Ssrn id310020

187 views
128 views

Published on

Published in: Technology
0 Comments
0 Likes
Statistics
Notes
  • Be the first to comment

  • Be the first to like this

No Downloads
Views
Total views
187
On SlideShare
0
From Embeds
0
Number of Embeds
0
Actions
Shares
0
Downloads
1
Comments
0
Likes
0
Embeds 0
No embeds

No notes for slide

Ssrn id310020

  1. 1. THE GEORGE WASHINGTON UNIVERSITY LAW SCHOOL PUBLIC LAW AND LEGAL THEORY WORKING PAPER NO. 38 2002 The Problem of Perspective in Internet Law Professor Orin S. Kerr Georgetown Law Journal, Vol. 91, February 2003 This paper can be downloaded without charge from the Social Science Research Network Electronic Paper Collection: http://ssrn.com/abstract_id=310020
  2. 2. The Problem of Perspective in Internet Law ORIN S. KERR* INTRODUCTION The lawyer’s quintessential task is to apply legal rules to facts.1 When we apply law to the Internet, however, a difficult question arises: What are the “facts” of the Internet? The Internet’s facts depend on whether we look to physical reality or virtual reality for guidance. We can model the Internet’s facts based on virtual reality, looking from the perspective of an Internet user who perceives the virtual world of cyberspace and analogizes Internet transactions to their equivalent in the physical world.2 Alternatively, we can model the facts based on the physical reality of how the network operates. From this perspective, Internet transactions can be understood based on how the network actually works “behind the scenes,”3 regardless of the perceptions of a user. Because the Internet can generate a virtual reality, it offers two distinct sets of facts: one based on physical reality, the other based on virtual reality. The Internet’s ability to generate a virtual reality creates what I will call the problem of perspective in Internet law. The problem is that whenever we apply law to the Internet, we must first decide whether to apply the law to the facts as seen from the viewpoint of physical reality or virtual reality. In this Article, I will refer to the viewpoint of virtual reality as the “internal perspective” of the Internet, and the viewpoint of physical reality as the “external perspective.” This Article argues that the problem of perspective pervades Internet law, and that the nature and shape of Internet law depends upon how it is resolved in particular cases. In a surprising number of situations, we arrive at one result when applying law from an internal perspective and a different result when applying law from an external perspective. In fact, many of the major disputes within the field of “cyberlaw”4 boil down to clashes between internal and external perspectives. To complicate matters, neither perspective holds an a priori claim to greater legitimacy. Both internal and external perspectives can appear perfectly viable depending on the circumstances, and courts and commen- * Associate Professor, George Washington University Law School. Thanks to Rachel Barkow, Amy Barrett, Laura Berger, James Boyle, Robert Brauneis, Brad Clark, Erica Hashimoto, Dan Hunter, Mark Lemley, Doug Lichtman, Chip Lupu, Dan Markel, Jonathan Molot, Richard Pierce, Jeffrey Rosen, Michael Selmi, Joe Singer, Daniel Solove, Peter Swire, Molly Van Houweling, and Tim Wu, as well as the participants in the George Washington University Law School faculty workshop. I benefited greatly from presenting early versions of this piece before the law faculties at George Washington, Northwestern, Rutgers-Newark, Cardozo, Washington University, and Boston College. 1. See, e.g., EDWARD H. LEVI, AN INTRODUCTION TO LEGAL REASONING 1–3 (1949). 2. See infra notes 8–9 and accompanying text. 3. See infra notes 10–12 and accompanying text. 4. See Lawrence Lessig, The Law of the Horse: What Cyberlaw Might Teach, 113 HARV. L. REV. 501, 501 (1999). 357
  3. 3. 358 THE GEORGETOWN LAW JOURNAL [Vol. 91:357 tators switch between them frequently without even recognizing the change.5 The goal of this Article is to explain the problem of perspective, to show its importance, and to offer an approach that can help lead to its solution. I argue that we need to be aware of the problem of perspective and develop legal tools that can help us choose between real and virtual understandings of the Internet when we apply law to it. I also contend that the problem of perspective is a new problem, or at least a new twist on an older one. Although prior technologies such as the telephone hinted at the clash in narrow ways,6 computer networks and the Internet provide the first widespread technology that creates a virtual world for its users that can compete on an equal footing with the real one. As a result, Internet law prompts us to confront the problem of perspective for the first time. I will develop my argument in four parts. In Part I, I explain the conceptual distinction between internal and external understandings of the Internet. The Part explores how and why both perspectives offer plausible means of modeling the facts of the Internet and how the shape of Internet law hinges on whether we approach the law of the Internet internally or externally. Part II shows that the choice between internal and external perspectives presents a recurring and powerful theme in Internet law. This Part explores the importance of the problem of perspective in four areas of law. The analysis begins with the Fourth Amendment in cyberspace, and in particular Fourth Amendment restrictions on obtaining e-mail and conducting remote network searches; turns next to Internet governance, with particular focus on the ideas of Lawrence Lessig and the scope of the state action doctrine; follows with computer crime law, where it shows how internal and external approaches have been raised in appellate cases involving online bomb threats and the distribution of obscene materials over the Internet; and concludes with copyright law, focusing on the recent copyright dispute over the Internet music service MP3.com. Within each area, I show how a range of seemingly unrelated disputes in fact all reflect a clash between internal and external viewpoints. Part III explains the significance of the problem of perspective. It shows how the problem of perspective reflects the universalization of themes presaged in limited ways by the telephone and builds upon and extends theories of systems developed by H.L.A. Hart and others. This Part also argues that we need to develop a new awareness of the problem of perspective, as well as a framework to help mediate between the internal and external perspectives in particular cases. Part IV offers a tentative normative framework for choosing which perspective to apply in a given case. The framework approaches the problem of perspective as a problem of fidelity, in which our goal should be to select the 5. See infra Part II. 6. I discuss the precursors to the problem of perspective in prior technologies such as the telephone and the telegraph in section III.A.
  4. 4. 2003] THE PROBLEM OF PERSPECTIVE IN INTERNET LAW 359 perspective that best reflects the judgments and function of preexisting law. Under this framework, our first step should be to study the legal doctrine for signals that the law already reflects an internal or external approach. When applicable cases or statutes reveal a particular orientation, we should adopt that orientation. When doctrine alone does not answer which perspective should apply, our second step should be to adopt the perspective of the party that the law seeks to regulate. As with the first method, this approach is rooted in fidelity to existing law: It seeks to transfer the law’s regulatory scheme as directly and completely as possible from the physical world to the Internet. I. THE INTERNAL AND EXTERNAL PERSPECTIVES IN INTERNET LAW A. THE PROBLEM OF PERSPECTIVE In the 1999 science fiction thriller The Matrix,7 Keanu Reeves plays a computer hacker named “Neo” who learns that the reality he has known since birth is merely a virtual reality created by a computer network known as the Matrix. The real Neo lies in a semicomatose state attached to the network, to which he and others have been connected by advanced computers that have taken over the world and sap energy from humans while occupying their minds with virtual reality. Neo ends up joining the rebel forces trying to destroy the Matrix, and the movie jumps several times between the virtual world inside the Matrix and the real world outside of the Matrix. The movie presents us with two different realities, two existing worlds. The first reality is the virtual world that we experience inside the Matrix, and the second is the “real” world that we experience outside the Matrix. In addition to being a fun movie, The Matrix points out an important problem that arises when we try to understand the nature of computer networks in general and the Internet in particular. Like Neo confronting the Matrix, we can think about the Internet in two ways, virtual and real. The virtual perspective is like the perspective inside the Matrix: it accepts the virtual world of cyberspace as akin to a reality. Of course, unlike Neo, we know all along that the virtual world that the computer generates is only virtual. But as we try to make sense of what the Internet is, to understand what we experience online, we might decide to treat that virtual world as if it were real. I will call this virtual point of view the internal perspective of the Internet. The internal perspective adopts the point of view of a user who is logged on to the Internet and chooses to accept the virtual world of cyberspace as a legitimate construct.8 To this user, a computer connected to the Internet provides a window to a virtual world that is roughly analogous to the physical world of 7. THE MATRIX (Warner Bros. Pictures 1999). Warner Bros. maintains a website for the movie at http://whatisthematrix.warnerbros.com (last visited Jan. 5, 2003). 8. John Perry Barlow helped popularize the term “cyberspace” with his “Declaration of the Independence of Cyberspace.” See http://www.eff.org/ϳbarlow/Declaration-Final.html (last visited Jan. 5, 2003) (“Governments of the Industrial World, you weary giants of flesh and steel, I come from
  5. 5. 360 THE GEORGETOWN LAW JOURNAL [Vol. 91:357 real space. The user can use her keyboard and mouse to go shopping, send mail, visit a chat room, participate in an online community, or do anything else she can find online.9 The technical details of what the computers attached to the Internet actually do “behind the scenes” don’t particularly matter. What matters is the virtual world of cyberspace that the user encounters and interacts with when he or she goes online. We can also understand the Internet from a different perspective. Like Neo when he is outside the Matrix, we can look at the Internet from the point of view of the physical world, rather than the virtual one. I will call this the external perspective of the Internet. The external perspective adopts the viewpoint of an outsider concerned with the functioning of the network in the physical world rather than the perceptions of a user. From this external viewpoint, the Internet is simply a network of computers located around the world and connected by wires and cables.10 The hardware sends, stores, and receives communications using a series of common protocols.11 Keyboards provide sources of input to the network, and monitors provide destinations for output. When the Internet runs properly, trillions of zeros and ones zip around the world, sending and receiving communications that the computers connected to the network can translate into commands, text, sound, and pictures. From the external perspective, the fact that Internet users may perceive that they have entered a virtual world of cyberspace has no particular relevance. These perceptions reflect the fact that software designers often garnish their applications with icons, labels, and graphics to help novices understand and use them—for example, by writing e-mail programs so that e-mail looks and feels like postal mail.12 These superficialities have no deeper meaning from the external perspective. What matters is the physical network and the technical details of how it works, not the easily manipulated perceptions of Internet users. Both internal and external understandings of the Internet should ring true to most of us. The Internet is a physical network, and it can create a virtual world for its users that can appear sufficiently realistic to its users to make a plausible claim for equal footing with the physical world.13 But the key for us is that by Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather.”). 9. See David G. Post, “The Free Use of Our Faculties”: Thomas Jefferson, Cyberspace, and the Language of Social Life, 49 DRAKE L. REV. 407, 410 (2001). 10. See Reno v. Am. Civil Liberties Union, 521 U.S. 844, 849 (1997) (describing the Internet as “an international network of interconnected computers.”). 11. See PRESTON GRALLA, HOW THE INTERNET WORKS 6–7 (1999). 12. See NATHAN J. MULLER, DESKTOP ENCYCLOPEDIA OF THE INTERNET 87–95 (1999). 13. See Charles Nesson & David Marglin, The Day the Internet Met the First Amendment: Time and the Communications Decency Act, 10 HARV. J. L. & TECH. 113, 121 (1996) (“The Internet at present is mostly text and still photo, but again, the situation is changing daily. Its future promises the supercharged impact of virtual reality and interactivity.”); David R. Johnson & David Post, Law and Borders—The Rise of Cyberspace, 48 STAN. L. REV. 1367, 1367 (1996) (“Cyberspace challenges the
  6. 6. 2003] THE PROBLEM OF PERSPECTIVE IN INTERNET LAW 361 generating a virtual reality, the technology in a sense leaves us with two Internets, rather than one.14 We have an external version of the Internet, and also an internal one. One is physical, the other virtual.15 B. PERSPECTIVE AS A PROBLEM OF LAW Why does this matter to lawyers and to the nature of Internet law? It matters because legal outcomes depend on facts, and the facts of the Internet depend on which perspective we choose.16 This is a very practical problem. The basic task of a lawyer is to apply legal rules to facts—to apply law to an understanding of reality. In the case of the Internet, however, two competing understandings of reality exist. We have a virtual reality from the internal perspective and a physical reality from the external perspective. This means that we face a choice of which perspective to use when applying law to the Internet. Do we decide to follow the internal perspective of virtual reality or the external perspective of physical reality? Which version of the Internet should we pick before applying the law to it? By choosing the perspective, we choose the reality; by choosing the reality, we choose the facts; and by choosing the facts, we choose the law. We can look at this another way by noting the differences between what happens when we apply law to the Internet from an internal versus an external perspective. From the internal perspective of an Internet user, the Internet is cyberspace, and we apply law to the Internet by trying to map the physical world of “realspace” onto the virtual world of cyberspace.17 We look for analogies between cyberspace and realspace, and try to match the rules between them.18 To the external observer, in contrast, the Internet is the physical network, and we apply law to the Internet by applying the law to the electronic transactions underlying the network’s operation. This does not necessarily mean that the Internet must be viewed only as 0s and 1s, any more than modeling the law’s traditional reliance on territorial borders; it is a ‘space’ bounded by screens and passwords rather than physical markers.”). 14. In an earlier essay, I attempted to describe a similar phenomenon by referring to Georges Seurat, whose paintings of nineteenth century Paris consist entirely of small dots. See Orin S. Kerr, Are We Overprotecting Code? Thoughts on First-Generation Internet Law, 57 WASH. & LEE. L. REV. 1287, 1287 (2000). We can understand Seurat’s paintings in two ways: We can look at them “close-up” as just a collection of dots, or else we can step back and see them as depictions of nineteenth century Paris. I argued that the Internet is similar: we can see it as just bits and bytes, like the close-up perspective of Seurat’s paintings, or else we can see it as the virtual world of cyberspace, like viewing a Seurat painting from a distance. See id. at 1287–88. The correspondence between my former and current approach is not exact. However, the “close-up” version of the Internet roughly reflects an external perspective, and the version at a distance generally tracks the internal perspective. 15. Cf. Timothy Wu, Essay, Application-Centered Internet Analysis, 85 VA. L. REV. 1163, 1189 n.70 (1990) (noting the distinction between application layers and networks layers as represented in the International Organization for Standardization’s Open Systems Interconnection model). 16. See, e.g., JEROME FRANK, LAW AND THE MODERN MIND xii–xiv (1949). 17. See Dan Hunter, Cyberspace as Place, and the Tragedy of the Digital Anticommons, 91 CAL. L. REV. (forthcoming February 2003) (discussing applications of Internet law that view cyberspace “as a place.”); Mark Lemley, Place and Cyberspace, 91 CAL. L. REV. (forthcoming February 2003) (same). 18. See Kerr, supra note 14, at 1289.
  7. 7. 362 THE GEORGETOWN LAW JOURNAL [Vol. 91:357 physical world requires us to model sounds as pressure waves or light as photons of energy. But it does mean that we look for analogies between realspace and the behind-the-scenes action that the computers connected to the Internet process and complete. These two approaches are similar to each other and also quite different. In both the external and internal cases, we apply law to “the Internet.” However, our model of what that Internet is—and therefore what Internet law is—varies dramatically depending on the perspective we choose. The law is contingent on the facts, and the facts are contingent on our perspective. What makes this problem unusually interesting is that there is no particular correlation between internal and external renderings of the Internet’s facts. The real produces the virtual, but the virtual need not reflect the real. Significant changes in the behind-the-scenes workings of the Internet can go entirely unnoticed by users.19 At the same time, minor changes in computer code can have a dramatic impact on users’ experiences.20 A typical user immersed in the internal perspective can be blissfully unaware of the complex inner working of the Internet. The lack of correlation between the real and the virtual has profound implications for Internet law. It means that the legal outcomes reached using an internal set of facts exist independently from outcomes reached with an external set of facts. When we apply the law to the facts, an internal perspective will take us down one path, and an external perspective will take us down another. The two paths may happen to converge, but there is no reason to think they will. In effect, we not only have two Internets, but two versions of Internet law. Every time we apply law to the Internet, we will have two possible outcomes: an internal outcome and an external outcome. The two outcomes may happen to match in some cases. In many cases, however, the choice of perspective proves outcome-determinative. Consequently, the shape of Internet law hinges on our choice of perspective. C. AN EXAMPLE: SURFING THE WEB All of this may seem rather abstract, so an example may help. Consider what happens when an Internet user surfs the web. Imagine that an Internet user opens up a web browser and types in “www.amazon.com,” and moments later the homepage of Amazon.com appears on the viewer’s screen. How might we model this event? How can we develop a factual picture of what has happened, so that we can later determine the legal consequences of accessing a webpage? This is easy from an internal perspective. The user has visited Amazon.com’s 19. The differing operations of popular e-mail programs provide an apt comparison. E-mail programs can work in fairly different ways, but those contrasts are unknown to the casual user. See MULLER, supra note 12, at 91–95. 20. See LAWRENCE LESSIG, CODE AND OTHER LAWS OF CYBERSPACE 6 (1999) (explaining that “the software and hardware that make cyberspace what it is regulate cyberspace as it is”).
  8. 8. 2003] THE PROBLEM OF PERSPECTIVE IN INTERNET LAW 363 website, going to Amazon.com’s home on the Internet. The user has visited Amazon.com’s virtual store much like a person might visit a store in the physical world, traveling from one point in cyberspace to another. Of course, we realize that the user has not actually traveled anywhere. The user is just sitting in front of the screen. But from an internal perspective, the essential experience of surfing Amazon.com can be captured by comparing it to visiting a store. From an external perspective, however, the event appears quite different— and significantly more complicated. Behind the scenes, the simple act of typing “www.amazon.com” into a web browser triggers a series of responses from different computers connected to the Internet. The browser begins by sending out a request across the Internet to a special type of computer known as a Domain Name System (DNS) server.21 The browser’s request asks the DNS server to translate the letters of the website address “amazon.com” into an “Internet Protocol” or “IP” address, which is a series of numbers that computers connected to the Internet understand as an address akin to a phone number.22 The DNS server will respond that “www.amazon.com” translates into the IP address “207.171.184.16.”23 The user’s browser then issues another request, this time directed to “207.171.184.16,” asking it to send a set of data files back to the browser. Amazon.com’s computer will receive the request and then send data back to the browser. The browser will receive the data and display it on the user’s screen. The resulting images and text appear in the form of the Amazon. com webpage that the user requested.24 Notice that the internal and external perspectives have produced two different accounts of the same event. One model of the facts follows the virtual perspective of the user, and another model follows the behind-the-scenes perspective of how the Internet actually works. From the internal perspective, visiting Amazon.com resembles visiting a store. The user types in the address, and a moment later is paying a virtual visit to Amazon.com’s site. From the external perspective, visiting Amazon.com resembles calling Information and asking for Amazon. com’s phone number, then dialing the number and asking the representative to send you the latest Amazon.com catalog. The single event of surfing the web produces two set of facts, one internal and the other external. As a result, when we need to apply law to the act of visiting a website, we can apply that law to two different sets of facts, which can produce two different outcomes.25 Note that I have not yet mentioned legal theory. Much of the scholarship on 21. See MULLER, supra note 12, at 71–74 (explaining the function and configuration of DNS servers). 22. See id. at 222–23 (explaining IP addresses). 23. This can be verified in several ways, among them by typing in “207.171.184.16” into any web browser that is connected to the Internet. The browser will direct the user to “http://www.amazon.com.” 24. See MULLER, supra note 12, at 222–23. 25. See Maureen O’Rourke, Property, Rights and Competition on the Internet: In Search of an Appropriate Analogy, 16 BERKELEY TECH. L.J. 561, 580 (2001) (“[C]ourts emphasize different factors depending on whether they focus on the website . . . or the tangible server on which it resides . . . .”).
  9. 9. 364 THE GEORGETOWN LAW JOURNAL [Vol. 91:357 Internet law focuses on normative questions of theory: on what the law should be and how it should or should not change when it moves from the physical world to the Internet.26 These are vitally important questions. However, the problem of perspective arises before we reach them. Before applying the law, we must first develop a mental picture of existing facts upon which the law could apply. The problem of perspective focuses on how we develop that mental picture. Although theory may be needed to resolve the problem of perspective, we do not need theory to recognize it. II. THE POWER OF PERSPECTIVE: FOUR EXAMPLES This Part reveals the importance of perspective by showing how it influences the shape and nature of Internet law across a wide range of substantive areas. The analysis showcases four unrelated fields of law and explains how the problem of perspective affects the shape of law within each. It begins with the Fourth Amendment in cyberspace, and in particular Fourth Amendment restrictions on obtaining e-mail and conducting remote network searches; turns next to Internet governance, with particular focus on the ideas of Lawrence Lessig and the scope of the state action doctrine; follows with computer crime law, where it shows how internal and external approaches have been raised in appellate cases involving online bomb threats and the distribution of obscene materials over the Internet, as well as in the Supreme Court’s decision in Reno v. American Civil Liberties Union;27 and concludes with copyright law, focusing on the recent copyright dispute over the Internet music service MP3.com. The examples in this Part do not present an exhaustive list of legal disputes triggered by the clash between internal and external perspectives. To the contrary, the examples merely offer a few glimpses at a broader phenomenon that occurs when law meets the Internet. By studying these examples, however, we can appreciate the importance of the problem of perspective and become aware of how it influences Internet law. A. THE FOURTH AMENDMENT IN CYBERSPACE The Fourth Amendment law of search and seizure offers a rich panoply of situations in which the distinction between internal and external perspectives takes on critical importance.28 More than most areas of law, Fourth Amendment jurisprudence is heavily spatial:29 the rules speak of rights to access some spaces but not others,30 and the constitutionality of a search often hinges on the 26. See sources cited infra notes 129–33. 27. 521 U.S. 844 (1997). 28. See U.S. CONST. amend. IV. 29. See Erik G. Luna, Sovereignty and Suspicion, 48 DUKE L. J. 787, 838 (1999) (noting the “spatial orientation” of the Fourth Amendment). 30. For example, search warrants can be issued only to search specific places for specific evidence. See Walter v. United States, 477 U.S. 649, 657 (1980) (noting that “[b]ecause indiscriminate searches and seizures conducted under the authority of ‘general warrants’ were the immediate evils that
  10. 10. 2003] THE PROBLEM OF PERSPECTIVE IN INTERNET LAW 365 type of space involved.31 As a result, the choice between internal and external perspectives presents a recurring theme of the Fourth Amendment in cyberspace. I will explore the impact of perspective on the Fourth Amendment in cyberspace by examining two hypotheticals. Both raise important questions that the courts are just beginning to confront and have not yet resolved. The first hypothetical considers whether the Fourth Amendment requires the police to obtain a search warrant to obtain e-mail from an Internet service provider. The second hypothetical asks whether a search warrant that authorizes the search of a computer connected to a network also implicitly authorizes the search of remotely stored files that are virtually present on the network. 1. Do the Police Need a Warrant to Obtain E-mail? Imagine that A sends an e-mail to his friend B. Two police officers learn about the e-mail and believe that it may reveal a nefarious criminal conspiracy. The officers agree that they should try to obtain a copy of the e-mail to prove the conspiracy. They confront a legal question: what kind of legal process must they follow to obtain the e-mail? Does the Fourth Amendment require them to obtain a search warrant? Or can they obtain the e-mail with less process than a search warrant? The answer depends largely upon whether they apply an internal or external perspective of the Internet. Imagine that the first officer applies an internal perspective of the Internet. To him, e-mail is the cyberspace equivalent of old-fashioned postal mail. His computer announces, “You’ve got mail!” when an e-mail message arrives and shows him a closed envelope.32 When he clicks on the envelope, it opens, revealing the message. From his internal perspective, the officer is likely to conclude that the Fourth Amendment places the same restriction on government access to e-mail that it places on government access to ordinary postal mail. He will then look in a Fourth Amendment treatise for the black letter rule on accessing postal mail. That treatise will tell him that accessing a suspect’s mail ordinarily violates the suspect’s “reasonable expectation of privacy,” and that therefore the officer must first obtain a warrant.33 Because e-mail is the equiva- motivated the framing and adoption of the Fourth Amendment . . . that Amendment requires that the scope of every authorized search be particularly described.”) (internal quotations and citations omitted). 31. See generally Ronald J. Allen & Ross M. Rosenberg, The Fourth Amendment and the Limits of Theory: Local Versus General Theoretical Knowledge, 72 ST. JOHN’S L. REV. 1149 (1998) (noting that the Fourth Amendment case law has created very specific and distinct rules for different spaces). 32. A sound recording of a voice saying “You’ve got mail!” is played whenever an America Online (AOL) customer logs on to AOL and unread e-mail has been stored in the account. See America Online v. AT&T Corp., 243 F.3d 812, 815 (4th Cir. 2001) (“[I]n connection with its e-mail service, AOL advises its subscribers that they have received e-mail by displaying the words ‘You Have Mail,’ by playing a recording that announces, ‘You’ve got mail,’ and by depicting an icon of a traditional mailbox with the red flag raised.”). 33. See Ex Parte Jackson, 96 U.S. 727, 732 (1877); 2 W. LAFAVE, SEARCH & SEIZURE § 3.7(c), at 362 (3d ed. 1996).
  11. 11. 366 THE GEORGETOWN LAW JOURNAL [Vol. 91:357 lent of postal mail, the officer will conclude that the Fourth Amendment requires him to obtain a warrant before he can access the e-mail.34 Imagine that the second police office approaches the same problem from an external perspective. To him, the facts look quite different. Looking at how the Internet actually works, the second police officer sees that when A sent the e-mail to B, A was instructing his computer to send a message to his Internet Service Provider (ISP) directing the ISP to forward a text message to B’s ISP.35 To simplify matters, let’s say that A’s ISP is EarthLink, and B’s ISP is America Online (AOL). EarthLink’s computers received A’s instructions, copied the text message, and then sent out another copy in the direction of the AOL server. That e-mail crossed the Internet until it arrived at the AOL mail server, which happens to be located in Virginia.36 The next morning, when B sat at his desk and clicked on the icon to read the message from A, B was instructing his computer to send a request to the AOL server to run off a copy of the message and send it to him at his desk. From the second officer’s external perspective, obtaining the e-mail seems quite different from how it looked to the first officer. The second officer sees that he can obtain a copy of the e-mail from any one of four sources: A, who sent the e-mail; the Earth Link server located in California, which kept a copy before sending another copy to AOL; the AOL server in Virginia, which retained a copy in B’s account; or B, who received a copy when he logged on and read the e-mail. To avoid tipping off A or B, the officer will probably want to go to the system administrator at EarthLink or AOL to get a copy of the message straight from their computers. What process does the Fourth Amendment require? The second officer will reason that A sent a copy of the e-mail communication to a third party (the EarthLink computer), disclosing the communication to the third party and instructing it to send the communication to yet another third party (AOL). The officer will ask, what process does the Fourth Amendment require to obtain information that has been disclosed to a third party and is in the third party’s possession? The officer will look in a Fourth Amendment treatise and locate to the black letter rule that the Fourth Amendment permits the government to 34. Cf. United States v. Maxwell, 45 M.J. 406, 418 (C.A.A.F. 1996) (“In a sense, e-mail is like a letter. It is sent and lies sealed in the computer until the recipient opens his or her computer and retrieves the transmission. The sender enjoys a reasonable expectation that the initial transmission will not be intercepted by the police.”). 35. This process works as follows: When a user sends mail, she normally composes the message on her own computer, then sends it off to her ISP’s mail server. At this point her computer is finished with the job, but the mail server still has to deliver the message. It does this by finding the recipient’s mail server, talking to that server and delivering the message. It then sits on that second mail server until the recipient comes along to read his mail, when he retrieves it onto his own computer. Ken Lucke, Reading E-mail Headers, at http://www.stopspam.org/email/headers/headers.html (1997). 36. See Maxwell, 45 M.J. at 416 (noting that AOL e-mails “are privately stored for retrieval on AOL’s centralized and privately-owned computer bank located in Vienna, Virginia.”).
  12. 12. 2003] THE PROBLEM OF PERSPECTIVE IN INTERNET LAW 367 obtain information disclosed to a third party using a mere subpoena.37 The officer can simply subpoena the system administrator to compel him to produce the e-mails. No search warrant is required. Who is right? The first officer or the second? The answer depends on whether you approach the Internet from an internal or external perspective. From an internal perspective, the officers need a search warrant; from the external perspective, they do not.38 2. Do Search Warrants Allow Remote Network Searches? Let’s consider a second example, one that reverses the implications of the internal and external approaches. Imagine that our two police officers give up on e-mail conspiracies and instead start investigating a local business that is a front for the mob in New York. The officers learn that the mob has stored a full set of records of the mob’s illegal activities on the business’s computer network. The officers obtain a search warrant to search the New York office of the business for the computer files. Importantly, the Fourth Amendment requires the warrant to be fairly narrow; the warrant must specifically name the place that will be searched (“the business offices of the Mobfront Company, 123 Pine Street, Suite 200”) and name the evidence that will be seized (“computer files containing evidence of organized crime activity”).39 The warrant gives the officers a limited grant of authority: It allows them to search the precise location of the business for the precise evidence described, and no more.40 Imagine that when the officers execute the search, they find several computer terminals inside the business offices that are connected to the network, but they cannot find the central computer server that stores the network’s files. In fact, the network server is located hundreds or thousands of miles away, in another state, or perhaps even another country. The officers will face a question: Does 37. See Donovan v. Lone Steer, Inc., 464 U.S. 408, 414–15 (1984); United States v. Dionisio, 410 U.S. 1, 8 (1973); 2 WAYNE R. LAFAVE, SEARCH AND SEIZURE § 4.13(a), at 726 (3d ed. 1996). 38. It is possible to reconcile these two approaches, at least in part. Although the case law on this issue is sparse, the Fourth Amendment rules governing subpoenas apply even when information is protected by a “reasonable expectation of privacy.” See In re Subpoena Duces Tecum, 228 F.3d 341, 348–49 (4th Cir. 2000). As a result, even though a search warrant would be required to access certain documents if the government conducted the search directly, the government can alternatively use a subpoena to obtain the materials without a warrant. See id. This rule applies to postal mail, as well. See United States v. Barr, 605 F. Supp. 114, 119 (S.D.N.Y. 1985). However, this does not mean that the internal and external approaches yield the same result. If the sending of an e-mail to an ISP is a disclosure that eliminates a reasonable expectation of privacy (the external result), then the government could access the e-mail themselves or use a defective subpoena without violating the Fourth Amendment. 39. See U.S. CONST. amend. IV. (“[N]o Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”). 40. See Maryland v. Garrison, 480 U.S. 79, 84 (1987) (“By limiting the authorization to search to the specific areas and things for which there is probable cause to search, the requirement ensures that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit.”).
  13. 13. 368 THE GEORGETOWN LAW JOURNAL [Vol. 91:357 their search warrant allow them to search the terminals inside the business and retrieve the information stored remotely on the network? The first police officer, who prefers an internal perspective, will say “yes.” This officer will approach the terminal and see various icons indicating the presence of the network’s files. To him, the files listed are virtually present inside the terminal; he can access them from the network exactly as he would be able to access files stored on a local hard drive or floppy diskette. The first officer will look at the warrant, see that it authorizes him to search “123 Pine Street, Suite 200” for “computer files containing evidence of organized crime activity,” and will conclude that the warrant authorizes him to search the terminal for the evidence. The second police officer, who approaches the same problem from an external perspective, will disagree. He will reason that if he sits down at the terminal and starts looking through the files on the network, he will actually be instructing the terminal to send commands to the remote central server to run off copies of the files and send them back to him. Retrieving the files will not search “123 Pine Street, Suite 200,” as his warrant allows, but rather will direct a search of the physical location of the server located hundreds or even thousands of miles away. If the server is located in California, he will be searching a place in California; if the server is in Canada, he will be searching a place in Canada.41 The search warrant does not allow the officer to execute a search outside of “123 Pine Street, Suite 200,” however, much less in another state or a foreign country. Accordingly, the second officer will conclude that the search warrant does not allow him to search the terminal for the network’s remotely stored files. From an internal perspective, the search warrant authorizes the officers to search the terminal; from an external perspective, it does not. Notably, the privacy implications of the two perspectives in this second hypothetical reverse the implications of the first one. In the e-mail hypothetical, the internal perspective offers more privacy protection, whereas the opposite is true in the case of the remote network search. This should not surprise us. The internal and external perspectives offer two distinct and unrelated set of the Internet’s facts, and the legal implications of the two perspectives should vary depending on the issue. In some cases the internal perspective will offer facts that lead to greater privacy protection, but in other cases the external perspective will be more protective. B. INTERNET GOVERNANCE Internet governance has received a great deal of attention among scholarly commentators.42 We can define Internet governance as the study of how law, 41. See Patricia L. Bellia, Chasing Bits Across Borders, 2001 U. CHI. LEGAL F. 35, 42 (considering the Fourth Amendment implications of cross-border searches). 42. See, e.g., Henry H. Perritt, Jr., Towards a Hybrid Regulatory Scheme for the Internet, 2001 U. CHI. LEGAL F. 215; Lawrence Lessig, Open Code and Open Societies: Values of Internet Governance,
  14. 14. 2003] THE PROBLEM OF PERSPECTIVE IN INTERNET LAW 369 legal institutions, and computer code collectively regulate and define the virtual world of cyberspace.43 Here, as with the Fourth Amendment, approaches to Internet governance are influenced heavily by the competing views of the internal and external approaches. This section explains how the internalexternal critique explains competing views of Internet governance. It begins with Professor Lawrence Lessig’s insight that “code is law”; turns next to a 1996 federal court decision, Cyber Promotions v. America Online44; and concludes with a broader discussion of how the internal and external perspectives shed light on theories of Internet governance. 1. Code is Law—Or Is It? Professor Lawrence Lessig is today’s most influential cyberlaw theorist. Lessig has popularized the idea that “code is law.”45 According to this idea, the hardware and software code that make up the Internet regulates the virtual world of cyberspace much like law regulates the physical world.46 The nature and values of cyberspace hinge on the coding decisions of programmers, which means that the decisions made by big companies like America Online and Microsoft have the force of law in cyberspace. Lessig argues that because code is law, we should apply the legal constructs to code in cyberspace that we normally apply to law in the physical world. For lawyers, this approach is striking primarily because it assigns the U.S. Constitution an essential role in regulating the Internet’s computer hardware and software.47 If companies like AOL and Microsoft construct “the functional equivalent of law”48 in cyberspace, Lessig argues, their decisions should be just as subject to constitutional scrutiny as would law in the physical world. To do otherwise would make cyberspace a remarkable anomaly, a space totally unregulated by the Constitution.49 Lessig urges us to rethink the state action doctrine to 74 CHI.-KENT. L. REV. 1405 (1999). The notion of “Internet governance” as a distinct field within Internet law was recently acknowledged by the Duke Law Journal, which held its thirtieth annual administrative law issue on “Governance of the Internet.” See James Boyle, A Nondelegation Doctrine for the Digital Age?, 50 DUKE L.J. 5 (2000) (introducing the issue). 43. See generally Boyle, supra note 42. 44. 948 F. Supp. 436 (E.D. Pa. 1996). 45. See LESSIG, supra note 20, at 6. Lessig credits this idea largely to William Mitchell as well as to others. See id. at 6 n.7 (citing WILLIAM J. MITCHELL, CITY OF BITS: SPACE, PLACE, AND THE INFOBAHN 111 (1995)). 46. See id. at 6. 47. See id. (“In speaking of a constitution in cyberspace, we are simply asking: What values are protected there? What values will we build [by code] into the space to encourage certain forms of life?”). 48. Id. at 217. 49. See id. As Lessig puts it: “If code functions as law, then we are creating the most significant new jurisdiction since the Louisiana Purchase, yet were are doing it just outside the Constitution’s review.” See id.
  15. 15. 370 THE GEORGETOWN LAW JOURNAL [Vol. 91:357 accomplish these goals.50 According to Lessig, we should recognize that the codemakers such as Microsoft and AOL act as virtual governments that exercise real control over the virtual world of cyberspace and consider subjecting their decisions to constitutional scrutiny.51 Viewing Lessig’s theories through the lens of the internal-external critique proves quite revealing, I think. The phrase “code is law” expresses a relationship between the internal and external perspectives. “Code is law” means that code from the external perspective has the force of law from the internal perspective. The programmer’s code defines the architecture of the virtual world that a user encounters. Because external code is internal law, we should regulate external code from an internal perspective. This internal focus also seems to provide the key to understanding Lessig’s theory of applying the Constitution in cyberspace. Lessig is more eager than most to apply the Constitution to the Internet from an internal perspective.52 He urges us to apply the Constitution to the world the Internet user perceives, rather than to the bricks-and-mortar world that exists off-line. State action offers a clear example. To answer who is a state actor, Lessig suggests, we should look at the world from an Internet user’s perspective and determine who has powers that resemble those of the government.53 We can translate the values of the Constitution into cyberspace only by recognizing the Internet user’s world as the functional equivalent of the physical world and trying to match the rules of realspace to the rules of cyberspace. Lessig has developed a complex explanation for why we should endorse this internal perspective. According to Lessig, fidelity to the Constitution requires us to “translate”54 our “constitutional values”55 from real space to cyberspace to address “latent ambiguities”56 in our constitutional structure. I am not a constitutional theorist, and I will leave it to others to critique this approach.57 However, 50. Lessig suggests the need for “a revolution in American constitutional law for the Court . . . to move beyond the limits of state action” to be “more faithful” to our constitutional traditions. Id. at 217–18. 51. See id. at 217. 52. Given the richness and complexity of Professor Lessig’s works, viewing his scholarship through this single lens necessarily ignores a great deal of subtlety. As a first-order approximation, however, I think it captures some of the unique flavor of Professor Lessig’s ideas. 53. LESSIG, supra note 20, at 217–18. Thus Professor Lessig refers frequently to the importance of “constitutional values.” See, e.g., Lawrence Lessig, What Things Regulate Speech: CDA 2.0 v. Filtering, 38 JURIMETRICS J. 629, 664 (1998). Lessig does not define what “constitutional values” are, but in his work they appear to be values that from an internal perspective would be something that the Constitution may address if they occurred in the physical world. 54. LESSIG, supra note 20, at 114 (referring to the strategy of “finding a current reading of the original Constitution that preserves its original meaning in the present context.”). 55. Lessig, supra note 53, at 664. 56. LESSIG, supra note 20, at 217 (defining “latent ambiguity” as a question that the Framers did not answer because it was not raised in their day). 57. Admittedly, I have expressed some skepticism of it before. See Orin S. Kerr, The Fourth Amendment in Cyberspace: Can Encryption Create a “Reasonable Expectation of Privacy”?, 33 CONN. L. REV 503, 525 n.108 (2001).
  16. 16. 2003] THE PROBLEM OF PERSPECTIVE IN INTERNET LAW 371 for our purposes the key is to note that Lessig’s theory compares to more traditional approaches primarily in its willingness to adopt a more internal approach to constitutional law, in which the user’s perspective matters.58 2. Cyber Promotions v. America Online The importance of internal and external approaches to the area of Internet governance is not merely a question of theory. The internal and external perspectives have clashed in one case that squarely addressed the application of the state action doctrine to the Internet: Cyber Promotions v. America Online.59 The Cyber Promotions case arose from a dispute over “spam,” unsolicited commercial e-mail. Cyber Promotions was a spamming company that violated AOL’s antispam policy; in response, AOL banned Cyber Promotions from its network. Cyber Promotions filed suit in federal court, alleging that AOL’s ban violated Cyber Promotions’s First Amendment rights to speak to AOL’s subscribers. To succeed on this claim, Cyber Promotions first had to establish that AOL was a state actor governed by the First Amendment, rather than merely a private entity. Cyber Promotions tried to do this by offering an internal perspective. To an Internet user, its lawyers argued, decisions by America Online “ha[ve] the character of state action.”60 To users, AOL acts like the government. It provides a virtual town square where “public discourse, conversations and commercial transactions can and do take place,”61 just like in a real town square. Because AOL took on this governmental role from the perspective of a user, AOL should be considered a state actor.62 The district court rejected this argument by applying an external perspective. First, the court framed its analysis by describing the Internet as “a global Web of linked networks and computers . . . owned and managed by private entities and persons.”63 Note the external description, focusing on the physical hardware of the computers attached to the Internet rather than the virtual world it can help create. Within this external construct, AOL was simply a Virginia company that provided Internet access to its customers and was not owned in 58. Professor Tribe has suggested an internal approach to the Constitution (and in particular the Fourth Amendment) in his essay on the Constitution in Cyberspace. See LAWRENCE H. TRIBE, THE CONSTITUTION IN CYBERSPACE, at http://www.eff.org/Legal/cyber_constitution.paper (1991). “Axiom 5” of Tribe’s essay urges the courts to approach the Constitution in cyberspace in a technology-neutral way. As he puts it, “Constitutional Principles Should Not *Vary With Accidents of Technology*.” Id. According to Tribe, courts should treat the Internet’s new means of communicating just like their physical equivalents. This appears to reflect an internal approach, or at least a Constitution that follows an internal standard: Tribe suggests that courts focus on the role that new technologies play in the experience of their users, whereas physical reality should be seen as mere “accidents of technology.” Id. 59. 948 F. Supp. 436 (E.D. Pa. 1996). 60. Id. at 441. 61. Id. at 442. 62. Id. 63. Id. at 441.
  17. 17. 372 THE GEORGETOWN LAW JOURNAL [Vol. 91:357 whole or in part by the government.64 The court instructed that “AOL is merely one of many private online companies which allow its members access to the Internet through its e-mail system where they can exchange information with the general public. The State has absolutely no interest in, and does not regulate, this exchange of information . . . around the world.” 65 Accordingly, AOL was not a state actor, and its decision to ban a spammer could not violate the First Amendment. That an Internet user may think of AOL as the functional equivalent of government in cyberspace was irrelevant because the company itself was plainly a private entity and not a state actor. What mattered was the external question of corporate identity, not the internal question of users’ perceptions. 3. Internet Governance from an External Perspective That questions of Internet governance divide sharply along internal and external lines should not surprise us. The very concept of “Internet governance” is an internal construct. It seeks to analogize the creation of rules in the physical world (traditional questions of governance) to the creation of rules in cyberspace (Internet governance). Whether this enterprise makes any sense depends upon whether one approaches the Internet internally or externally. From an external perspective, the analogy appears nonsensical. AOL governs cyberspace from the perspective of its subscribers only in the way that the referee of a high school football game governs the game from the perspective of its players, or Steven Spielberg governs his movies from the perspective of their viewers. AOL calls the shots, but that does not make it the government. The power to control a user’s experience is an important power, but its importance does not transform it into a governmental power. To an external viewer, viewing AOL as a state actor in cyberspace makes as much sense as calling the referee a state actor in “footballspace,” or Steven Spielberg a state actor in “moviespace.” The problem derives from the maxim “code is law.” Saying that the power of code is akin to the power of law is simply too loose a use of the word “law” to be helpful. If code is law to an Internet user, then a sports referee’s calls are law to an athlete, and Steven Spielberg’s decisions about how to shoot a movie are law to a movie viewer. The internal approach simply misses the critical difference between reality and virtual reality.66 Conversely, from an internal perspective the external approach fails to trans64. See id. 65. Id. at 442. 66. Perhaps the most remarkable example of this within Lessig’s work is his extensive discussion of a “rape in cyberspace.” See LESSIG, supra note 20, at 74–78. Lessig recounts how a person who controlled a character named “Bungle” in an online game called “LamdaMOO” was able to manipulate the game such that the character “raped” several other characters in the game. See id. at 74–75. Although Lessig recognizes that no real woman was raped, he insists that “all will see a link between rape and what happened to these women here. Bungle used his power over these women for his own (and against their) sexual desire; he sexualized his violence and denied them even the dignity of registering their protest.” Id. at 75. While it is possible to envision a “link,” the link must be highly
  18. 18. 2003] THE PROBLEM OF PERSPECTIVE IN INTERNET LAW 373 late the values of the real world into cyberspace.67 The internal viewer will tend to see the external observer as rigid, myopic, and lacking in imagination because the external perspective does not recognize the importance of the internal world.68 C. COMPUTER CRIME Internal and external approaches have also influenced the law of computer crime.69 Although some computer crimes present new forms of criminality, many are simply traditional, preexisting crimes committed using the Internet. To use the cliche, they are “old wine in new bottles.”70 Examples include online ´ frauds,71 cyberstalking,72 Internet gambling,73 and offenses involving the online distribution of child pornography.74 Prosecutions of these crimes require the courts to apply preexisting criminal laws to the Internet, resulting in a series of clashes between the internal and external perspectives. This section contrasts two recent federal court of appeals decisions in which defendants tried and failed to overturn their convictions by invoking differing perspectives. In the first case, the defendant offered an internal view, but the court adopted an external view; in the second, the defendant offered an external view, but the court endorsed an internal view. The section concludes by analyzing a rare case in which the internal and external perspectives produced similar (although not identical) results: the Supreme Court’s First Amendment decision striking down the Communications Decency Act in Reno v. American Civil Liberties Union.75 1. United States v. Kammersell The Tenth Circuit’s decision in United States v. Kammersell76 provides a dramatic example of the importance of choosing between an internal and external perspective of the Internet. In this case, nineteen-year-old Matthew tenuous at best: It is the link between a brutal rape and a fictional story of a brutal rape. Surely the difference is more striking than any similarity. 67. See id. at 217–18. See also Paul Schiff Berman, Cyberspace and the State Action Debate: The Cultural Value of Applying Constitutional Norms to “Private” Regulation, 71 U. COLO. L. REV. 1263, 1270 (2000) (“[W]hether America Online is public or private, there are certain values that we hold as a community, values that America Online may be threatening.”). 68. See LESSIG, supra note 20, at 217–18. 69. See generally Scott Charney & Kent Alexander, Computer Crime, 45 EMORY L. J. 931 (1996). 70. See United States v. LaMacchia, 871 F. Supp. 535, 536 (D. Mass. 1994); see Michael Edmund O’Neill, Old Crimes in New Bottles: Sanctioning Cybercrime, 9 GEO. MASON L. REV. 237, 237 (2001). 71. See, e.g., Gretchen Morgenson, S.E.C. Says Teenager Had After-School Hobby: Online Stock Fraud, N.Y. TIMES, Sept. 21, 2000, at A1. 72. See U.S. DEP’T OF JUSTICE, CYBERSTALKING: A NEW CHALLENGE FOR LAW ENFORCEMENT AND INDUSTRY (1999), http://www.usdoj.gov/criminal/cybercrime/cyberstalking.htm. 73. See, e.g., United States v. Cohen, 260 F.3d 68, 70–71 (2d Cir. 2001). 74. See generally PHILIP JENKINS, BEYOND TOLERANCE: CHILD PORNOGRAPHY ON THE INTERNET (2001). 75. 521 U.S. 844 (1997). 76. 196 F.3d 1137 (10th Cir. 1999).
  19. 19. 374 THE GEORGETOWN LAW JOURNAL [Vol. 91:357 Kammersell used America Online’s “instant message” service to send a bomb threat over the Internet from Riverdale, Utah (a suburb of Ogden, Utah) to his girlfriend’s computer at work in downtown Ogden, a few miles away.77 The government prosecuted Kammersell under 18 U.S.C. § 875(c), which makes it a federal felony to send an interstate communication “containing . . . any threat to injure the person of another.”78 The question facing the Court was whether Kammersell’s instant message constituted an “interstate” threat. Kammersell argued that it did not. He offered an internal account of his conduct. From his perspective, he was located in Utah and had sent the threat to his girlfriend in Utah. His girlfriend was just a few miles away, in the same state. From Kammersell’s perspective, there was nothing interstate about his threat, and the absence of a federal interstate nexus required the court to vacate his conviction.79 The government countered by approaching Kammersell’s threat from an external perspective. Because America Online’s servers are located in Virginia, the government noted, every AOL instant message must be routed from its point of origin to AOL’s servers in Virginia, and then on to its destination. Unbeknownst to Kammersell, his instant message had traveled from Utah to Virginia, and then back to Utah. Kammersell’s threat was in fact an “interstate” threat, as it had traveled most of the way across the country twice in the course of being delivered.80 Did Matthew Kammersell send an interstate threat? From an internal perspective, no; from an external perspective, yes. The Tenth Circuit adopted the government’s external perspective and affirmed the conviction.81 2. United States v. Thomas A 1996 obscenity case decided by the Sixth Circuit, United States v. Thomas,82 provides a mirror image of Kammersell. As in Kammersell, the defendant’s 77. See id. at 1138. Instant messages are private communications between two Internet accounts in use that are delivered immediately to the other. See America Online v. AT&T Corp., 64 F. Supp. 2d 549, 566 (E.D. Va. 1999), aff’d in part, vacated in part, 243 F.3d 812 (4th Cir. 2001). 78. 18 U.S.C. § 875(c) (2000) states in full: “Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.” The statute has been applied fairly often to cases involving Internet threats. See, e.g., United States v. Morales, 272 F.3d 284, 285 (5th Cir. 2001); United States v. Alkhabaz, 104 F.3d 1492, 1493 (6th Cir. 1997). 79. See Kammersell, 196 F.3d at 1139. Notably, this is not an entirely internal account; it considers the location of Kammersell and his girlfriend in the physical world. However, the account is internal from the standpoint of whether his communication traveled across state lines. 80. See id. 81. See id. at 1140. 82. 74 F.3d 701 (6th Cir. 1996). The Thomas case received significant attention at the time primarily for its interesting First Amendment implications. See generally Jennifer K. Michael, Note, Where’s “The Nastiest Place on Earth?” From Roth to Cyberspace, or, Whose Community Is It, Anyway? The United States Court of Appeals for the Sixth Circuit Addresses Local Community Standards in United States v. Thomas, 30 CREIGHTON L. REV. 1405 (1997); Stephen G. Kabalka, Case Note, Application of
  20. 20. 2003] THE PROBLEM OF PERSPECTIVE IN INTERNET LAW 375 liability in Thomas hinged on whether the facts were approached internally or externally. Unlike Kammersell, however, the defendant in Thomas asked the court to apply an external perspective, and the government advocated an internal perspective. Robert and Carleen Thomas operated a computer bulletin board service from their home in California starting in 1991.83 The bulletin board billed itself as “The Nastiest Place on Earth” and provided its paying customers with hard-core pornography.84 Officials in Memphis, Tennessee began an investigation into whether the Thomases had violated federal obscenity laws. Eventually they set up an operation in which an undercover postal inspector in Memphis opened an account and used a computer to receive digital photographs formatted as GIF files from the Thomases’ server.85 The U.S. Attorney in Memphis charged the Thomases with almost a dozen violations of federal law, among them violations of 18 U.S.C. § 1465.86 This statute makes it a federal crime to use a means of interstate commerce to transport an obscene “book, pamphlet, picture, film . . . [or] image” in interstate commerce.87 The government’s theory was that the Thomases had used the Internet (a means of interstate commerce) to transport the GIF files (the images) in interstate commerce (from the server in California to the postal inspector in Tennessee). The jury convicted the Thomases on most of the counts, including six counts of violating 18 U.S.C. § 1465.88 On appeal, the Thomases argued that they had not violated the statute. They offered an external account of their conduct. They had not sent “images” to the undercover officer in Memphis, they reasoned, but merely had sent a “string of 0’s and 1’s”89 from one computer to another. The fact that the “string of 0’s and 1’s” was a GIF file that could be translated by the postal inspector’s computer into a visual image did not mean that the 0s and 1s were an “image” covered by Existing Obscenity Laws to Computer Transmissions United States v. Thomas, 74 F.3d 701 (6th Cir. 1996), 64 TENN. L. REV. 215 (1996). 83. Thomas, 74 F.3d at 704. 84. Id. at 705. 85. Id. GIF stands for “Graphic Interchange Format,” and is a popular file format for electronic files that can be read by a computer as a picture. See United States v. Lacy, 119 F.3d 742, 745 n.2 (9th Cir. 1997). 86. 18 U.S.C. § 1465 (2000). 87. The statute provides: Whoever knowingly transports or travels in, or uses a facility or means of, interstate or foreign commerce or an interactive computer service . . . in or affecting such commerce for the purpose of sale or distribution of any obscene, lewd, lascivious, or filthy book, pamphlet, picture, film, paper, letter, writing, print, silhouette, drawing, figure, image, cast, phonograph recording, electrical transcription or other article capable of producing sound or any other matter of indecent or immoral character, shall be fined under this title or imprisoned not more than five years, or both. Id. 88. Thomas, 74 F.3d at 706. 89. Id. at 706–07.
  21. 21. 376 THE GEORGETOWN LAW JOURNAL [Vol. 91:357 the federal obscenity law.90 The Sixth Circuit rejected this external argument in favor of an internal description of the Thomases’ conduct. According to the court, “the means by which the GIF files were transferred” did not matter so long as “the transmissions began with computer-generated images in California and ended with the same computer-generated images in Tennessee.”91 Because the data sent by the Thomases appeared as an image when “viewed on a computer screen”92 by a computer user, it was an “image” according to federal obscenity law. From the court’s internal perspective, technical details such as “[t]he manner in which the images moved”93 seemed irrelevant. The court affirmed the conviction.94 3. Internal and External Aligned: Reno v. American Civil Liberties Union In both Kammersell and Thomas, the courts’ outcomes depended on their perspectives. The internal and external approaches do not always produce opposing results, however. An interesting case in which the two perspectives led to similar outcomes was the Supreme Court’s 1997 decision in Reno v. American Civil Liberties Union.95 Reno raised a First Amendment challenge to the 1996 Communications Decency Act (CDA), a law that Congress enacted to protect minors from harmful material on the Internet.96 The challenge focused on two provisions: one provision that prohibited the knowing transmission “by means of a telecommunications device”97 of obscene or indecent messages to any recipient who is a minor98 and another that prohibited using an “interactive computer service”99 to knowingly send or display patently offensive messages in a manner that is available to a minor.100 90. 91. 92. 93. 94. 95. 96. 97. 98. Id. at 707. Id. Id. Id. Id. at 706. 521 U.S. 844 (1997). 47 U.S.C. § 223 (2000). 47 U.S.C. § 223(a). Id. The relevant text of this provision stated: Whoever . . . by means of a telecommunications device knowingly . . . makes, creates, or solicits, and initiates the transmission of, any comment, request, suggestion, proposal, image, or other communication which is obscene or indecent, knowing that the recipient of the communication is under 18 years of age, regardless of whether the maker of such communication placed the call or initiated the communication . . . shall be fined under title 18, United States Code, or imprisoned not more than two years, or both. Id. 99. 47 U.S.C. § 223(d). 100. Id. The relevant text of this provision stated: Whoever . . . knowingly uses an interactive computer service to send to a specific person or persons under 18 years of age, or uses any interactive computer service to display in a manner available to a person under 18 years of age, any comment, request, suggestion, proposal,
  22. 22. 2003] THE PROBLEM OF PERSPECTIVE IN INTERNET LAW 377 The majority opinion by Justice Stevens held that both provisions violated the First Amendment.101 The Court applied an external perspective. To the majority, the Internet was a worldwide network of computers that allowed its users to access resources via host computers.102 Although the Court recognized that an internal perspective exists—at one point the opinion notes that “from the readers’ viewpoint,” the World Wide Web resembles “a vast library . . . and a sprawling mall”103—the majority viewed the CDA as a speech restriction on the use of a specific network technology akin to a restriction on television or radio.104 From this external perspective, the CDA could not survive constitutional scrutiny because less restrictive technological means existed by which Congress could have achieved the CDA’s legitimate goals without burdening speech.105 Justice O’Connor, joined by Chief Justice Rehnquist, authored a partial concurrence and partial dissent.106 Justice O’Connor approached the CDA from an internal perspective. According to Justice O’Connor, the CDA was “little more than an attempt by Congress to create ‘adult zones’ on the Internet.”107 Citing Professor Lessig, Justice O’Connor argued that the CDA was an attempt to regulate cyberspace much like a zoning law attempts to regulate the physical world.108 Its constitutionality depended on whether the CDA’s attempt to zone chat rooms and others areas of cyberspace satisfied the First Amendment standard that the Court had developed to test efforts to zone the physical world.109 Applying this standard to an internal picture of the Internet, Justice O’Connor agreed with the external majority view that parts of the CDA did violate the First Amendment, but would have held that other parts survived First Amendment scrutiny.110 Because the CDA raised similar problems from an image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs, regardless of whether the user of such service placed the call or initiated the communication; or knowingly permits any telecommunications facility under such person’s control to be used for an activity prohibited by paragraph with the intent that it be used for such activity, shall be fined under title 18, United States Code, or imprisoned not more than two years, or both. Id. 101. See Reno v. Am. Civil Liberties Union, 521 U.S. 844, 864–85 (1997). 102. See id. at 849–51. 103. Id. at 853. 104. See id. at 868–70. 105. See id. at 879. 106. See id. at 886 (O’Connor, J., concurring in the judgment in part and dissenting in part). 107. Id. (O’Connor, J., concurring in the judgment in part and dissenting in part). 108. See id. at 889 (O’Connor, J., concurring in the judgment in part and dissenting in part) (citing Lawrence Lessig, Reading the Constitution in Cyberspace, 45 EMORY L.J. 869, 886 (1996)). 109. See id. at 886 (O’Connor, J., concurring in the judgment in part and dissenting in part) (contending that “portions of the CDA are unconstitutional because they stray from the blueprint our prior cases have developed for constructing a ‘zoning law’ that passes constitutional muster.”). 110. See id. at 897 (O’Connor, J., concurring in the judgment in part and dissenting in part). Justice O’Connor concluded that
  23. 23. 378 THE GEORGETOWN LAW JOURNAL [Vol. 91:357 internal perspective that it raised from the majority’s external perspective, Justice O’Connor reached a similar (although not identical) result as the external majority. D. COPYRIGHT LAW AND THE INTERNET Copyright law provides a final example of how internal and external perspectives shape Internet law. Copyright law grants authors rights to control the reproduction of their original works that are fixed in a tangible medium of expression.111 How copyright laws should apply to the Internet has proven highly controversial.112 Here, too, competing internal and external viewpoints influence the shape of the law. We can see how perspectives affect copyright law on the Internet by studying the recent lawsuit against the Internet service MP3.com. In January 2000, MP3.com began offering Internet users a service that allowed them to access their compact disc (CD) collections from anywhere in the world via the Internet.113 To enjoy the service, users needed to register and establish that they owned a particular collection of CDs. A user could do this in two ways: first “by inserting his copy of the commercial CD into his computer CD-Rom drive for a few seconds (the ‘Beam-it Service’),”114 or second by “purchas[ing] the CD from one of defendant’s cooperating online retailers (the ‘Instant Listening Service’).”115 Registered users could then log on to mymp3.com and request specific songs, which MP3.com would provide in the form of compressed the constitutionality of the CDA as a zoning law hinges on the extent to which it substantially interferes with the First Amendment rights of adults. Because the rights of adults are infringed only by the ‘display’ provision and by the ‘indecency transmission’ and ‘specific person’ provisions as applied to communications involving more than one adult, I would invalidate the CDA only to that extent. Insofar as the ‘indecency transmission’ and ‘specific person’ provisions prohibit the use of indecent speech in communications between an adult and one or more minors, however, they can and should be sustained. Id. at 896 (O’Connor, J., concurring in the judgment in part and dissenting in part). 111. See 17 U.S.C. § 102(a) (2000) (“Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”). For a comprehensive treatment, see MELVILLE B. NIMMER AND DAVID NIMMER, NIMMER ON COPYRIGHT (1999). For an engaging treatment of the history of copyright law, see BENJAMIN KAPLAN, AN UNHURRIED VIEW OF COPYRIGHT (1967). 112. See generally LAWRENCE LESSIG, THE FUTURE OF IDEAS (2001); Jessica Litman, Revising Copyright Law for the Information Age, 75 OR. L. REV. 19 (1996); Chip Patterson, Note, Copyright Misuse and Modified Copyleft: New Solutions to the Challenges of Internet Standardization, 98 MICH. L. REV. 1351 (2000); Alfred C. Yen, A Personal Injury Law Perspective on Copyright in an Internet Age, 52 HASTINGS L.J. 929 (2001). 113. See UMG Recordings, Inc. v. MP3.com, Inc., 92 F. Supp. 2d 349, 350 (S.D.N.Y. 2000) (Rakoff, J.). 114. Id. 115. Id.
  24. 24. 2003] THE PROBLEM OF PERSPECTIVE IN INTERNET LAW 379 mp3-formatted files.116 The owners of MP3.com provided this service by buying tens of thousands of copyrighted compact discs, and then copying them onto MP3.com’s servers. Whenever a registered user would request a particular song, MP3.com’s servers would run off a copy of the song from their servers and distribute it directly to the user over the Internet.117 The five major record companies did not appreciate this arrangement and sued MP3.com for copyright infringement.118 Did the service violate copyright law? The record companies relied on an external perspective to argue that the answer was “yes.” To the record companies, MP3.com first made unauthorized copies by copying the record companies’ copyrighted discs on to MP3.com’s servers and then made and distributed additional unauthorized copies whenever a user requested a track or entire disc. From this external perspective, MP3.com had twice copied materials without authorization from the copyright holders. Accordingly, MP3.com plainly infringed upon the record companies’ copyrights. MP3.com responded to this charge with an internal perspective of the same transaction. From the perspective of an Internet user, its lawyers argued, MP3.com simply allowed legitimate owners of music to access their CD collection without physically having to carry their CDs.119 MP3.com provided a virtual storage locker that permitted users to do in cyberspace what the physical CDs permitted them to do in realspace: listen to music they had legitimately purchased. Accordingly, MP3.com argued that there was no actual infringement of the record companies’ copyrights, and that if there was infringement, it was merely a de minimis “space shift” from realspace to cyberspace permitted under the fair use doctrine.120 Did MP3.com’s service violate the copyright laws? Once again, the choice of perspective helps determine the answer. From an external perspective, probably yes; from an internal perspective, probably no. The district court adopted the external perspective and ruled in favor the record companies.121 116. MPEG-1 Audio Layer 3 (commonly known as ‘MP3’) is the most popular digital audio compression algorithm in use on the Internet, and the compression it provides makes an audio file ‘smaller’ by a factor of twelve to one without significantly reducing sound quality. MP3’s popularity is due in large part to the fact that it is a standard, non-proprietary compression algorithm freely available for use by anyone, unlike various proprietary (and copyrightsecure) competitor algorithms. Recording Indus. Ass’n of America v. Diamond Multimedia Sys. Inc., 180 F.3d 1072, 1074 (9th Cir. 1999). 117. See UMG Recordings, 92 F. Supp. 2d. at 350. 118. See id.; David Akin, Legions of Record Company Lawyers Gird for Battle with the Internet Lawyers, NAT’L POST, Jan. 26, 2000, at C9. 119. See UMG Recordings, 92 F. Supp. 2d. at 350 (“[The] defendant seeks to portray its service as the ‘functional equivalent’ of storing its subscribers’ CDs”). 120. See id. at 351; 17 U.S.C. § 117 (2000). 121. See UMG Recordings, 92 F. Supp. 2d at 350 (“[A]lthough defendant seeks to portray its service as the ‘functional equivalent’ of storing its subscribers’ CDs, in actuality defendant is re-playing for the
  25. 25. 380 THE GEORGETOWN LAW JOURNAL [Vol. 91:357 III. THE SIGNIFICANCE OF THE PROBLEM OF PERSPECTIVE Many scholars believe that the field of Internet law offers nothing new.122 They reason that applying law to the Internet is like applying law to any new set of facts: draw analogies and then apply existing law.123 To these skeptics, the law of the Internet is merely “old wine in new bottles.”124 Although it has a fancy New Economy name—“cyberlaw”125—there is nothing really new about the law of the Internet.126 Cyberlaw’s proponents have offered only a partial response to these claims. Most prominently, Professor Lessig has defended the study of cyberlaw on the ground that it can shed light on law beyond cyberspace.127 Studying cyberlaw reveals how law interacts with other regulators of human conduct, such as architecture and social norms.128 This may be true, but it largely fails to address the skeptics’ criticism. If anything, Professor Lessig’s defense may fuel the critics’ concerns: By defending cyberlaw based on its similarities to the rest of law, rather than its differences, the argument implicitly concedes that nothing new happens when we apply law to the Internet.129 subscribers converted versions of the recordings it copied, without authorization, from plaintiffs’ copyrighted CDs.”) From the court’s external perspective, MP3.com’s internal approach seemed “little more than a sham.” UMG Recordings, Inc., v. MP3.com, 56 U.S.P.Q.2d 1376, 1377 (S.D.N.Y. 2000). The court added: Some of the evidence in this case strongly suggests that some companies operating in the area of the Internet may have a misconception that, because their technology is somewhat novel, they are somehow immune from the ordinary applications of laws of the United States, including copyright law. They need to understand that the law’s domain knows no such limits. Id. at 1379. 122. See, e.g., Frank H. Easterbrook, Cyberspace and the Law of the Horse, 1996 U. CHI. LEGAL F. 207, 208 (criticizing the field of Internet law as merely being the “law of the horse,” a collection of unrelated legal issues that happen to involve a technology); Christopher M. Kelly, The Cyberspace Separatism Fallacy, 34 TEX. INT’L L. J. 413 passim (1999) (same); Joseph H. Sommer, Against Cyberlaw, 15 BERKELEY TECH. L. J. 1145, 1147 (2000) (arguing that “‘cyberlaw’ and ‘the law of the Internet’ are not useful concepts,” and that cyberlaw is “nonexistent.”). 123. See Sommer, supra note 122, at 1148 (arguing that applying law to the Internet raises the same issues as applying law to other sets of facts). 124. See United States v. LaMacchia, 871 F. Supp. 535, 536 (D. Mass. 1994). 125. Lessig, supra note 4, at 501. 126. See id. (reviewing the debate over intellectual property law in cyberspace and concluding that “there is nothing new here. Cyberspace is another battleground for an old war.”). 127. See Lawrence Lessig, supra note 4, at 502 (arguing that cyberlaw can teach “the limits on law as a regulator and about the techniques for escaping those limits”). Other cyberlaw defenders have suggested that cyberlaw’s identity derives from the way that its new facts may require amending preexisting doctrines. See, e.g., I. Trotter Hardy, The Proper Legal Regime for “Cyberspace”, 55 U. PITT. L. REV. 993, 1053–54 (1994) (contending that the Internet raises several new questions for the legal system); Paul Schwartz, Privacy and Democracy in Cyberspace, 52 VAND. L. REV. 1609, 1612 (1999) (arguing that the Internet’s facilitation of widespread information-sharing should prompt a federal law on fair information practices). 128. See Lessig, supra note 4, at 503–10. 129. As cyberlaw critic Joseph Sommer has recognized: Much of the best work [on cyberlaw] is not really ‘about’ cyberlaw at all. Instead, it applies existing legal doctrine or political theory to a new arena . . . . In applying our old law to
  26. 26. 2003] THE PROBLEM OF PERSPECTIVE IN INTERNET LAW 381 The problem of perspective suggests that the defenders of cyberlaw are right, although perhaps not for the reasons they have offered. Internet law does offer something new—not so much in how we approach the law, but rather in the way that we approach the facts. Modeling the Internet’s facts turns out to be less simple than the skeptics suggest, as it requires a choice between external and internal constructions of those facts, between physical reality and virtual reality. Even accepting the skeptic’s view that Internet law is simply a matter of applying law to the facts, the Internet’s facts hinge on whether we approach the Internet internally or externally. This is not just a question of theory. Courts already choose perspectives when they apply law to the Internet. They just don’t realize it. What the courts may see as a minor skirmish in the “battle of analogies”130 is really a broader problem throughout Internet law. In areas ranging from criminal law to state action to copyright infringement, the clash between internal and external perspectives forces the courts to pick a perspective to reach a legal outcome. The question is not whether courts should choose a perspective, for already they do, and perhaps must. The real question, I think, is how courts should resolve the choice of perspective once they recognize it. I think we need a way of thinking about how to choose whether to apply an internal or external perspective in a given case. In some ways, this presents a new wrinkle to an old problem. Although lawyers often think of “the facts” as distinct from “the law,” our way of arriving at the facts can present important legal questions. The law of evidence provides a helpful example. The field of evidence law presents an elaborate set of legal rules designed to govern how decisionmakers arrive at the facts.131 Evidence law recognizes that law and facts can be intertwined; the legal system does not recognize a fact as a fact unless the law allows it to be recognized. The problem of perspective calls for a similar recognition. It requires us to stop and question how we arrive at the facts of the Internet before we apply law to it. Moreover, I think its resolution can harness principles that resemble those underlying evidence law. Evidence law erects a screen to regulate what evidence a fact-finder can use to help build an accurate and reliable picture of the facts.132 Similarly, we can develop a legal framework to resolve the problem of cyberspace, we see matters afresh. To risk a metaphor from another technology, the Internet can be an excellent lens for seeing other things. It is not, however, a particularly useful focal plane of legal analysis. Sommer, supra note 122, at 1149. 130. Mark S. Kende, The Supreme Court’s Approach to the First Amendment in Cyberspace: Free Speech as Technology’s Hand-Maiden, 14 CONST. COMMENT. 465, 465 (1997). 131. See ERIC D. GREEN & CHARLES R. NESSON, PROBLEMS, CASES AND MATERIALS ON EVIDENCE 25 (2d ed. 1994) (“The function of the law of evidence is to specify . . . what types of information may be considered by the triers of fact in our law courts so that they may ascertain facts of importance to the determination of the dispute before the court[.]”). 132. See id.
  27. 27. 382 THE GEORGETOWN LAW JOURNAL [Vol. 91:357 perspective in concrete cases to help produce an accurate and reliable translation of the facts from the physical world to the Internet. While this may sound like a call for a grand theory of everything, in many ways the task is a very narrow one. The problem of perspective asks only how we model the facts. As I suggested earlier,133 the problem of perspective coexists peacefully with broader struggles within cyberlaw that have occupied both cyberlaw proponents and skeptics. For example, we need not delve into whether or how the Internet should transform individual legal doctrines.134 Perhaps the Internet should trigger major changes in First Amendment law, or copyright law, or the state action doctrine. Perhaps it should not.135 The problem of perspective focuses on a much more humble and practical problem: modeling the facts so we can apply the law even as it currently exists to the facts of the Internet. Regardless of what the law is or should become, the problem of perspective remains. This Part will explore the importance of the problem of perspective by situating it within a broader set of theoretical premises in law, the social sciences, and in theories of the Internet. My goal is to show how the problem of perspective shares certain common themes with past technologies and scholarship, but also presents a significant new twist with important new practical implications. I will begin with technology, and show how the problem of perspective reflects the universalization of themes that surfaced in very limited form with prior technologies such as the telephone. I will next turn to the social sciences, and show how the internal-external critique complements and extends analogous theories of systems advanced by social scientists and legal scholars such as H.L.A. Hart. I will conclude by showing how the problem of perspective extends beyond past writings on the role of metaphor in Internet law. A. PRELUDES TO THE PROBLEM OF PERSPECTIVE: AN EXAMPLE FROM THE TELEPHONE NETWORK Because the problem of perspective derives from the existence of a virtual reality, we should expect to encounter the problem with technologies other than the Internet that also generate forms of virtual reality. This has two important implications, depending on whether we look forward or backward in time. Looking to the future, the problem of perspective should become more important as technology continues to advance and virtual realities become more widespread and convincing. Conversely, looking back, preludes to the problem of perspective should appear in technologies that predate the Internet. The telephone network provides the clearest example of a past technology that presaged the problem of perspective. Perhaps the earliest case of competing internal and external perspectives is the famous telephone wiretapping case of 133. See supra section I.C. 134. See, e.g., Hardy, supra note 127, at 995. 135. I consider myself enough of a cyberlaw skeptic to believe that it probably should not.
  28. 28. 2003] THE PROBLEM OF PERSPECTIVE IN INTERNET LAW 383 Olmstead v. United States,136 decided in 1928. In Olmstead, government agents wiretapped the telephone lines of a former police officer who operated a massive bootlegging operation in violation of the Prohibition laws.137 The agents tapped the phone lines from a city street without entering onto any private property. At trial and then on appeal, Olmstead argued that the wiretapping violated his Fourth Amendment rights. Writing for a 5-4 majority, Chief Justice Taft rejected Olmstead’s argument by applying what amounted to an external perspective of the telephone network. To Taft, the telephone network consisted of electrical lines that permitted its users to send communications out into the world.138 By using a telephone, Taft reasoned, Olmstead and his co-conspirators had opted to send their communications out from the protected spaces of their houses and into the unprotected space of the public city street: The reasonable view is that one who installs in his house a telephone instrument with connecting wires intends to project his voice to those quite outside, and that the wires beyond his house, and messages while passing over them, are not within the protection of the Fourth Amendment. Here those who intercepted the projected voices were not in the house of either party to the conversation.139 The relevant question from Taft’s external perspective was how the network worked, where the communications traveled, and where the agents were when they intercepted the communications. Because the telephone network worked by carrying the communications out into public spaces, using the phone was the functional equivalent of shouting out conversations where anyone could hear them.140 In contrast, Justice Brandeis’s dissent offered a primarily internal account of the same event. To Brandeis, it was “immaterial where the physical connection with the telephone wires leading into the defendants’ premises was made.”141 Rather, the proper question was whether from a telephone user’s perspective, the wiretapping appeared as the equivalent of a search and seizure. Brandeis 136. 277 U.S. 438 (1928). 137. Professor Murphy offers an excellent explanation of the Olmstead case and its context in his book. See generally WALTER MURPHY, WIRETAPPING ON TRIAL (1965). 138. See 277 U.S. at 465. Taft wrote: By the invention of the telephone 50 years ago, and its application for the purpose of extending communications, one can talk with another at a far distant place. The language of the [Fourth] amendment cannot be extended and expanded to include telephone wires, reaching to the whole world from the defendant’s house or office. The intervening wires are not part of his house or office, any more than are the highways along which they are stretched. Id. 139. Id. at 466. 140. See id. 141. Id. at 479 (Brandeis, J., dissenting).
  29. 29. 384 THE GEORGETOWN LAW JOURNAL [Vol. 91:357 thought that it did: “Whenever a telephone line is tapped, the privacy of the persons at both ends of the line is invaded, and all conversations between them upon any subject, and although proper, confidential, and privileged, may be overheard.”142 Although Justice Brandeis did not predict the internal perspective of cyberspace, he came close: Brandeis seemingly understood the telephone network as a technological means of creating a private space for its users: a virtual “closet”143 where secrets could be “whispered.”144 The divide between Taft and Brandeis was not so much a difference between wooden and dynamic constitutional interpretation, as some commentators suggest,145 as it was a clash of perspectives. Taft applied an external perspective of the telephone network, and Brandeis used an internal perspective. It is tempting to view Olmstead as proof that the problem of perspective is really nothing new. This is only partly correct. Olmstead reveals an early antecedent of the problem of perspective. However, it is a fairly isolated case. The books are not filled with cases applying law to “phonespace” in the same way that we find cases applying law to cyberspace. This largely reflects the telephone network’s narrow function; because the telephone merely transmits sound from one place to another, its ability to generate a virtual reality is fairly limited. As a result, telephone cases raising an internal-external dynamic remain rare,146 and considered as a whole, they do not produce a recurring problem of perspective. In contrast, the clash between the virtual and physical does seem to appear throughout Internet law. The advanced technology of the Internet has universalized a problem that remained mostly latent in the early telephone network. This may or may not make the problem of perspective truly “new.” Either way, the problem recurs often enough in Internet law that it prompts us to confront it across a wide range of substantive areas. B. BEYOND INTERNAL AND EXTERNAL PERSPECTIVES IN LAW AND THE SOCIAL SCIENCES Social scientists often use the terms “internal” and “external” to compare different ways of analyzing systems such as religion and law.147 The internal 142. Id. at 475–76 (Brandeis, J., dissenting). 143. Id. at 473 (Brandeis, J., dissenting). 144. Id. (Brandeis, J., dissenting). 145. See, e.g., Shirley M. Hufstedler, Invisible Searches for Intangible Things: Regulation of Governmental Information Gathering, 127 U. PA. L. REV. 1483, 1495 (1979). 146. Beyond Olmstead, we can also see the internal-external dynamic in Smith v. Maryland, 442 U.S. 735 (1979), discussed infra at subsection IV.C.2. 147. See, e.g., Scott Brewer, Scientific Expert Testimony and Intellectual Due Process, 107 YALE L. J. 1535, 1568–72 (1998) (summarizing scholarship on internal and external points of view); Frank Cross, Political Science and the New Legal Realism: A Case of Unfortunate Interdisciplinary Ignorance, 92 NW. U. L. REV. 251, 280–85 (1997) (same); Douglas Litowitz, Essay, Internal Versus External Perspectives on Law: Toward Mediation, 26 FLA. ST. U. L. REV. 127, 131–35 (1998) (explaining the use of internal and external perspectives in the social sciences).
  30. 30. 2003] THE PROBLEM OF PERSPECTIVE IN INTERNET LAW 385 perspective offers the view of a participant in the system, who feels bound by its rules; the external perspective adopts the view of a third-party observer who does not consider himself bound.148 Consider religion. When we discuss religion, we can talk as believers of a common faith and try to understand our religious doctrines and our God.149 Alternatively, we can also approach religion as outsiders. We can talk about our next-door neighbors and their unfamiliar religious practices and try to understand their beliefs and practices as reflections of history or culture.150 The former approach reflects an internal perspective of religion; the latter, an external perspective.151 The same construct has been applied to the legal system, most famously by H.L.A. Hart in The Concept of Law.152 According to Hart, an internal perspective of the legal system accepts that we are bound by the rule of law, and indicates faith in the power and authority of legal reasoning and doctrine.153 In contrast, those who view law from an external perspective see the rules as merely window-dressing for other forces that generate “observable regularities of behavior”154 but have little additional significance. Hart uses the example of a stop sign at an intersection. From an internal perspective, a driver sees a stop sign as the government’s order to stop his vehicle before he reaches the intersection. The stop sign has the force of law. In contrast, an external observer looks at a stop sign and merely notes that most drivers stop their vehicles when they approach the sign. The external observer may recognize that drivers perceive that they are bound by the sign, but does not find such perceptions particularly relevant.155 The problem of perspective in Internet law resembles these internal-external critiques, but it also features important differences. Like these critiques, the problem of perspective compares the viewpoint of a participant in a system to the viewpoint of a third-party observer.156 The “system” here is the Internet itself. The participant’s internal perspective adopts the user’s understanding of the virtual reality of cyberspace, and the observer’s external perspective adopts a third party’s understanding of the physical network of the Internet. However, the problem of perspective differs from past approaches in impor- 148. See Litowitz, supra note 147, at 133. 149. See Stanley Ingber, Religion or Ideology: A Needed Clarification of the Religion Clauses, 41 STAN. L. REV. 233, 282 n.305 (1989) (“Those approaching religion from the internal viewpoint—the faithful—will perceive their religious responsibilities not as an issue of individual choice and reason but of obligation imposed by a sacred or divine force.”). 150. See id. (“The external perspective may view religion as: a human creation, . . . a set of myths surrounding a confused ideological claim, . . . or an opiate sedating an oppressed people.”). 151. See id; see also Litowitz, supra note 147, at 132. 152. See H.L.A. HART, THE CONCEPT OF LAW 89–91 (2nd ed. 1994). 153. See id. at 89. 154. Id. 155. See id. at 90. 156. See Kerr, supra note 14, at 1290 n.7.
  31. 31. 386 THE GEORGETOWN LAW JOURNAL [Vol. 91:357 tant ways. The two perspectives of the Internet reflect distinct representations of reality, rather than two ways to draw lessons from the same representation. I think this is different from H.L.A Hart’s critique. When Hart compares internal and external perspectives of law, he compares two lessons that can be drawn from a single picture. A stop sign can be understood either as an order from the sovereign or as an indicator that drivers will often stop their vehicles at a particular place. Either way, however, a stop sign is still a stop sign. The only question is what significance we choose to assign to it.157 In the case of the Internet, however, the two perspectives follow two different representations of reality. The external perspective follows physical reality, and the internal perspective follows virtual reality. So, for example, visiting a website can be either sending a request to a remote server that sends back text and pictures (physical reality), or traveling to a place (virtual reality). The internal viewer conceptualizes a different world than does an external viewer. Of course, a user may be aware of both perspectives simultaneously. Technicallysavvy users who understand the technology are especially adept at following the external view along with the internal.158 But, nonetheless, the technology of the Internet generates a choice between two representations of reality: internal versus external, virtual versus real.159 A user may be aware of both realities at the same time, but will choose to accept either the virtual world or the real one when trying to understand her experiences online. C. BEYOND METAPHORS IN INTERNET LAW A second intellectual cousin of the problem of perspective can be found in recent scholarly writings on the role of metaphor in Internet law. In an important article published in 1995, Professor Michael Froomkin noted that the nature of Internet law “depend[s] critically on the legal metaphors” that are used to describe the Internet and its functions.160 Froomkin’s article analyzed the constitutionality of encryption regulations that the Clinton Administration proposed (but never enacted) in the early- to mid-1990s.161 Froomkin predicted 157. See HART, supra note 152, at 89. 158. My own limited and unscientific survey suggests that technologically-savvy Internet users tend to be more willing to embrace an external perspective, and computer novices tend to be drawn more to the internal perspective. I think the best explanation for this trend is that novices first learn how to use computers and the Internet by developing an internal understanding of the Internet. In contrast, computer experts know how the Internet works; to them, the external perspective is simply reality, unchanged by whether a user happens to understand it. 159. The Matrix provides an extreme example. In the movie, discussed supra section I.A, the connection to the network was total, and those who connected themselves to the network lost all contact or sense of external reality. 160. A. Michael Froomkin, The Metaphor is the Key: Cryptography, the Clipper Chip, and the Constitution, 143 U. PA. L. REV. 709, 718 (1995). For a similar approach, see O’Rourke, supra note 25, at 561. 161. Encryption is a process of encoding communications by scrambling them, usually followed by a process of decoding and thus descrambling them so they can be read. See generally SIMON SINGH, THE CODE BOOK (1999).

×