THE GEORGE WASHINGTON UNIVERSITY
PUBLIC LAW AND LEGAL THEORY WORKING PAPER NO. 38
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:
The Problem of Perspective in Internet Law
ORIN S. KERR*
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).
THE GEORGETOWN LAW JOURNAL
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
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
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.
THE PROBLEM OF PERSPECTIVE IN INTERNET LAW
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
THE GEORGETOWN LAW JOURNAL
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,
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
THE PROBLEM OF PERSPECTIVE IN INTERNET LAW
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.
THE GEORGETOWN LAW JOURNAL
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 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”).
THE PROBLEM OF PERSPECTIVE IN INTERNET LAW
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 “188.8.131.52.”23 The user’s browser then issues another request, this
time directed to “184.108.40.206,” 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
22. See id. at 222–23 (explaining IP addresses).
23. This can be veriﬁed in several ways, among them by typing in “220.127.116.11” 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 . . . .”).
THE GEORGETOWN LAW JOURNAL
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
THE PROBLEM OF PERSPECTIVE IN INTERNET LAW
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).
THE GEORGETOWN LAW JOURNAL
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.”).
THE PROBLEM OF PERSPECTIVE IN INTERNET LAW
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
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.”).
THE GEORGETOWN LAW JOURNAL
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,
THE PROBLEM OF PERSPECTIVE IN INTERNET LAW
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
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
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.”
THE GEORGETOWN LAW JOURNAL
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
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).
THE PROBLEM OF PERSPECTIVE IN INTERNET LAW
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
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.
63. Id. at 441.
THE GEORGETOWN LAW JOURNAL
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
THE PROBLEM OF PERSPECTIVE IN INTERNET LAW
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
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).
THE GEORGETOWN LAW JOURNAL
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
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
THE PROBLEM OF PERSPECTIVE IN INTERNET LAW
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
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.
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.
88. Thomas, 74 F.3d at 706.
89. Id. at 706–07.
THE GEORGETOWN LAW JOURNAL
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
Id. at 707.
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.
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,
THE PROBLEM OF PERSPECTIVE IN INTERNET LAW
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
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.
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
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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,
THE PROBLEM OF PERSPECTIVE IN INTERNET LAW
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
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.
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
THE GEORGETOWN LAW JOURNAL
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
THE PROBLEM OF PERSPECTIVE IN INTERNET LAW
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.
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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.
THE PROBLEM OF PERSPECTIVE IN INTERNET LAW
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
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
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.
139. Id. at 466.
140. See id.
141. Id. at 479 (Brandeis, J., dissenting).
THE GEORGETOWN LAW JOURNAL
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
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).
THE PROBLEM OF PERSPECTIVE IN INTERNET LAW
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
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
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.
155. See id. at 90.
156. See Kerr, supra note 14, at 1290 n.7.
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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,
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).