the facts so we can apply the law even as it currently exists to the facts of the Internet. Regardless of what the law is or should become, the problem of perspective remains. This Part will explore the importance of the problem of perspective by situating it within a broader set of theoretical premises in law, the social sciences, and in theories of the Internet. My goal is to show how the problem of perspective shares certain common themes with past technologies and scholarship, but also presents a significant new twist with important new practical implications. I will begin with technology, and show how the problem of perspective reflects the universalization of themes that surfaced in very limited form with prior technologies such as the telephone. I will next turn to the social sciences, and show how the internal-external critique complements and extends analogous theories of systems advanced by social scientists and legal scholars such as H.L.A. Hart. I will conclude by showing how the problem of perspective extends beyond past writings on the role of metaphor in Internet law. A. PRELUDES TO THE PROBLEM OF PERSPECTIVE: AN EXAMPLE FROM THE TELEPHONE NETWORK Because the problem of perspective derives from the existence of a virtual reality, we should expect to encounter the problem with technologies other than the Internet that also generate forms of virtual reality. This has two important implications, depending on whether we look forward or backward in time. Looking to the future, the problem of perspective should become more important as technology continues to advance and virtual realities become more widespread and convincing. Conversely, looking back, preludes to the problem of perspective should appear in technologies that predate the Internet. The telephone network provides the clearest example of a past technology that presaged the problem of perspective. Perhaps the earliest case of competing internal and external perspectives is the famous telephone wiretapping case of 133. See supra section I.C. 134. See, e.g., Hardy, supra note 127, at 995. 135. I consider myself enough of a cyberlaw skeptic to believe that it probably should not.
  • 2003] THE PROBLEM OF PERSPECTIVE IN INTERNET LAW 383 Olmstead v. United States,136 decided in 1928. In Olmstead, government agents wiretapped the telephone lines of a former police officer who operated a massive bootlegging operation in violation of the Prohibition laws.137 The agents tapped the phone lines from a city street without entering onto any private property. At trial and then on appeal, Olmstead argued that the wiretapping violated his Fourth Amendment rights. Writing for a 5-4 majority, Chief Justice Taft rejected Olmstead’s argument by applying what amounted to an external perspective of the telephone network. To Taft, the telephone network consisted of electrical lines that permitted its users to send communications out into the world.138 By using a telephone, Taft reasoned, Olmstead and his co-conspirators had opted to send their communications out from the protected spaces of their houses and into the unprotected space of the public city street: The reasonable view is that one who installs in his house a telephone instrument with connecting wires intends to project his voice to those quite outside, and that the wires beyond his house, and messages while passing over them, are not within the protection of the Fourth Amendment. Here those who intercepted the projected voices were not in the house of either party to the conversation.139 The relevant question from Taft’s external perspective was how the network worked, where the communications traveled, and where the agents were when they intercepted the communications. Because the telephone network worked by carrying the communications out into public spaces, using the phone was the functional equivalent of shouting out conversations where anyone could hear them.140 In contrast, Justice Brandeis’s dissent offered a primarily internal account of the same event. To Brandeis, it was “immaterial where the physical connection with the telephone wires leading into the defendants’ premises was made.”141 Rather, the proper question was whether from a telephone user’s perspective, the wiretapping appeared as the equivalent of a search and seizure. Brandeis 136. 277 U.S. 438 (1928). 137. Professor Murphy offers an excellent explanation of the Olmstead case and its context in his book. See generally WALTER MURPHY, WIRETAPPING ON TRIAL (1965). 138. See 277 U.S. at 465. Taft wrote: By the invention of the telephone 50 years ago, and its application for the purpose of extending communications, one can talk with another at a far distant place. The language of the [Fourth] amendment cannot be extended and expanded to include telephone wires, reaching to the whole world from the defendant’s house or office. The intervening wires are not part of his house or office, any more than are the highways along which they are stretched. Id. 139. Id. at 466. 140. See id. 141. Id. at 479 (Brandeis, J., dissenting).
  • 384 THE GEORGETOWN LAW JOURNAL [Vol. 91:357 thought that it did: “Whenever a telephone line is tapped, the privacy of the persons at both ends of the line is invaded, and all conversations between them upon any subject, and although proper, confidential, and privileged, may be overheard.”142 Although Justice Brandeis did not predict the internal perspective of cyberspace, he came close: Brandeis seemingly understood the telephone network as a technological means of creating a private space for its users: a virtual “closet”143 where secrets could be “whispered.”144 The divide between Taft and Brandeis was not so much a difference between wooden and dynamic constitutional interpretation, as some commentators suggest,145 as it was a clash of perspectives. Taft applied an external perspective of the telephone network, and Brandeis used an internal perspective. It is tempting to view Olmstead as proof that the problem of perspective is really nothing new. This is only partly correct. Olmstead reveals an early antecedent of the problem of perspective. However, it is a fairly isolated case. The books are not filled with cases applying law to “phonespace” in the same way that we find cases applying law to cyberspace. This largely reflects the telephone network’s narrow function; because the telephone merely transmits sound from one place to another, its ability to generate a virtual reality is fairly limited. As a result, telephone cases raising an internal-external dynamic remain rare,146 and considered as a whole, they do not produce a recurring problem of perspective. In contrast, the clash between the virtual and physical does seem to appear throughout Internet law. The advanced technology of the Internet has universalized a problem that remained mostly latent in the early telephone network. This may or may not make the problem of perspective truly “new.” Either way, the problem recurs often enough in Internet law that it prompts us to confront it across a wide range of substantive areas. B. BEYOND INTERNAL AND EXTERNAL PERSPECTIVES IN LAW AND THE SOCIAL SCIENCES Social scientists often use the terms “internal” and “external” to compare different ways of analyzing systems such as religion and law.147 The internal 142. Id. at 475–76 (Brandeis, J., dissenting). 143. Id. at 473 (Brandeis, J., dissenting). 144. Id. (Brandeis, J., dissenting). 145. See, e.g., Shirley M. Hufstedler, Invisible Searches for Intangible Things: Regulation of Governmental Information Gathering, 127 U. PA. L. REV. 1483, 1495 (1979). 146. Beyond Olmstead, we can also see the internal-external dynamic in Smith v. Maryland, 442 U.S. 735 (1979), discussed infra at subsection IV.C.2. 147. See, e.g., Scott Brewer, Scientific Expert Testimony and Intellectual Due Process, 107 YALE L. J. 1535, 1568–72 (1998) (summarizing scholarship on internal and external points of view); Frank Cross, Political Science and the New Legal Realism: A Case of Unfortunate Interdisciplinary Ignorance, 92 NW. U. L. REV. 251, 280–85 (1997) (same); Douglas Litowitz, Essay, Internal Versus External Perspectives on Law: Toward Mediation, 26 FLA. ST. U. L. REV. 127, 131–35 (1998) (explaining the use of internal and external perspectives in the social sciences).
  • 2003] THE PROBLEM OF PERSPECTIVE IN INTERNET LAW 385 perspective offers the view of a participant in the system, who feels bound by its rules; the external perspective adopts the view of a third-party observer who does not consider himself bound.148 Consider religion. When we discuss religion, we can talk as believers of a common faith and try to understand our religious doctrines and our God.149 Alternatively, we can also approach religion as outsiders. We can talk about our next-door neighbors and their unfamiliar religious practices and try to understand their beliefs and practices as reflections of history or culture.150 The former approach reflects an internal perspective of religion; the latter, an external perspective.151 The same construct has been applied to the legal system, most famously by H.L.A. Hart in The Concept of Law.152 According to Hart, an internal perspective of the legal system accepts that we are bound by the rule of law, and indicates faith in the power and authority of legal reasoning and doctrine.153 In contrast, those who view law from an external perspective see the rules as merely window-dressing for other forces that generate “observable regularities of behavior”154 but have little additional significance. Hart uses the example of a stop sign at an intersection. From an internal perspective, a driver sees a stop sign as the government’s order to stop his vehicle before he reaches the intersection. The stop sign has the force of law. In contrast, an external observer looks at a stop sign and merely notes that most drivers stop their vehicles when they approach the sign. The external observer may recognize that drivers perceive that they are bound by the sign, but does not find such perceptions particularly relevant.155 The problem of perspective in Internet law resembles these internal-external critiques, but it also features important differences. Like these critiques, the problem of perspective compares the viewpoint of a participant in a system to the viewpoint of a third-party observer.156 The “system” here is the Internet itself. The participant’s internal perspective adopts the user’s understanding of the virtual reality of cyberspace, and the observer’s external perspective adopts a third party’s understanding of the physical network of the Internet. However, the problem of perspective differs from past approaches in impor- 148. See Litowitz, supra note 147, at 133. 149. See Stanley Ingber, Religion or Ideology: A Needed Clarification of the Religion Clauses, 41 STAN. L. REV. 233, 282 n.305 (1989) (“Those approaching religion from the internal viewpoint—the faithful—will perceive their religious responsibilities not as an issue of individual choice and reason but of obligation imposed by a sacred or divine force.”). 150. See id. (“The external perspective may view religion as: a human creation, . . . a set of myths surrounding a confused ideological claim, . . . or an opiate sedating an oppressed people.”). 151. See id; see also Litowitz, supra note 147, at 132. 152. See H.L.A. HART, THE CONCEPT OF LAW 89–91 (2nd ed. 1994). 153. See id. at 89. 154. Id. 155. See id. at 90. 156. See Kerr, supra note 14, at 1290 n.7.
  • 386 THE GEORGETOWN LAW JOURNAL [Vol. 91:357 tant ways. The two perspectives of the Internet reflect distinct representations of reality, rather than two ways to draw lessons from the same representation. I think this is different from H.L.A Hart’s critique. When Hart compares internal and external perspectives of law, he compares two lessons that can be drawn from a single picture. A stop sign can be understood either as an order from the sovereign or as an indicator that drivers will often stop their vehicles at a particular place. Either way, however, a stop sign is still a stop sign. The only question is what significance we choose to assign to it.157 In the case of the Internet, however, the two perspectives follow two different representations of reality. The external perspective follows physical reality, and the internal perspective follows virtual reality. So, for example, visiting a website can be either sending a request to a remote server that sends back text and pictures (physical reality), or traveling to a place (virtual reality). The internal viewer conceptualizes a different world than does an external viewer. Of course, a user may be aware of both perspectives simultaneously. Technicallysavvy users who understand the technology are especially adept at following the external view along with the internal.158 But, nonetheless, the technology of the Internet generates a choice between two representations of reality: internal versus external, virtual versus real.159 A user may be aware of both realities at the same time, but will choose to accept either the virtual world or the real one when trying to understand her experiences online. C. BEYOND METAPHORS IN INTERNET LAW A second intellectual cousin of the problem of perspective can be found in recent scholarly writings on the role of metaphor in Internet law. In an important article published in 1995, Professor Michael Froomkin noted that the nature of Internet law “depend[s] critically on the legal metaphors” that are used to describe the Internet and its functions.160 Froomkin’s article analyzed the constitutionality of encryption regulations that the Clinton Administration proposed (but never enacted) in the early- to mid-1990s.161 Froomkin predicted 157. See HART, supra note 152, at 89. 158. My own limited and unscientific survey suggests that technologically-savvy Internet users tend to be more willing to embrace an external perspective, and computer novices tend to be drawn more to the internal perspective. I think the best explanation for this trend is that novices first learn how to use computers and the Internet by developing an internal understanding of the Internet. In contrast, computer experts know how the Internet works; to them, the external perspective is simply reality, unchanged by whether a user happens to understand it. 159. The Matrix provides an extreme example. In the movie, discussed supra section I.A, the connection to the network was total, and those who connected themselves to the network lost all contact or sense of external reality. 160. A. Michael Froomkin, The Metaphor is the Key: Cryptography, the Clipper Chip, and the Constitution, 143 U. PA. L. REV. 709, 718 (1995). For a similar approach, see O’Rourke, supra note 25, at 561. 161. Encryption is a process of encoding communications by scrambling them, usually followed by a process of decoding and thus descrambling them so they can be read. See generally SIMON SINGH, THE CODE BOOK (1999).
  • 2003] THE PROBLEM OF PERSPECTIVE IN INTERNET LAW 387 that the degree of constitutional protection the courts afforded to the use of encryption would hinge upon the metaphor the courts chose to describe it. The courts could analogize encryption regulation to the regulation of automobiles,162 languages,163 safes,164 or houses,165 depending on the factual similarities and differences that the courts decided to emphasize. So, for example, if the courts analogized encryption to a language, they would protect it from regulation because the First Amendment protects languages as speech.166 If the courts analogized encryption to an envelope around a message, however, they would be more likely to uphold the regulation of encryption because the regulation of envelopes would not raise similar constitutional problems.167 The problem of perspective shares an intellectual thread with Professor Froomkin’s writings on the role of metaphor. Like Froomkin, I am concerned with how we conceptualize new technologies when we apply law to them. At the same time, I think the problem of perspective differs significantly from the questions considered by Froomkin. Froomkin takes the facts of the Internet as a given and shows that its new facts can be compared to those of past technologies in various ways. As Froomkin notes, this is an important point; the analogies we draw can have legal consequences. However, this insight is not Internet-specific. As cyberlaw skeptics have rightly noted, we can always draw analogies between new technologies and earlier ones.168 Recall Justice Cardozo’s famous opinion in McPherson v. Buick.169 McPherson considered an automobile company’s tort liability for selling a car with defective wheels manufactured by another company.170 As explained by Cardozo, the question boiled down to the hunt for the best analogy: Was an automobile like a stage coach, in which case the manufacturer would not be held liable? Or was it more like a railroad, in which case it would?171 Even Professor Froomkin’s specific inquiry into choosing metaphors for encrypted communications turns out to have predated the Internet by at least a century.172 Encryption has existed for hundreds of years and was used to encode telegraph communications in the nineteenth century and letters in the eighteenth 162. See Froomkin, supra note 160, at 863–65. 163. See id. at 865–70. 164. See id. at 871–74. 165. See id. at 874–79. 166. See id. at 884 (“If the courts treat a ciphertext as if it had been written in a foreign language, it will trigger a First Amendment analysis that will result in giving cryptography more protection.”). 167. See id. (“If encryption is considered no more than an outer envelope in a message transmission system . . . it is likely to receive the lowest level of protection.”). 168. See Sommer, supra note 122, at 1148. 169. 217 N.Y. 382 (N.Y. 1916). 170. Id. at 391. 171. Justice Cardozo preferred the latter analogy. The defective wheels, he wrote, were “as much a thing of danger as a defective engine for a railroad. . . . Precedents drawn from the days of travel by stage coach do not fit the conditions of travel to-day.” Id. at 391. 172. See Kerr, supra note 57, at 526 (noting the use of encryption as far back as the ancient Greeks).
  • 388 THE GEORGETOWN LAW JOURNAL [Vol. 91:357 century.173 Then, as now, courts needed to select different metaphors to describe encrypted communications. So while Froomkin predicts that courts may some day have to grapple with whether encrypted communications are like communications in a foreign language, he overlooks the fact that century-old cases struggle with this precise question.174 In contrast, computer networks and the Internet provide the first technology in which the problem of perspective predominates. Although the telephone presaged similar issues (as in Olmstead), the Internet is the first technology in everyday use that supports a virtual reality for its users sufficiently realistic to warrant its own spatial metaphor, cyberspace.175 For the first time, the virtual metaphor is competing with the physical world, creating choices between which view to adopt when applying the law to the Internet.176 173. See id. at 526–29 (describing popular uses of encryption in the eighteenth and nineteenth centuries). 174. One fascinating example is Western Union Telegraph Co. v. Olivarri, 110 S.W. 930 (Tex. Civ. App. 1908), aff’d 135 S.W. 1158 (Tex. 1911). In Olivarri, a woman in Texas sent a telegram in Spanish to her husband in Mexico informing him that her newborn children were ill and likely would die. See 110 S.W. at 931. Western Union failed to deliver the message, and the woman sued Western Union for her pain and suffering when her husband did not arrive to take care of her during her children’s deaths. See id. The established rule of law was that the telegraph company could be liable for failure to deliver a telegram correctly when the importance of its message was clear on its face. See id. at 932. Under this rule, telegraph companies were not liable for the consequences of misdelivered encrypted communications: By their nature, the importance of such communications was not clear to the telegraph company. See Einbinder v. Western Union Tele. Co., 30 S.E.2d 765, 773 (S.C. 1944). In its defense, Western Union argued that messages in a foreign language were like encrypted messages, or, as they termed it, “cipher messages.” See Olivarri, 110 S.W. at 932. The Texas Court of Civil Appeals rejected the metaphor: We do not think a message in a foreign tongue for delivery in a country where that tongue is written and spoken can be placed in the same category as a cipher message. That kind of message is sent for the purpose of concealing from the telegraph company, as well as all other parties, except the person to whom it is sent, the purport of the message. The telegraph company, not being in possession of the key to their meaning, cannot possibly understand such telegrams, and is under no obligation to make any inquiries in regard to them. In fact disclosure of their meaning would defeat their very object in sending them. The telegram, however, to a person in a foreign country in the language of that country, is not intended to conceal. Id. 175. See, e.g., Peter H. Lewis, In Search of a Meaningful Relationship with Computers, N.Y. TIMES, May 27, 1990, at E5. (“One intriguing area of metaphor exploration is in the field of cyberspace, where the user enters a ‘virtual reality’ that exists as pure computer data.”). 176. In a sense, Froomkin’s analysis echoes H.L.A. Hart’s: Both focus on ways of understanding what we see, rather than questioning how we model what we see. The problem of perspective instead grapples with what we see when we look at the Internet: its physical reality, or its virtual reality. The choice of perspective can influence whether a metaphor appears convincing, of course. For example, describing encryption as a safe that locks a communication offers an internal metaphor; a user sees the browser “lock” and “unlock” the file, even though the encryption does not actually lock anything in the external physical world. The choice of perspective asks an antecedent question to the search for the right metaphor: Should we search for metaphors from the perspective of an Internet user, or from the perspective of a third-party observer?
  • 2003] THE PROBLEM OF PERSPECTIVE IN INTERNET LAW 389 IV. A NORMATIVE FRAMEWORK FOR RESOLVING THE PROBLEM OF PERSPECTIVE Because perspective exerts a significant influence on Internet law, two obvious questions arise. Are both perspectives equally legitimate in every case? And if not, how do we choose whether to apply an internal or external perspective in a given case? This Part attempts to answer these questions. My goal is to convince the reader that while the problem of perspective does add a new layer of inquiry when we apply law to the Internet, it is not an irresolvable one. The problem of perspective does not plunge us into hopeless indeterminacy; it is a problem, but not one without answers. Once we agree on our goals when applying law to the Internet, we can set up a framework for resolving the problem of perspective that can help us determine the best answer in most cases. This Part will propose such a normative framework, based on the traditional judicial goal of fidelity to existing law. The normative framework offers two ways of selecting perspectives. The first approach tasks the decisionmaker with studying the applicable law for clues as to whether the doctrine reflects an internal or external approach and then applying the perspective the doctrine explicitly or implicitly adopts. The second approach provides a backup when the first approach does not yield an answer, and suggests that we should adopt the perspective of the party that the law seeks to regulate. Both approaches seek to resolve the problem of perspective by reference to the substance of function of existing law; they view the problem of perspective as a problem of fidelity and seek solutions that adhere closely to existing law. An important caveat is in order before I begin. The framework I present will not be the final word on the problem of perspective. First, some will object to my goal of fidelity to law; especially in academic circles, it will strike some as narrow and (gasp!) lawyerly. Even those who accept my goal may find my approaches not entirely satisfying. Indeed, while I think the first approach is entirely sound, I am not entirely sure of the second—or even that it is entirely distinct from the first. Perhaps a third, yet-undiscovered method may also work. In light of my own uncertainty, my limited aim will be to explain a few important features that could guide an analytical framework for choosing perspectives, rather than present a foolproof recipe for churning out the “right” perspective in a given case. I hope to offer a starting point and begin a dialogue, not resolve the problem of perspective once and for all. A. THE NATURE OF THE CHOICE AND THE PROBLEM OF INDETERMINACY It may be tempting to see the problem of perspective as the final nail in the determinacy coffin.177 If we can reach one outcome from the internal perspec177. See, e.g., Steven L. Winter, Indeterminacy and Incommensurability in Constitutional Law, 78 CAL. L. REV. 1441, 1445 (1990); see also Anthony D’Amato, Pragmatic Indeterminacy, 85 NW. U. L. REV. 148 passim (1990). For a critique, see Richard Epstein, Some Doubts on Constitutional Indeterminacy, 19 HARV. J. L. & PUB. POL’Y 363, 364 (1995).
  • 390 THE GEORGETOWN LAW JOURNAL [Vol. 91:357 tive and the opposite outcome from an external perspective, then isn’t the law hopelessly indeterminate? Won’t courts simply apply the perspective they want in order to reach the result they prefer in a given case?178 Is the search for the “right” perspective a pipe dream, as the two perspectives will prove equally plausible in every case? I think the answer to these questions is “no.” The fact that we can always present an internal and external version of the facts does not mean that those two versions are equally viable, any more than the fact that there are two sides to every argument means that we can never choose between them. Judgments can be made. The trick, I think, is that first we need to confront what our goals are when we apply law to the Internet. Once we agree on our goals, we can use them to develop a framework for choosing between perspectives. Consider a simple example. Let’s say our goal is to foster a substantive vision of what cyberspace should be.179 For example, we may want cyberspace to be “free” and “open,” so that Internet users perceive few limits on the range of experiences they can have online. If this is our goal, then solving the problem of perspective can become quite easy. Simply pick the perspective that in the context of that case will help foster the substantive vision, in this case a free cyberspace.180 If designating AOL a state actor will make cyberspace more free by limiting AOL’s right to censor speech, then we can take an internal perspective that will help produce that result. I do not mean to endorse this approach; to me, choosing a perspective based on a substantive vision of cyberspace seems perilously close to just doing whatever you like. But as an illustration, the point sticks. Once we select our goals, we can use those goals to frame a solution. Among legal theorists, this may not seem a major step forward. The difficulty is that what our goals should be when we apply law is (to state it mildly) contested ground. Different theorists offer different goals—to borrow again from H.L.A. Hart, different rules of recognition181—that they argue should govern. I do not pretend to have a way to resolve these differences. Nor do I have my own metatheory to throw on to the already-crowded pile. Rather, I hope to sidestep this jurisprudential thicket and instead focus on a more practical question, which I find more important and more interesting. In the real 178. See, e.g., Christopher F. Edley, Jr., The Governance Crisis, Legal Theory, and Political Ideology, 1991 DUKE. L.J. 561, 580 (1991) (quoting Charles Evans Hughes’s comment that “[w]e are under a Constitution, but the Constitution is what the judges say it is.”). 179. Professor Lessig’s writings at times suggest such an approach. See, e.g., LESSIG, supra note 20, at 223 (“In cases of simple translation—where there are no latent ambiguities and our traditions seem to speak clearly—judges should firmly advance arguments that seek to preserve original values of liberty in a new context. In these cases there is an important space for activism. Judges should identify our values and defend them.”). 180. See id. 181. See HART, supra note 152, at 100–10. In Hart’s jurisprudence, a rule of recognition is the foundational rule that justifies the remaining rules in applying the law, but that itself is based primarily on widely accepted and often unstated social practice. See id.
  • 2003] THE PROBLEM OF PERSPECTIVE IN INTERNET LAW 391 world of courts and litigants, where lawyers and judges routinely apply the law to new facts, how should they resolve the problem of perspective? Embracing the conventional goal of applying the law to new facts faithfully and accurately, how can we best try to resolve the problem of perspective? The remainder of this Part proposes a normative framework for resolving the problem of perspective based on fidelity to law.182 It starts with the importance of doctrine, rooted in fidelity to text, and then turns to the benefits of tracking the perspective of the individual the law seeks to regulate, rooted in fidelity to function. B. A FIRST APPROACH: RECOGNIZING THE POWER OF DOCTRINE The most important insight that helps resolve the problem of perspective is that if our goal is fidelity to law, that law will often signal the adoption of an internal or external approach. When mined for clues, traditional legal sources will often indicate whether the law is more closely attuned to external or internal concerns. As a result, doctrine itself can often help resolve the problem of perspective. Once we are aware of the problem of perspective, the existing law can lead us to either an internal or external approach depending on the particular case. In such cases, choosing a perspective is akin to the task of statutory interpretation: Just as we go no further when the text of a statute establishes its meaning,183 we should look no further when the doctrine establishes the proper perspective. When the applicable law derives from a statute, these two rules converge into one. To show how this might work in practice, I will examine three examples of how doctrine itself can resolve the problem of perspective. I will start with a fairly straightforward hypothetical, in which the statutory law reflects a choice of perspective, move next to a case in which statutory law implicitly adopts a perspective, and conclude with a more complex example, in which the view182. I recognize that my use of the word “fidelity” may bring to mind Professor Lessig’s theory of translation. See, e.g., LESSIG, supra note 20, at 111–21. Lessig’s theory of translation is a metatheory for applying constitutional protections to the Internet. Although Lessig does not offer many examples of how translation would actually work, it appears from Lessig’s writings that a judge attempting to translate constitutional protections should attempt to abstract constitutional text into the policy concern that represents the essence of the protection, and then create a new rule that enforces that policy effectively. See id. at 118. So for example, Lessig understands the Fourth Amendment as a protector of privacy, and suggests that a judge should apply the Fourth Amendment to the Internet by devising rules that protect privacy, along the lines of Justice Brandeis’s dissent in Olmstead. See id. Professor Lessig argues that this approach is the best way of maintaining fidelity to the Constitution because it remains loyal to the policy concerns that motivated the Framers. See id. at 115. The fidelity that I speak of in this section is a much more ordinary type of fidelity. My concern is not fidelity to a conception of policy concerns that motivated the Framers of the Constitution, but merely fidelity to existing rules of law—regardless of whether they are constitutional, statutory, common law, or regulatory in origin. 183. See, e.g., Community For Creative Non-Violence v. Reid, 490 U.S. 730, 739 (1989) (“The starting point for our interpretation of a statute is always its language.”); Oliver Wendell Holmes, The Theory of Legal Interpretation, 12 HARV. L. REV. 417, 419 (1899) (“We do not inquire what the legislature meant; we ask only what the statute means.”).
  • 392 THE GEORGETOWN LAW JOURNAL [Vol. 91:357 point must be teased out of a body of case law. In all three cases, a careful study of the applicable law yields fairly clear answers to the question of which perspective should apply. Although we can imagine both internal and external approaches in each case, the law itself points to which perspective is correct. 1. When the Legislature Has Expressly Chosen a Perspective: Variations on Kammersell The choice of perspective presents the least difficulty when the applicable law reveals an express decision to adopt a particular perspective. Consider United States v. Kammersell,184 the case involving an instant message bomb threat that traveled from Utah to Virginia, and then back to Utah. The legal issue was whether Kammersell sent an interstate threat. From Kammersell’s internal perspective, he had merely sent a threat within Utah; from the government’s external perspective, he had sent the threat from Utah to Virginia, and then back to Utah. Which is correct? The answer is up to Congress: Congress can write a threat statute that adopts an internal perspective, or it can write the same statute from an external perspective.185 Our task as lawyers and judges should properly be to determine whether Congress has written the statute from an internal or external view and to apply the perspective that Congress has chosen. We can see this by hypothesizing two ways Congress could have written the federal threat statute. First, imagine that the statute prohibited “knowingly sending a threat, if the communication or signal that carries or constitutes the threat crosses state lines in the course of delivery.” This language indicates a Congressional decision to adopt an external perspective; the doctrine focuses on the external path of the signal across the network. While it would be possible to approach this test from an internal perspective, it would seem highly artificial, as the text expressly delinks the sender’s mens rea from whether the threat cross state lines. The text requires us to focus on the external question of the signal’s path, not the internal question of the sender’s perspective.186 Next imagine that Congress amends the statute, and that this time instead chooses to make it a crime “to send a threat that the sender knows or believes will travel across state lines.” Assuming that the sender will be online, this 184. 196 F.3d 1137 (10th Cir. 1999). Kammersall is discussed supra subsection II.C.1. 185. Granted, interesting questions of Congressional power to enact such a statute would arise in such a case. Congress probably lacks the authority to enact a general threat statute. See United States v. Lopez, 514 U.S. 549, 566 (1995) (holding that Congress exceeded its Commerce Clause powers in enacting the Gun-Free School Zones Act). However, early cases that construed the Commerce Clause broadly to allow Congress to regulate the telephone system would presumably give Congress broad authority to enact an Internet threat statute, even without an interstate communication requirement. See, e.g., Weiss v. United States, 308 U.S. 321, 327 (1939) (“Congress has power, when necessary for the protection of interstate commerce, to regulate intrastate transactions.”). 186. I think this explains the Kammersell decision. See 196 F.3d at 1139. The current text of 18 U.S.C. § 875(c) states that “[w]hoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.” This is an external standard; it looks to whether a communication containing a threat was transmitted in interstate or foreign commerce.
  • 2003] THE PROBLEM OF PERSPECTIVE IN INTERNET LAW 393 amendment switches us from an external to an internal perspective: Now what matters is the state of mind of the Internet user—what the sender knows or believes—rather than the technical details of how the network handled the communication. By requiring that the sender know or believe that the communication will travel across state lines, the latter version of the text signals a Congressional focus on an internal perspective. The user’s own state of mind now matters, triggering an internal analysis for internal Internet users.187 It is unlikely that Congress considered whether it wanted courts to follow an internal or external perspective when it first enacted the interstate threat statute in 1934.188 However, the language it selected then may nonetheless point to a particular perspective today. More importantly, Congress can draft future statutes with the problem of perspective in mind. By making the choice of perspective itself, Congress can simplify the courts’ task dramatically and ensure that the courts follow rather than defeat the legislative intent. 2. When the Legislature Has Implicitly Chosen a Perspective: Copyright Infringement A similar analysis applies when the doctrine does not expressly choose a perspective but its structure implicitly opts for one perspective over the other. Consider the copyright dispute between the major record companies and MP3.com.189 Recall that MP3.com started a service that provided Internet users with music over the Internet. From an internal perspective, the service merely provided its users with a virtual storage locker of their CDs. From an external perspective, however, MP3.com had copied copyrighted materials twice: first by copying the music onto MP3.com’s servers, and then second by copying the music from the servers to send off to the requesting Internet users. The question is which perspective should we choose: the user’s or a third-party observer’s? The answer can be found in the structure of the Copyright Act,190 and in particular the computer-specific language of 17 U.S.C. § 117. As amended in 1980, § 117 carves out a special exception for copies made by computers as an essential step toward using computer programs.191 The section provides that, notwithstanding the general rule of copyright liability, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer 187. Importantly, this does not mean that a subjective standard is always internal, or that an objective standard is external. A subjective standard will follow the perspective of the person whose subjective mental state matters: When that person is online, the internal perspective will govern, whereas when that person is offline, the external perspective will apply. I discuss this approach later, infra Section IV.C. 188. See Pub. L. C. 300, 48 Stat. 781 (1934). 189. See supra section II.D; UMG Recordings, Inc. v. MP3.com, Inc., 92 F. Supp. 2d 349 (S.D.N.Y. 2000). 190. See 17 U.S.C. § 101–1332 (2001). 191. See Micro-Sparc, Inc. v. Amtype Corp., 592 F. Supp. 33, 34–35 (D. Mass. 1984).
  • 394 THE GEORGETOWN LAW JOURNAL [Vol. 91:357 program provided . . . [that] such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner.192 Congress enacted this exception because using computer software requires making a copy; any time a computer runs software, the computer must first copy the program from an external source into its memory.193 The rationale of § 117 is that without this express exception, merely loading a copyrighted file into a computer’s memory would constitute a violation of the Copyright Act.194 The importance of § 117 lies in its strikingly external approach to copyright law. Section 117 appears unnecessary from an internal perspective; a user does not perceive that the operating system has made a copy when it loads a program, just as a user of MP3.com does not perceive that MP3.com has made a copy of his music before sending it to him. As a result, we can read the enactment of § 117 as a signal that Congress has approached copyright infringement from an external perspective. To avoid reducing § 117 to a nullity, and to remain faithful to Congress’s design, we should defer to this understanding and approach questions of infringement in cyberspace from an external perspective as well. This method roughly tracks analogous rules of statutory interpretation. Just as we should avoid interpreting a statute in a way that denies effect to particular statutory language,195 we can avoid choosing a perspective that has the effect of nullifying statutory text, in this case 17 U.S.C. § 117. 3. Teasing Perspective from Case Decisions: The State Action Doctrine Using doctrinal signals to guide the choice of perspective proves more complicated outside the statutory realm, but the same basic insights apply. When the legal doctrine derives from the common law or the Constitution, we can study it for clues about whether it appears more closely attuned to external or internal concerns (or, if a bit of both, whether it seems more attuned to one perspective than another). Not all areas will reveal a particular orientation. However, many areas will contain important clues that facilitate a decision about which perspective to adopt in a given case. Consider the state action doctrine of constitutional law. As we saw in section II.B, private manufacturers and operators of Internet hardware and software can be considered state actors from an internal perspective, but not from an external perspective. How do we choose? We choose by navigating through the Supreme Court’s cases that raised analogous conceptual issues. Litigants have often 192. See 17 U.S.C. § 117 (2000). 193. See Micro-Sparc, 592 F. Supp. 2d at 35 (“The legislative history of § 117 indicates to us that subsection (1) was enacted simply to permit the rightful possessor of a program to input and use it.”). 194. See id. (citing FINAL REPORT OF THE NATIONAL COMMISSION ON NEW TECHNOLOGICAL USES OF COPYRIGHTED WORKS 31 (1978)). 195. See Kungys v. United States 485 U.S. 759, 778 (1988) (noting that “the cardinal rule of statutory interpretation [is] that no provision should be construed to be entirely redundant”).
  • 2003] THE PROBLEM OF PERSPECTIVE IN INTERNET LAW 395 claimed that private action assumed the character of state action because from the individual’s perspective the private actors had assumed government functions. Most famously, the Supreme Court held in Marsh v. Alabama196 that the operators of the “company town” of Chickasaw, Alabama could be state actors; although the operators were technically private employees of the Gulf Shipbuilding Company, they had assumed the role of the town’s governing body and therefore could be treated as state actors for constitutional purposes.197 Marsh does not directly raise the problem of perspective. Like H.L.A. Hart’s critique, the Marsh case asks us to choose an interpretation of what we see in the physical world, rather than choose between two different representations of what we see. At the same time, Marsh resonates with the internal-external critique. Both Marsh and the problem of perspective consider whether and when the law should credit a participant’s view of the world around him. In particular, Marsh suggests that there may be room for an internal perspective in Internet law; an ISP or software company may “seem” like the government to an Internet user like the Gulf Shipbuilding Company “seemed” like the government to the residents of Chickasaw, Alabama.198 The remainder of the Court’s state action jurisprudence suggests, however, that an internal approach could apply in only extremely limited circumstances. While Marsh remains good law, the Supreme Court generally has rejected the Marsh approach when a private entity “seemed” like the government only to specific individuals encountering the entity in the context of a specific relationship. For example, the Court has rejected the argument that the National Collegiate Athletic Association is a state actor because it acts as the government to college athletes and coaches;199 that the owner of a private shopping mall is a state actor because it acts as the government to its customers;200 that insurance companies can be state actors because they act as the government to employees seeking worker’s compensation benefits;201 that a private utility company is a state actor because it acts as the government to its customers;202 and that administrators of a private school can be private actors because they act as the 196. 326 U.S. 501 (1946). 197. Id. at 507–08. 198. Unsurprisingly, the plaintiffs in Cyber Promotions v. AOL relied heavily upon Marsh in their briefs. See 948 F. Supp. 436, 442 (E.D. Pa. 1996) (“Cyber therefore contends that AOL’s Internet e-mail accessway is similar to the company town in [Marsh] which the Supreme Court found performed a public function and therefore was a state actor.”). 199. See National Collegiate Athletic Ass’n v. Tarkanian, 488 U.S. 179, 195 (1988) (holding that the NCAA is not a state actor). 200. See Hudgens v. NLRB, 424 U.S. 507, 518–20 (1976) (holding that a shopping center is not a state actor), overruling Food Employees v. Logan Valley Plaza, 391 U.S. 308 (1968). 201. See Am. Mfrs. Mutual Ins. Co. v. Sullivan, 526 U.S. 40, 58 (1999) (holding that insurance companies did not act as state actors when they denied insurance benefits to claimants). 202. See Jackson v. Metro. Edison Co., 419 U.S. 345, 358–59 (1974) (holding that a utility company is not a state actor).
  • 396 THE GEORGETOWN LAW JOURNAL [Vol. 91:357 government to its students.203 The Court has effectively adopted an external viewpoint in these cases, describing the private entities based on their appearance to outsiders rather than the internal perceptions of their users and customers. These cases suggest that the courts should approach most (if not all) questions of state action in cyberspace from an external perspective.204 The claim that “within my world, this entity is like the government to me” is not enough to trigger state action, regardless of whether that “world” is the world of a college athlete, shopping mall visitor, student, or Internet user. Although Marsh leaves open the possibility that an internal approach may be appropriate in some cases, the remainder of state action case law indicates that the norm when applying the state action doctrine in cyberspace should be an external perspective. C. A SECOND APPROACH: FOLLOWING THE PERSPECTIVE OF THE PERSON THE LAW SEEKS TO REGULATE Although doctrine guides the choice of perspective in most cases, it may prove unilluminating in some. Doctrine alone will not always resolve the problem of perspective. When it does not, a second strategy may prove helpful: applying the perspective of the individual whom the law seeks to regulate. As suggested earlier, I am more cautious about this second approach than the first. Nonetheless, I think it provides a potentially useful way to approach the problem of perspective when a close reading of doctrine proves insufficient. The core theory behind applying the perspective of the regulated individual is that legal rules set up regulatory schemes designed to influence the behavior of targeted individuals.205 For example, traffic laws seek to regulate drivers; contract law seeks to regulate contracting parties. Because these laws attempt to regulate identifiable groups, we can best translate the function of our regulatory schemes from the physical world to the Internet by following the perspective of the individual the law seeks to regulate as that individual interacts with the Internet. I have in mind an objective test, not a subjective one. The question is not whether a particular individual subjectively understood the Internet in a particular way, but rather whether his conduct was online or offline.206 When the law seeks to regulate offline conduct, we can apply an external perspective; when it seeks to regulate online conduct, we can apply an internal perspective. 203. See Rendell-Baker v. Kohn, 457 U.S. 830, 843 (1982) (holding that a private school is not a state actor). 204. Accord Berman, supra note 67, at 1267 (“The state action doctrine . . . poses a significant challenge to those who see private regulatory power as a threat to individual rights and public discourse online.”). 205. See HART, supra note 152, at 10–20. 206. This follows from the regulatory function that the law seeks to achieve. The law seeks to regulate all of those in the party’s position, regardless of the subjective perspective that certain regulated individuals may adopt. Accordingly, it looks objectively to whether the regulated individual interacts with the network as a user or a third-party.
  • 2003] THE PROBLEM OF PERSPECTIVE IN INTERNET LAW 397 The law’s perspective will track the perspective of the individual the law seeks to regulate. As with the first method, I see this approach as a method rooted in fidelity to existing law; it seeks to apply law to the Internet by transferring the law’s regulatory scheme as faithfully and completely as possible from the physical world to the Internet. It sees that the law imposes rules on regulated actors by telling them what they can and cannot do, and ensures that the rules that these actors encounter online are the same as those they encounter offline. Rather than hold these actors to a foreign perspective they do not encounter and may be unable to predict,207 we can break a doctrinal tie between perspectives by following the perspective that regulated actors encounter when they interact with the Internet. In a sense, this second approach is a more abstract version of the first one. Both methods are rooted in doctrine; in the first approach, we look to doctrine to see whether the doctrine tracks internal or external concerns, and in the second we look to doctrine to see who the law regulates. The latter approach can help when the former does not, however, because clues for whether doctrine tracks internal or external concerns tend to be explicit, and such clues may or may not exist. In contrast, the law will usually (if not always) regulate a particular party, offering a second doctrinal hook when the first one fails. 1. An Example: The Fourth Amendment The Fourth Amendment provides a useful example. Assume for now208 that Fourth Amendment doctrine does not necessarily resolve whether to apply an internal or external approach. The question becomes, who does the Fourth Amendment try to regulate? If we can identify who the Fourth Amendment regulates, we can pick a perspective by following the viewpoint of that party as they interact with the network. 207. Wiretapping provides a good example. Imagine a Fourth Amendment rule that the police can wiretap a wire carrying Internet traffic without a warrant only when the users of that line do not have a reasonable expectation of privacy in their communications sent over that line as evaluated from the users’ internal perspective. See 18 U.S.C. § 2511(2)(i) (2000) (creating a similar rule by statute in narrow circumstances). Under this rule, a police officer approaching the line externally cannot tap the line until he is satisfied that the traffic flowing through the line is not part of a communication that when reconstructed into a user’s internal world would be protected under the Fourth Amendment. The difficulty is that the external police officer has absolutely no idea of whether a particular communication would be protected by an internal Fourth Amendment rule until after he has tapped the line. He would need to tap the line first and reconstruct the communications later. Even then it may be impossible to evaluate the effect of the tap on the user’s privacy rights, as the police officer would have no way of knowing the circumstances of the sender or receiver of the communication. If the Internet user is at home, he presumably would have a reasonable expectation of privacy; if he is in prison, he would not. Holding a police officer to this internal standard is unworkable from the officer’s external standpoint; he would have no idea of the effect that his external conduct would have on internal concerns, and therefore no idea of when he can tap a line. See generally Kerr, supra note 14, at 1298–1300. 208. I will return to this point later; see infra section IV.D.
  • 398 THE GEORGETOWN LAW JOURNAL [Vol. 91:357 According to the Supreme Court, “Fourth Amendment doctrine . . . is primarily intended to regulate the police in their day-to-day activities.”209 The rules set up a regulatory scheme that limits how the government can collect evidence of crime.210 Although the underlying purpose of the Fourth Amendment is to protect privacy,211 Fourth Amendment doctrine protects privacy by regulating how the government investigates crime. In developing that regulatory scheme, the Court strives to create readily administrable rules212 that the police can follow “on the spur (and in the heat) of the moment.”213 Viewing Fourth Amendment law as a scheme for regulating the police suggests that we may try to choose a perspective in Fourth Amendment cases by following the perspective of the police. When the police officer is offline, apply an external perspective; when the police officer is online, switch to an internal perspective. Although cases applying the Fourth Amendment to the Internet remain quite sparse, the few decided cases suggest that the courts have done just that. For example, in United States v. Charbonneau,214 a Florida police officer working with an FBI undercover task force went online posing as a pedophile named “Mikey1L.”215 Mikey1L visited AOL chat rooms devoted to child pornography and recorded everything he observed.216 At one point when Mikey1L was logged in to one of the chat rooms, another chatroom visitor named “Charbyq” sent an e-mail to everyone else in the chat room that included an attachment containing child pornography. The FBI then traced the “Charbyq” account to Kenneth Charbonneau, a resident of Columbus, Ohio, and charged him with distributing child pornography.217 Charbonneau responded with a motion to suppress, in which he claimed that the undercover police officer had violated his “reasonable expectation of privacy” by recording everything in the chat room and receiving Charbonneau’s e-mail under false pretenses.218 The court adopted the officer’s internal perspective and rejected Charbonneau’s argument. The court analogized the chat room to a physical room, and the online police officer to an undercover agent located “in” the chat room. From this virtual perspective, the facts closely matched those in Hoffa v. United States,219 a Supreme Court case in which mobster Jimmy Hoffa had spoken of 209. New York v. Belton, 453 U.S. 454, 458 (1981) (quoting Wayne LaFave, “Case-By-Case Adjudication” Versus “Standardized Procedures”: The Robinson Dilemma, 1974 S. CT. REV. 127, 142). 210. See William J. Stuntz., Reply, 93 MICH. L. REV. 1102, 1103 (1995) (“It is common ground in Fourth Amendment law and literature . . . that its primary purpose should be to regulate what police officers can see and hear.”). 211. See Warden v. Hayden, 387 U.S. 295, 304 (1967) (“[T]he principal object of the Fourth Amendment is the protection of privacy.”). 212. See Atwater v. City of Lago Vista, 532 U.S. 318, 347 (2001). 213. Id. 214. 979 F. Supp. 1177 (S.D. Ohio 1997). 215. Id. at 1179. 216. Id. 217. Id. 218. Id. at 1183. 219. 385 U.S. 293 (1966).
  • 2003] THE PROBLEM OF PERSPECTIVE IN INTERNET LAW 399 his crimes amidst a colleague who turned out to be a government informant.220 The Court held that the Fourth Amendment did not protect Hoffa against his misplaced confidences; Hoffa had assumed the risk that the friends among whom he spoke would turn against him.221 To the Charbonneau court, an undercover agent logged in to a chat room required a straightforward application222 of Hoffa: All of the evidence gathered by the FBI from the chat rooms resulted from the presence of undercover agents in the rooms. Clearly, when Defendant engaged in chat room conversations, he ran the risk of speaking to an undercover agent. Furthermore, Defendant could not have a reasonable expectation of privacy in the chat rooms. Accordingly, the e-mail sent by Defendant to others in a “chat room” is not afforded any semblance of privacy; the government may present the evidence at trial.223 Note that the court did not approach the chat room externally; it did not describe the “chat room” as a computer program hosted by remote computer servers that manage the communications among users logged in to the network.224 Instead, the court applied an internal perspective and understood the chat room as a virtual room.225 Courts have approached the Fourth Amendment quite differently when law enforcement agents interact with computer networks as outsiders. Bohach v. City of Reno226 provides a helpful illustration. In this case, investigators from the Reno, Nevada Police Department conducted an internal affairs investigation into possible misconduct by two police officers, John Bohach and Jon Catalano. The investigators sought copies of incriminating alphanumeric pages that had been sent between the two officers using the police department computer network. The department computer network included a special paging program called “Alphapage,” which worked by storing copies of pages on a central server and then broadcasting the page over radio frequencies.227 220. Id. at 298. 221. Id. at 310. 222. See Charbonneau, 979 F. Supp. at 1184. 223. Id. at 1185. 224. See MULLER, supra note 12, at 31–37 (explaining how chat rooms work). 225. Courts have also applied an internal perspective to law enforcement searches of computer files stored on a hard drive. The courts have analogized the files stored on a hard drive to individual closed containers, and have copied the Fourth Amendment rules that apply to accessing containers to the case of accessing files. See, e.g., United States v. Runyan, 275 F.3d 449, 464 (5th Cir. 2001); United States v. Barth, 26 F. Supp. 2d 929, 936–37 (W.D. Tex. 1998); United States v. Reyes, 922 F. Supp. 818, 832–33 (S.D.N.Y. 1996); United States v. Lynch, 908 F. Supp. 284, 287 (D.V.I. 1995); United States v. Chan, 830 F. Supp. 531, 535 (N.D. Cal. 1993); United States v. Blas, No. 90-CR-162, 1990 WL 265179, at *21 (E.D. Wis. Dec. 4, 1990). Rather than focusing on the external picture of how the magnets collect data from across the hard drive and piped to computer memory, courts have adopted the internal picture of opened and closed containers. 226. 932 F. Supp. 1232 (D. Nev. 1996). 227. Id. at 1234.
  • 400 THE GEORGETOWN LAW JOURNAL [Vol. 91:357 The internal affairs investigators obtained copies of the pages between Bohach and Catalano by accessing the stored files that were retained on the network server. Bohach and Catalano sued, claiming that the investigators had violated the Fourth Amendment by accessing their private communications without a warrant.228 The court applied an external perspective and rejected the officers’ Fourth Amendment claims. The Alphapage system automatically recorded and stored the contents of all pages sent over the computer network on a centralized server, the court noted, “not because anyone is ‘tapping’ the system, but simply because that’s how the system works.”229 To the investigators, the police computer network was merely a repository for information that they could use to collect evidence for their case. The court matched their external perspective of the network with an external application of the Fourth Amendment. At first blush, Charbonneau and Bohach may appear inconsistent with each other. Bohach applied an external perspective, Charbonneau an internal perspective. However, I think the two are quite consistent, in that each applied the perspective of the individual the law seeks to regulate—here, law enforcement officers searching for evidence of crimes—and applied the Fourth Amendment’s regulatory framework to the version of the world that the officers encountered as they interacted with the network. In Charbonneau, the police officer interacted with the Internet as a participant, logging on to the Internet and entering a chat room. In Bohach, the investigators approached the network as external observers, viewing the network as a collection of physical boxes and wires that had stored electronic copies of past communications. By matching the perspective of the law to the perspective of the police, both courts made sure that the Fourth Amendment’s set of rules applied to the officers’ interactions with the Internet just as it would with the officer’s interactions with the physical world. 2. Mediating Between the Two Approaches and the Need for Judgment I have now articulated two ways of resolving the problem of perspective: First by examining the doctrine to see if it reflects an implicit or explicit choice of perspective, and if that fails to produce an answer, then by following the perspective of the party that the applicable law seeks to regulate. Although these two guideposts can help resolve the problem of perspective, they are not self-executing. Difficult questions of judgment remain. This subsection examines some of the difficult questions that can arise when we apply the framework to different cases. One difficult problem that arises in applying the framework is this: How do you know when the first approach resolves which perspective to apply, obviating the need for the second? Consider the Fourth Amendment. At first blush, it seems plausible to conclude that the modern Fourth Amendment simply reflects 228. The officers also alleged statutory claims but were unsuccessful. Id. at 1236. 229. Id. at 1234 (emphasis added).
  • 2003] THE PROBLEM OF PERSPECTIVE IN INTERNET LAW 401 an internal approach, or alternatively tasks us with following the perspective of the person whose privacy rights are at stake. After all, the touchstone of the modern Fourth Amendment asks whether the government conduct violates a “reasonable expectation of privacy.”230 This certainly sounds like an internal inquiry. The doctrine focuses on the user’s expectation, and in particular whether the user’s expectation is reasonable. Further, it is generally understood that the Katz case that introduced the “reasonable expectation of privacy” test also rejected the Olmstead majority view (which featured Taft’s external approach) in favor of something closer to Brandeis’s dissent (which adopted an internal approach).231 If this is true, then the first approach would tell us to follow the user’s perspective, and we should not get to the second approach, which pointed us to the police officer’s perspective. I think the resolution of this tension lies in a close reading of the cases interpreting the Fourth Amendment. A majority of the Supreme Court has generally rejected the notion that an expectation of privacy is “reasonable” merely because a reasonable person would expect privacy in the circumstances.232 Instead, the Court has required that the expectation be “legitimate,” which often leads the court to an analysis heavily influenced by whether the government has violated the defendant’s property rights in the course of its investigation.233 This approach has often focused the courts (rightly or wrongly) on external rather than internal questions when it has applied the Fourth Amendment to new technologies. Ironically, despite the common wisdom that the Supreme Court has rejected Taft and embraced Brandeis, the Court’s decisions more closely resemble Taft’s external approach than Brandeis’s internal method. The clearest example of this appears in Smith v. Maryland.234 In some ways, Smith offers a repeat of the arguments in Olmstead, except this time post-Katz. Smith considered the Fourth Amendment implications of installing a pen register, which is a device that records the telephone numbers dialed on a particular phone.235 The police asked the phone company to install a pen register on the telephone line of Michael Lee Smith to confirm that Smith was a stalker the police were trying to catch.236 When Smith later called his victim’s home, the pen register attached to his phone line at the telephone company recorded the 230. Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring). 231. See, e.g., LESSIG, supra note 20, at 117 (“The Court in Katz followed Brandeis rather than Taft.”). 232. I developed this at length in Kerr, supra note 57, at 507–12. 233. See id. See generally Thomas K. Clancy, What Does the Fourth Amendment Protect: Property, Privacy, or Security?, 33 WAKE FOREST L. REV. 307 (1998); Orin S. Kerr, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Restraint (unpublished manuscript, on file with author). 234. 442 U.S. 735 (1979). 235. See United States v. Guglielmo, 245 F. Supp. 534, 535 (N.D. Ill. 1965). 236. Smith, 442 U.S. at 737.
  • 402 THE GEORGETOWN LAW JOURNAL [Vol. 91:357 fact that he had dialed her number.237 The police then used this information to support a warrant to search Smith’s home, which resulted in evidence that led to Smith’s conviction.238 Before the Supreme Court, Smith contended that the use of the pen register violated the Fourth Amendment.239 In effect, Smith offered an internal argument: He reasoned that from his perspective as a telephone user, his dialing of the numbers was a private act. In an opinion by Justice Blackmun, a majority of the Court applied an external perspective of the telephone network to reject Smith’s claims.240 The majority did not look to whether dialing phone numbers seems private to a telephone user. Instead, the court focused on how the telephone network worked and how the network processed the dialing of numbers.241 Echoing Taft’s reasoning in Olmstead, Justice Blackmun treated Smith’s act of dialing the numbers as the functional equivalent of telling an operator the number to be dialed: When he used his phone, [Smith] voluntarily conveyed numerical information to the telephone company and “exposed” that information to its equipment in the ordinary course of business. In so doing, [Smith] assumed the risk that the company would reveal to police the numbers he dialed. The switching equipment that processed those numbers is merely the modern counterpart of the operator who, in an earlier day, personally completed calls for the subscriber. [Smith] concedes that if he had placed his calls through an operator, he could claim no legitimate expectation of privacy. We are not inclined to hold that a different constitutional result is required because the telephone company has decided to automate.242 Notably, the dissenting justices found this external approach wanting. They offered an internal perspective, from which the majority’s external analysis “no more than describe[d] the basic nature of telephone calls”243 and ignored the privacy interests of telephone users when they were placing calls.244 I do not think Smith v. Maryland resolves the question of whether the Fourth Amendment is internal or external. However, it does reveal some of the complexities of choosing between real and virtual perspectives. The phrase “reasonable expectation of privacy” does not itself determine which perspective to apply. Instead, if our goal is fidelity to existing law, we have to conduct a careful inquiry into how the courts have applied the test in prior cases. When the results of that test prove inconclusive, as I think they do here, following the 237. 238. 239. 240. 241. 242. 243. 244. Id. Id. Id. at 742. Id. at 741–46. See id. at 742–43. Id. at 744–45. Id. at 746 (Stewart, J., dissenting). Id. at 747–48 (Stewart, J., dissenting).
  • 2003] THE PROBLEM OF PERSPECTIVE IN INTERNET LAW 403 perspective of the regulated party (as the Court did in Smith245) can provide an answer. We can probably look at this problem through the lens of the first approach as well, by concluding that the doctrine points us to follow the perspective of the regulated party. In the case of the Fourth Amendment, doctrine from precedents such as Smith, Charbonneau, and Bohach suggest that we should follow the perspective of the police officers conducting the investigation. We can see another twist on this problem by recalling the second hypothetical from Part II. This problem considers whether a search warrant authorizing a search of “123 Pine Street, Suite 200” allows officers to search for and retrieve files that are virtually present on the network but actually located on a remote server far away.246 From an internal perspective, the officers can search and retrieve the files because they are virtually present; from an external perspective, they cannot conduct the search because the files are actually located in a different location. Which perspective wins? In this case, I think the doctrine does provide a clear enough answer so that resort to the perspective of the police is not necessary. Rule 41 of the Federal Rules of Criminal Procedure makes clear that search warrants can be authorized to conduct searches only in specific places in the physical world.247 Although not a constitutional command,248 the Rule limits search warrants to searches of property within the federal judicial district in which the warrant is obtained, with limited exceptions: a search warrant authorized by this rule may be issued (1) by a federal magistrate judge, or a state court of record within the federal district, for a search of property or for a person within the district and (2) by a federal magistrate judge for a search of property or for a person either within or outside the district if the property or person is within the district when the warrant is sought but might move outside the district before the warrant is executed and (3) in an investigation of domestic terrorism or international terrorism, . . . by a Federal magistrate judge in any district in which activities related to the terrorism may have occurred, for a search of property or for a person within or outside the district.249 This language shows careful attention to the location of the property that can 245. In Smith, the pen register information was simply data that the phone company could collect to help the officers gather probable cause to obtain a warrant to search Smith’s office. The police were not “online” in “phonespace.” Accordingly, their perspective was external, as was that of the majority. See id. at 741–46. 246. See subsection II.A.1. 247. See FED. R. CRIM. P. 41. 248. It may, however, have constitutional dimensions. See Weinberg v. United States, 126 F.2d 1004, 1006–07 (2d. Cir. 1942) (holding that a search warrant issued by a District Court judge in Michigan to seize property in New York violates both “[t]he Fourth Amendment and the legislation governing search warrants”). 249. FED. R. CRIM. P. 41(a) (emphasis added).
  • 404 THE GEORGETOWN LAW JOURNAL [Vol. 91:357 be searched by a particular warrant. It refers specifically to when a warrant can authorize a search “outside the district.”250 Given that these districts are federal judicial districts, not more ethereal concepts that could include a “district of cyberspace,”251 the Rule suggests that the permissibility of a remote search should be resolved through an external perspective. A district court recently applied such an external approach to a remote search in United States v. Gorshkov.252 In Gorshkov, FBI agents in Seattle conducted a remote search of an Internet account in Russia without a warrant to secure evidence of computer hacking conducted by a Russian suspect who had just been arrested and taken into custody in Seattle.253 The Russian hacker challenged the warrantless search on the ground that it violated his Fourth Amendment rights. In rejecting the hacker’s argument, the court applied an external perspective to the search; it viewed the search as a search occurring in Russia, not one occurring in Seattle or in cyberspace.254 Although Gorshkov involves a warrantless search, its application of an external perspective to a remote search over the Internet suggests that the territorial implications of Internet searches should and will be resolved primarily through an external perspective.255 A final wrinkle in applying the framework arises when doctrine does not answer which perspective to apply, and we turn for guidance to the perspective of the party to be regulated. The difficulty here is that perspectives may change; a regulated party may switch perspectives, changing from an internal to an external perspective or vice versa in the middle of the conduct that the law seeks to regulate. For example, a law enforcement agent executing a search warrant to seize a computer file from a network may approach the network externally at first (entering the building where the server is located), but then switch to an internal perspective (by logging on to the network to access the file). This poses a difficult problem: If we follow the perspective of the 250. Id. 251. See Henry H. Perritt Jr., Jurisdiction in Cyberspace, 41 VILL. L. REV. 1, 100–01 (1996) (speculating that someday there may be a “U.S. District Court for the District of Cyberspace”). 252. No. CR00-55OC, 2001 WL 1024026 (W.D. Wash. May 23, 2001). 253. See id. at *1. 254. See id. at *3 (“The Fourth Amendment does not apply to the agents’ extraterritorial access to computers in Russia and their copying of data contained thereon. First, the Russian computers are not protected by the Fourth Amendment because they are property of a non-resident and located outside the territory of the United States.”) (citing United States v. Verdugo-Urquidez, 494 U.S. 259 (1990)). 255. An interesting line of cases that may challenge this conclusion are those cases holding that the police may answer telephone calls inside a house when executing a search warrant inside that house, at least so long as there is a good chance that the telephone call will yield additional evidence of the crime. See United States v. Gallo, 659 F.2d 110, 113–14 (9th Cir. 1981); United States v. Fuller, 441 F.2d 755, 760 (4th Cir. 1971). If the police may answer the telephone in the place to be searched, they arguably can accept incoming data sent over the Internet to the place to be searched as well. The difficulty with this argument is that in the case of an Internet search, the search occurs when the officer sends computer commands to the remote server ordering it to look through the server and send files back. It is the search of the server, not the receiving of the data, that raises Fourth Amendment difficulties.
  • 2003] THE PROBLEM OF PERSPECTIVE IN INTERNET LAW 405 regulated party, do we switch perspectives as the party switches from offline to online and perhaps even back? I think the best approach is to apply the primary perspective that the regulated party embraces as it approaches the Internet. Parties should not be allowed to circumvent a regulatory scheme by shifting perspectives to trigger a less burdensome test. It would gut Fourth Amendment protections to allow police to switch perspectives in a conscious effort to trigger a lower burden. Courts should not allow this.256 What matters in the case of the Fourth Amendment is whether the officer interacts with the Internet as a virtual world (as in the chat room of Charbonneau) or as a physical network (as in the server storing messages in Bohach). The primary perspective should govern. CONCLUSION The problem of perspective sheds light on the law of the Internet by revealing how several problems of cyberlaw are really conflicts between internal and external renderings of the facts. This insight does not answer which perspective to apply. However, I think it does raise doubts about some of the grander aspirations of cyberlaw. Whether the problem of perspective will remain as important as it is today depends on two competing forces. On the one hand, the advance of technology will make virtual realities more lifelike and convincing. This should make the internal perspective more appealing, at least to some; the jump from physical reality to virtual reality will seem less forced and more intuitive. At the same time, I expect that the external perspective will draw adherents from the increasing numbers who understand how the Internet works. As more people understand the technical details of the Internet, those details may become part of the public’s understanding of the technology, fueling the external perspective. Perhaps one of these influences will overpower the other, establishing a more internal or external approach over time. Or perhaps an equilibrium will be reached, and both perspectives will survive and continue to shape the law of the Internet in the future. 256. Although recent Fourth Amendment jurisprudence shies away from inquiring into the subjective intent of the officer conducting the search, see, for example, Whren v. United States, 517 U.S. 806, 813 (1996), significant exceptions still exist. See Indianapolis v. Edmond, 531 U.S. 32, 44 (2000) (allowing inquiry into the programmatic purpose of a roadblock scheme to help determine its constitutionality); Florida v. Wells, 495 U.S. 1, 4 (1990) (stating that “an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence”). Accordingly, the law would not clearly foreclose an inquiry into whether the officer switched perspectives to be regulated by a less demanding standard.