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Anonymity, Autonomy, and Accountability: Challenges to the First Amendment in Cyberspaces Author(s): Anne Wells Branscomb Source: The Yale Law Journal, Vol. 104, No. 7 (May, 1995), pp. 1639-1679 Published by: The Yale Law Journal Company, Inc. Stable URL: http://www.jstor.org/stable/797027 Accessed: 27/11/2010 05:06
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Anonymity, Autonomy,and Accountability: Challenges to the First Amendment in Cyberspaces
Anne Wells Branscombt
I. INTRODUCTION Principles underlyingthe First Amendmentfavor an informationagora' promotingand embodying democraticideals.2The pioneers of what is often called cyberspace,3the electronic environmentthroughwhich the computer literati engage interactively,anticipatethat this new frontier promises the opportunity for full participation in the electoral process as well as information developmentof a flourishing computer-mediated marketplace. The experiences of these computer-competentcitizens (sometimes called a "netizens"4) using the Internet,5 backbone for interconnectingcomputert Research Associate, Project on Information Resources Policy, Harvard University <firstname.lastname@example.org>; Scholar-in-Residence, AnnenbergPublic Policy Center,Universityof Pennsylvania (1994-95). The authorwishes to acknowledgethe contributions her analysis of her colleagues in three to conferences:Cyberiaand NEWJURISon the Internetand The Law of the Electronic computer-mediated Road on LEXIS Counsel Connect. 1. Agora comes from the Greek,and describesa largecentralopen squarein the city wheremerchants broughttheir wares and where citizens came to exchange ideas, a communitygatheringplace where all manner of political, economic, and social transactionswere consummated.See MERRIAMWEBSTER'S 24 COLLEGIATE DICTIONARY (10th ed. 1993). 2. See TurnerBroadcastingSys., Inc. v. FCC, 114 S. Ct. 2445, 2470 (1994) ("[A]ssuringthat the public has access to a multiplicityof informationsources is a governmental purposeof the highest order, for it promotes values central to the First Amendment."); Associated Press v. United States, 326 U.S. 1, 20 (1944) ("[T]he widest possible disseminationof informationfrom diverse and antagonisticsources is essential to the welfare of the public ...."). 3. The term "cyberspace" was introducedin 1984 by William Gibson, in his novel Neuromancer,to describethe virtualspace in which his characters interacted. WILLIAM GIBSON, NEUROMANCER 51 (1984). It has been adoptedby users of electronic networksmore broadlyto encompassthe entire experience of communicatingthroughcomputer-mediated networks,both in the futuristicview of a three-dimensional of electronic representation the real world and also to include all mannerof interactivityvia text only. 4. The term "netizens" is borrowed from the recent works of two authors. See Jim McClellan, Cyberspace:Judge Dread, OBSERVER (London),Jan. 29, 1995, at 76; HowardRheingold, "Web" Spreads into a Wildfire, DENVER POST, Jan. 13, 1995, at 22. 5. One commentatorhas describedthe Internetas follows: The Internetis best thoughtof as a suite of digitalcommunications-packet-switchingprotocols that, when adopted by many nonhomogeneousdigital networks, create the equivalent of a virtual,interactiveoverlay network.The Internetis not a physical network.It has no owner, no control point, sells no services. Thus the Internetis betterthoughtof not as a network,but as a remarkably powerful arrayof internetworking capabilities,throughwhich great numbersof
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mediatedcommunications globally,suggestthatwe now have withinour grasp a technology designedto bringtogetherlike-mindedindividuals,regardlessof where they live, work, or play, to engage in the creation of a new type of democraticcommunity:a communityunboundedby geographical,temporal, or other physical barriers. These new experimentsin democracydo not simply representa futuristic Observersof vision. On the contrary, they pervadethe electronicenvironment. online activity have recognizedinclinationsto preserveindividualand group censorship.These autonomywithout governmentalintrusionor authoritarian inclinations are fully in accord with the motivationsthat brought the early develop pioneersto the new continentto preservetheirreligiousindependence, in new frontiers, and exert self-determination their systems of governance. Many of these new experimentshave led to the developmentof user groups that look upon themselves as "virtualcommunities"entitled to deal with as Such problemsarising in the electronicenvironment they find appropriate. communitiescan be said to occupy separateand diverse cyberspaces, virtual essentially carving out domainsof their own over which they choose to exert does not aptly describe jurisdiction.Therefore,the generic term "cyberspace" these evolving communities.For the purposeof this Essay, I shall referto the varying electronic domains as cyberspaces and refer to the whole as the
The unique quality of being able to post messages to and from everyone with an electronic address without editorial control or the interventionof elected representatives promises to become one of the most powerful democratic tools ever devised. Because these cyberspaces in the Networld they remove the visual cues ignore space, time, and physical circumstances, that often inhibit or facilitate communication.Furthermore, marvels of the have erasedmanyof the prejudices arisefromthese that digitalcommunication the becomes a truemeeting culturallyspecific visual cues. Therefore, encounter of the minds, where the power of persuasionresides in what is said-that interference the FirstAmendmentwhich is protectedfrom governmental by ratherthan what is seen.
users can reach one another and a great array of sources of informationaround the world throughthe facilities of many networks. Conversationwith Lewis M. Branscomb,Professorof Science and Technology Policy, John F. Kennedy School of Government,HarvardUniversity,formerChief Scientist of IBM and Director of the John F. Kennedy School of GovernmentProjecton the NationalInformation Infrastructure (Feb. 1995). 6. According to Linda M. Harasim,"Humancommunication become the majoruse of computer has networksand has transformed them into a social space where people connect with one another.Computer networksare not merely tools wherebywe network;they have come to be experiencedas places where we network:a networld."Linda M. Harasim,Networlds:Networksas Social Space, in GLOBALNETWORKS: AND INTERNATIONAL COMPUTERS COMMUNICATION 15 (L.M. Harasim ed., 1993); see also NEAL 15, STEPHENSON, SNOW CRASH (1992) (referringto this new phenomenonas the "Metaverse").Other 18 metaphorsare equally applicable:informationsuperhighways,global infobahn,i-ways, electronic cafes, informationmarketplaces,electronic playgrounds.
In this Essay, I examine some of the ways in which culturalbehavior developing in cyberspacesis challengingthe First Amendment.In addition,I explore the mannerin which intrusionby real-worldcommunitiesmay inhibit and threatennot only the the free flow of informationin cybercommunities independence of such communities but also the value of electronic communicationas a vehicle for democraticdiscourse.Given the development thereis a very seekingto engage in self-governance, of new cybercommunities of real possibility that the nation-stateas a mediatoror determinant socially and legally acceptable behavior may be displaced by smaller "virtual communities"online that create their own behavioralnorms. If so, then the First Amendment may have little effect on the practices and procedures employed within the Networld. "Netizens,"however,do assertwhat they call a FirstAmendmentrightof access to whateverinformation they deem personallyuseful or unencumbered desirable, and deplore interventionby outsidersor even the proscriptionsof their own institutions.Although it is not accurateto describe this claim as a users' developingexpectationof FirstAmendmentright,clearlymanyInternet withoutcensorshipby outsiderscannot freely flowing channelsof information be ignored. Many of the users of the commercialinformationservices share this expectation. Thus, there is no reason why something akin to the First providersofferingservices Amendmentmay not be assertedvis-a-vis transport in autonomousdomains. In orderto examine the conflictsand questionsthat the FirstAmendment will provoke in cyberspaces, I focus upon three areas of controversy: anonymity, autonomy, and accountability.These three subjects represent interlockingand competing forces. The elevation of one of these forces has importantimplications for the other two. For example, a right of absolute whereasfull accountabilityof users anonymitymay foreclose accountability, may mean the prohibitionof anonymity.Similarly,full autonomyand control upon over the flow of information may isolate one from access to information which democraticdiscourse and a healthy exercise of the functions of selfgovernance in a democratic society depend. Therefore, it is necessary to explore how these forces interactin the context of actual cyberconflicts.In order to ensure that we are exploring these forces with a common understanding,I briefly define the forces of anonymity, autonomy, and accountabilityin the following Sections.
True anonymityin the Networldwould mean that no one could trace the sourceof an electronicmessage.The FirstAmendment preventsthe outlawing of true anonymity,althoughit only preventsgovernmentalinterferencewith as anonymousmessages. For this reason, the new cybercommunities well as
Of course. blowers or political dissidentsunderauthoritarian are also many valid reasons supporting prohibition of Yet. I can be anything I want online. SarahKiesler. anonymityis merely fun and games. the ability to remain unknownremoves many of the layers of civilized behavioras they realize that they can escape responsibilityfor negligent or abusive postings. new people.8As one student admitted. TIMES. I love being able to slip into anotherbody.7 is therefore to electroniccommunication disguise themselves. This often encourages authors for behaviorwithoutany opportunity recourseto the law for redress outrageous 7. however.. those who know me know I am neither-but that'snot the point. Disguising the sources of messages or postings relieves their for fromresponsibility any harmthatmay ensue. The point. Douglas Birch. is that I can pretendto be anythingI want to be. . or tall. Sept. Professorof Sociology at CarnegieMellon University. naturalthat individualsuse as in costumeballs in the multiuserdungeons(MUDs) thatHowardRheingold describes. For other anonymous posters.For some computerusers. anotherpersona. MUDs are multiuserdungeons THE VIRTUALCOMMUNITY 8. 1994.Addressat the Workshopon in D. Just like in the dreamfantasies of my own mind. there anonymity. They are the stuff of imaginationand invention. Usually.A.The possibilityof genuine anonymityimplicatesboth the positive value in protectingthe sources of certaininformationas well as the danger inherent in allowing individuals to speak and write without detection. in Rights and Responsibilitiesof Participants NetworkedCommunities. HOWARDRHEINGOLD.Playersjoin in a groupactivity. or multiuser dimensions. and exchange views on the state of the art in their respectivefields. 145-50 (1993). I can be petite.. 6..build analyticalmodels. Nov. a technology created by the software in a computer to provide imaginary reality worlds throughthe use of word landscapes in which participantsmay create their own "virtual" descriptions. Just a Little Too Tangled Up in the Internet. at 34. Washington. 1994. as in the case of whistleregimes.Psychologists and sociologists point out that It people benefit from being able to assume differentpersonae."It's my hallucinogenof choice."9 There are many other valid justificationsfor preservinga limited right to anonymity. (Nov.anotherworld. There are also serious professionaluses of such electronicenvironments which workgroups use the MUD to conduct cooperativeresearch. sometimes in the past to preventdisclosurethat the writerwas female for fear her work would not be publishedwere her gender known.L. blond and sexy. 5. statuesque.C. 104: 1639 commercial providers of electronic environments must grapple with the proprietyof anonymity. in these cases. the publisher or journalist knows the source and vouches for its integrity. slim.. Michele Stewart. at E3.The media often cite "a prominentsource"who does not wish to be identified.collectively buildinga communalspace in which to conduct in theirgames. or Anonymityhas also been protectedin cases in which actualretaliation harm may ensue if the source of the writing is known..1642 The Yale Law Journal [Vol. fellow sysops. AND CYBERWORLD REP. brunetteand sultry. SYSOP NEWS. new places. 9. 1992).They can lead to new discoveries. There are numerous situations in which anonymity seems entirely and appropriate even desirable.. The Femenin Touch: "Sex and the Multiple Computer".and pseudonymousauthorshave long been with us. Anothersummed up her experiences as follows: Dreams are wonderfulthings.
This modest deprivation of anonymity is designed to promote Those who insist on anonymityin placingtelephonecalls are. 1995) (on file with author). N. at 50.on Technologyand the Law of the Senate Comm. Letter from David W. A real controversyhas arisenover whetherHarvard studentsmay electronic spaces that permitor even encourageanonymousposting. Professor ArthurR. Directorof Computing. Society.which is quite analogous to driving without a license plate.in Philadelphia. e. Amendmentvulnerabilitiesthat electronic superhighways 11. the practiceof offeringpooled computerfacilities in dormitoriesand variousschools means that studentsusing such pooled resourcesare not identified. it would be possible to use audit trails to track abusive messages to particularcomputingstations.For example. Assistant General Counsel. 1993). Interviewwith Johan Helsingius. in essence.. 1995). For example. For example.Indeed. WIRED.divertingtrafficthrough render an audit trail impossible. Real highways. to author(Mar." of witnessedthe developmentof a trendtowardsthe establishment "anonymous remailers"who provide a guaranteethat messages cannot be traced back to severalof theseremailers effectively can theirsources. June 1994. saying accountability.g.Moreover. Universityof Pennsylvania. Commercial informationprovidersare also devising ways to deal with the difficult question of levels of anonymity. Driverson the real highwaysare not permitted it should be possible to require users of networksto be responsible and identifiable. would requireknowing that a stationwas used only by one personor would requirethat a supervisorrecordboth the names of studentsenteringa computingfacility and which computersthey used duringa session. InternetInformationSpecialist. America Online.AssistantDirectorof ComputingServices.. Bruce. they do not want to be accountableon the communications network.some universitiesdo not have unitarypolicies governingthe computeruses of all of their students. 10. 14. Phillips.. See HARVARD ARTS HARVARD COMPUTER COMPUTER RULES ANDETIQuETrE: & SCIENCES STUDENT UNIVERSITY. (Feb. Id. Pa. however. some schools within the University of Pennsylvaniaprohibitanonymous messages while others do not. at 50. Steven Levy. (Apr.C. 1993). Joshua An Quittner. Miller has made this argumentquite persuasivelywith respectto the deploymentof anonymous telephone calls: I believe that anonymity-not privacy-is what is being sought by a telephone caller who objects to having the telephone numberrevealedby CallerID.have that abuserscan be identifiedand reprimanded. Office of Information. 265 (1990).. How To Launder YourE-mail. WIRED. 2030 Before the Subcomm.in Chapel Hill. With such a pooled system.Law enforcementofficials or lawyers seeking to file a civil suit might not be able to identify an individualto hold responsible. MIT has no specific policy but attempts to discourage anonymous postings while recognizing the difficulty in excluding them altogether. Interview with Paul Jones. See Hearing on S. . to author(Mar.1995] Branscomb 1643 of grievances. post such messages in non-Harvard but The Universityof NorthCarolinapermitslurkersto remainunidentified forbidsand technicallyblocks on uploadingof messages until a user has a verifiableaccountand user identification the system. do not carry the same First do. HarvardUniversity forbids its studentsfrom posting anonymousmessages. SERVS.. Interviewwith Dan Updegrove.June 1994.on the Judiciary. 50-51.." access withouta motorvehicle license so. Inc. however. 2d Sess.E-mail from James D. 12. Otheruniversitiesdo not have strictenforcementpolicies. In any event.They keep recordsof the real identityof pseudonymoustraffic so Recent years. 52-53. AT 3 COMPUTINGHARVARD(Dec. once again raising the specter of true anonymity. The questionthen is whethera person has a rightto hide behinda veil of anonymityin makinga telephonecall over the public telephone network . 2. 1995) (on file with author).To trace a message to a particular individual.'0 facilities do not permit genuine Many providers of computer-mediated anonymity..MIT.however. University of North Carolina.9. AmericaOnline permitsthe use of pseudonymsand makes appropriate no effort to prescreenmessages but reservesthe rightto curtailservice to memberswho abuse the privilege by posting abusive anonymous messages. 101st Cong. requiresthat automobileshave license plates to travel on a public road. See. for example. logically.
that is. Westin.how can one ensurethe usersthemselves confidentiality of messages posted to trusted colleagues? Such issues of autonomyover communications presentdifficultchallengesin the cyberspaces. but 84% are concerned about it. one's corporation. Tornillo. 104: 1639 Autonomy means the right to exert some modicumof control over one's electronic environment.and propertyownershiprecords were not available for public processing and recordation. These questionsare often clusteredwithin the area of law called privacy.At a minimum..or one's institutionalentity? as Second.13 Furthermore. This freedom not to speak simply protects the right not to have informationdisclosed without consent or in a manner that may be contraryto one's interests. the opportunitiesfor unwitting disclosurein cyberspacesrangefromuses of electronicidentification access for to the system. information about oneself. Alan F. v. INC. 15.. Remarksat Managingthe Privacy Revolution:The First Annual Conferenceon American Business and Privacy (Oct. and 78% feel that they have lost control over personal informationabout themselves. See Miami HeraldPublishingCo.S.'5The confusion about privacy indicatedby these statisticsis compoundedin the Networld.voting identification.First. privacy must mean some degree of autonomy informationand how it is obtained and deployed by others.1644 B. to uses of credit cards for purchases. AND PRIVACY: NATIONAL A SURVEY(1994)). governmentalinterests would be adversely affected if birth and death records. Privacylaw is a fairly recentarrivalon the horizon.Efforts to devise some rules to preserve autonomy must include considerationof several challengingquestions. 241 (1974) (holdingthatstateright-of-reply statute granting candidate newspaper space to answer criticism published in newspaper violates First Amendmentguaranteeof free press). there is no comparableright to be heard. 13.418 U. may certaincyberspacesbe maintained privatespaces in which the the determine governingrules?Third. or control the timing and terms of disclosure of. CONSUMERS. Autonomy The Yale Law Journal [Vol. This has become a matter of considerableconcern. too.and countless ways in which identification coupledwith personalpreferences behavior. is computerized and Americanshave very little comprehension or agreementaboutwhatprivacy of entails. motor vehicle registrations. derives at least some of its virtuesfrom FirstAmendmentprinciples.but it.privacy can be translatedinto some sanctuaryto which one may retreat-a personal space and the ability to screenout unwantedor offensive messages. 4-5.identificationof viewer of preferences. INTERACTIVE SERVICES. is there a right to prevent access to.communication medicalrecords. 1994) (discussing results of LOUIS HARRIS& Assocs. Although there may be a First Amendmentright to speak. over personal including governmental entities that may have a compelling interest in obtainingthe information.14 Control over personal informationmay appear to be the flip side of freedom of speech. . the freedom not to speak. Clearly. 14.
5.'6 The complexity of the relationshipsbetween anonymity. throws the legal responsibilityback upon the This lack of accountability them into censors. COMPUnING: 18. Eating Well. . Walter S. Id. 1. This would be especially true for the smaller bulletin board Thereis as yet operators(sysops).autonomy. If one cannot hold the poster of an abusive message responsible. See Lee Sproull & Sara Kiesler. .who enjoy the fantasy aspect of these communities and argue that it enables shy or socially outcast people to finally blossom via modem.the defendantmust be the providerof the electronicspace containingthe message. law would hold the for messageaccountable any deleteriousconsequences initiatorof a defamatory associated with it. . because it is anonymous or the poster is judgment-proof.and when attentionis focused upon accountability.Networks. who have little or no financialcapabilityto pay damagesimposed by a legal judgment. Accountability Branscomb 1645 Accountabilityrefersto the acceptanceof responsibilityfor one's actions. conduct financial scams or victimize others sexually.'7It also facilitatesthe distribution consequences. 1995. ISSUESIN 17.all of which are still in their infancy. 1995. smear people. Potentiallitigantsand theirlegal counsel have not hesitatedto seek the source of the deepest pockets. in SOCIAL IN PUTnNG COMPUTING ITS PLACE 335. One difficulty is that many of the abusers have been young users just learning their computer skills. Computers.1995] C. 338-39 (ChuckHuff & ThomasFinholteds.' Althoughthe of false informationthat may have detrimental users of anonymousmessages seem adamantin claiming an absoluteright to their anonymity.there is no basis upon which an injured party can the initiatea tort actionto redressgrievances. and Work.. Without accountability. Mossberg. a role none of providersof the cyberspacesand transforms them wishes to play. Anonymity is a cherished traditionamong some on-line veterans. for the most part. at 4G. anonymity or pseudonymity on the electronic highways is rampantand seems to stripusers of the civility thatthe face-to-faceencounter has engenderedin most modem societies. 16.Technically. where to place the burden for behavior that no consensus regarding contraveneswell-establishedlegal restrictions. Being requiredto monitorall digital traffic would place an undue burdenupon these informationproviders. 19.Y. N. Feb. who are.judgment-proof. 1994).'9this anonymity prevents the legal system from holding them accountablefor abuses of the privilege. It sure makes it easier to spread wild conspiracy theories. Marian Burros. is accountability most apparent For example. PLAIN DEALER (Cleveland). TIMS. Accountability Key to Democracy in On-line World. Feb. . at C3 (discussing potential problems created by false and misleading electronicinformationregardinghealth and nutrition).
Is Therea Place for the First Amendment Cyberspaces? The three issues I have chosen to explore.judges. GEnie. it must be understoodthatthe FirstAmendmentis a local ordinance. See ELECTRONIC 21.America availableinformation and Online. See. available online at America Online.23 As more and more computerusers arrivein these cyberspaces. do not have the equivalent of a with freedomof speech. governmentbut from all intrusionsor confrontations of what has become the Internet. Members' Online SupportArea.users and their In the pioneeringdays usages were largely ignored. often without any genuine understanding or experience with ? FRONTIER FOUND.Still. indeed. at 74-75 (1948). See infra note 65.1646 The Yale Law Journal [Vol.22Some commercialinformationservice behavior providerswrite contractsdescribingtheirexpectationsof appropriate and reservingthe rightto withdrawservices from those who do not comply. Doc. The inhabitants of as of cyberspacesoften treatthe FirstAmendment a given statement protection from the U.Such issues sourcesof controversy FirstAmendment are traditional are continually implicatedin the debates and conflicts arising out of online FirstAmendment-type controversies arisingin both actual activity.N.claims to autonomyover the informationtransmitted questions of accountabilityfor misuse or abuse of the informationresources. as well as publicly suchas CompuServe. e..20 Many. The cyberspaces were used primarily for professional and academic purposes.6 (version 2. The Internet.. 22. of and juries. in history. 104: 1639 in D.g. 20. and anonymity. While exploringthe capabilitiesof interactive dialogue computer-mediated and the First Amendmentconflicts arising as by-productsof such communication.the United Nations UniversalDeclarationof HumanRights.21 as well as seeds that have been sown in the constitutions of other countries. in their world. EFF'S GUIDETO THE INTERNET 4. 217A. serviceproviders Prodigy. the constitutional againstinterference prohibition right to freedom of speech remainsa sacredtraditionin United States media law and has correlativerightsin the laws of otherWesterncultures. subject only to the "acceptableuse policy" (AUP) mandatingthat the networkservices be used for the research community and its scientific goals.they bring expectationsthatthe legal normsof the real worldwill apply. ImagiNation. the WELL.presentprototypesof the that are possible and also demonstrate the kinds of informationmarketplaces kinds of abuses and dilemmasthatcan occur and challengeFirstAmendment principles. 23.A. MemberServices. G. which insulatesthem not just from interference with the real world. most other countries. the assertionof a right to true online. A/810. . Res.Lawyers. America Online Termsof Service (TOS) ? 4. U.The current encountersin cyberspaces and hypotheticaldiscussions are useful tools for communication becomesmore exploringwhatmayoccuras computer-mediated widely available throughoutthe world.S. Delphi.2.2 1994).
and debates about freedom of expression versus nurturanceof community. Judge Stearns recognized that what LaMacchiadid was reprehensibleand and "heedlesslyirresponsible. might produce conclusions that would help informthese debates and furnisha basis of validatedobservation for all the theories flying around.1995] Branscomb 1647 electronic networks. TIMES.transferring authority. For the purposes of analysis. Stearnsraisedthis questionin dismissing the indictmentfor wire fraud againstDavid LaMacchia. AREAS CONFRONTATION In orderto explore these First Amendmentissues. 31. Judge RichardG. About two dozen social scientists. of a jurisdictionthat is separatefrom andperhapsindependent the legal norms is questionable. or decide controversies arising within the cybercommunities. are asked to prosecute. at A17. 1994. at *1 (D. at 10. No. United States v. at 1. working for several years. Mass.the MIT studentwho providedan electronicbulletinboardinto which an alleged million dollars' worth of copyrightedsoftware was uploadedand downloaded. 1994. see also Peter H. at *33. I divide the cases into severalcategories:those in which existing laws have been applied somewhat successfully to the cyberspaces. 30. supra note 8. traditional been efficacious in solving problems in the Networld. solutionsto FirstAmendmentproblemshave In some of the cases. Lewis."25 whether new legal norms must be devised for the governanceof the Networld. Right now. Id. OF II. N. are confrontations arisingbetweenthe legal expectationsof the real world and of the developing "netiquette"24 the "netizens" of cyberspaces. like the Netiquettethat old-timerstry to teach the flood of new arrivals. quite innocently. all we have on the Net is folklore. 1994. quite troublesome. but concludedthat applying the wire fraudlaw to criminalizehis behaviorwouldjeopardizethe activities of millions of computerusers who may. Dec. legal normsfrom the real world may resultin however. 25.Y. but knowledgeof the dynamicsof how people do behave is an important social feedback loop to install if the Net is to be self-governingat any scale. ComputerUse Indictment Is Thrown Out. Dec.Y. I turn to a discussion that of some actualconfrontations have arisenin cyberspacesin recentmonths. The critical question is whether "new wine can be poured or successfully into an old bottle.N. Dist. at 64.Id. Whether to "netizens"may assert a cyberjurisdiction govern their electronicbehavior. 94-10092. Peter H. at *36. and to the applicationof rigid rules inappropriate the cybercommunities may the full developmentof the information agora that the technology jeopardize promises." that it possibly infringedcivil copyrightlaws.but by users of his bulletin board.Id. Mitchell Zuckoff. Lewis. GLOBE. .defend. determination of criminalliability should be left to Congress. more and more often.S.downloadsoftwarefor legitimatepurposes. Without such grants of jurisdictional of the real world. SoftwarePiracy ChargesAgainst StudentDismissed.ratherthanto judges applyinglaws designedfor a different technology and a differenttime in history. Judge Rejects Computer-Crime Indictment. Dec. 28. Thus.those in which cybercitizensare 24. BOSTON Dec. LEXIS 18602. 1994 U.A science of Net behavioris not going to reshapethe way people behave online. Thus. 1994). RHEINGOLD. in others. TIMES.those in which "netizens" have taken governanceinto their own hands and devised their own means of dealing with what they perceiveto be abuses. ? 1.not by LaMacchia. LaMacchia. 30. *36.
18 U. CompuServeInc. Transferof ExistingRules of the Real Community Cybercommunity The firstcase I will exploreis one in which existing law was appliedquite the effectively to a controversyarisingonline. Indeed.Y.27 The plaintiff sued CompuServe for defamation because of objectionable materialposted withinan electronicsegmentcalled RumorvilleUSA. CompuServeInc.Significantly.The new and challengingtwist was that the alleged defamatory materialappearedin an online bulletinboardratherthanin a newspaperor on questions a public broadcast. In 1991.N. or are prohibited from monitoring.Inc. total responsibility contractwith CompuServewherebythe former"accept[ed] for the contents" of material that it edited.C. 27. 104: 1639 at odds with the legalities of the local jurisdiction. Id. 28. 135 (S. 29. 776 F. Moreover.which was more likely to be financiallysolvent.Despite the new form of media. If the traffic constitutes public e-mail. electronic traffic.S. activity on the CompuServe system generated a case with significant implications for these issues. This was one componentof the Journalism Forum. Supp. at 137. Cubby. solutionmet with the satisfactionof the defendantcommercialinformationprovider. 1991). Cubby. . the would forbid monitoring.the fundamental defamation cases as it did not change.28 neitherknowledge of the alleged defamatorymaterialnor the opportunity to Don FitzpatrickAssociates had signed a exert control over it. v. the very nature of this controversymay have made it ripe for easy importationof existing legal norms. Don a Associatesconstituted responsible partythatcould have been held Fitzpatrick liable by the alleged defamedparty. 26. unlike some of the othercontroversiesthat involve fact patternsunique to the new media.it would be held to standardsof editorial control and would be accountable in law to those defamed within its services.a daily newsletteroperatedby Don CompuServe claimed to have Fitzpatrick Associates of San Francisco.1648 The Yale Law Journal [Vol. Id.. this case involved an archetypal First Amendment conflict: a claim of defamation. Furthermore. Electronic Communications Privacy Act (ECPA)26 If the provideris consideredto be the publisher.D. The court could rely on existing to attemptedto apply the legal standards the facts at issue.and those for which no of legally enforceablestandard care yet exists.29As a consequence. v.Inc. ?? 2701-2702 (1988). into the A.however.but the litigantchose CompuServe. to Few cases have been definitivein determining what extent commercial information providers and sysops must monitor.
Id.book store. have partnership agreementswith their providersor who may. The Cubby case merely holds that commercialproviderswho make no may distributors effort to monitorcontent and serve primarilyas information be relieved of liability for the content of messages within their systems. the Technology is rapidlytransforming informationindustry. was not requiredto be aware of everythingcontainedin The court was quite explicit in its absolution of its electronic memory. than that which is applied to a public library. rangingfrom small-timepersonaloperatorsthat look more like personal mailboxes to very large commercialoperationsprovidingaccess to whole archives of graphicimages. as such. or newsstandwould impose an undueburdenon the free flow of information.even when providedby the same entity. Id. or newsstand.and it would be no more feasible for CompuServeto examine every publicationit thanit would be for any statements carriesfor potentiallydefamatory to other distributor do so.A computerized database is the functional equivalent of a more traditionalnews vendor. . like America Online. at 140. conversationstaking place within the computer-mediated is likely to be only the firstforay into the deliberation necessaryto Cubby for determinehow to assign liability and accountability message streamsthat may differ markedly.30 CompuServe: CompuServehas no more editorialcontrol over such a publication than does a public library. Nor does the case begin to addressthe volatile and diverse universe of bulletin boardsysops. may be held legally responsible to nonparticipatingusers allegedly defamed or damaged by electronic environment.adopt the role of publisherand assume responsibilityfor monitoringsome of the forums..Confrontations worldsandthose who feel abusedby the betweenprovidersof these networked 30.. 31. assume responsibilityfor screeningmessages. but it involved an information full to pursuant its contractwith the providerthathadundertaken responsibility cyberspaceservice. The case offers no solace to the thousandsof individualbulletin board operators on who. and the inconsistentapplicationof a lower standard of liability to an electronic news distributor such as CompuServe. it shouldnot be acceptedas the final word on the subject. because they nor to the volunteernewsgroupmoderators the Internet.1995] Branscomb 1649 of The court found that CompuServewas only a distributor Rumorville USA.book store.This is quite differentfrom other managerof the particular information providers who may.Not only was this a districtcourtcase.3' Although the decision was welcomed by sysops and commercial information providersalike. and. like Prodigy..
NAT'L J. !!!!!" The individualdefendant.The suit seeks $100 million New York.Y. Lewis.against Prodigyand subscriber in actual damages and an additional$100 million in punitivedamages. 33. 16. Libel Suit Against Prodigy TestsOn-LineSpeech Limits.the message directlyaccused the in plaintiff firm of illegal activity in the context of its participation an initial public offering. 104: 1639 words passing through them in digital form are likely to be troubling and expensive.by its own account.WHO OWNS TO FROM PRIVACY PUBLICACCESS98-103 (1994). available in ProdigyDid Not Publish] (quotingProdigy PresidentTed LEXIS.PeterH. supra note 33 (quoting Henry Heilbrunn. John Moore. Id. from stock marketquotationsto sportsresults. endorse or otherwise vouch for the contentsof any note and cannot be held responsiblein any way for informationcontainedin any such note. offers an neutralsafe haven for Middle Americanfamilies seeking an environmentally Prodigyhas been the subject electronichome as comfortableas Disneyland. unless alternatives can be devised to handle these situations satisfactorily. Prodigy. at DI. and "to provide the court with a detailedexplanationof how messages to the system are posted. Prodigy agreedin for courtto block messages concerningthe complainant threemonths.").Prnews File [hereinafter Papes remarkingon Prodigy's "role as a family service that reaches a very broad audience with diverse viewpoints")."'35 Oakmontof Lake Success. at 745 ("Prodigyenvisions itself as the Disneyland of bulletin boards. News Library. 1991. where a warningby Prodigy notifies the viewer that "Prodigydoes not verify."Id. INFORMATION? 35. . 1992. Prodigy Did Not Publish. "Thisis fraud.The incidentreveals some deep misunderstandingsamong subscribersconcerning the differences between public and private electronic spaces and highlightsthe inherentproblemsin dealing with a highly differentiatedset of cyberspaces that range from electronic mail to public forumsto electronicshoppingmalls. One of those most offendedby the message soughtto have it posted in a public space so that other subscriberscould come to know both its subject and source.. to Prodigy.1650 The Yale Law Journal [Vol.fraud. as a joint venture between Sears and IBM. The offending message appeared in the Money Talk discussion group. Mar.reviewedandrejectedthe recommendation post this message in public spaces fifteen times because posting it would be to and to disturbing Prodigysubscribers "'grosslyrepugnant society's standards These messages fell into the categoryof "'blatant expressions of decency. 1994.a family networkprovidinga variety of useful services.32 Legal Rules of B. at D2. PR Newswire. Several of these incidents are discussed extensively in ANNE W.a formeremployee of Prodigy. 32.fraudand criminal!!! had not used his accountfor "some time" and denies responsibilityfor the message. 28.Senior Vice Presidentof Prodigy). for example. 34."to trackdown"the offendingparty. TamingCyberspace.34 the one examined here involved hate messages from a subscriberthat had been originally transmittedto many subscriberswithin the protectede-mail service.ProdigyDid Not Publish OffensiveMessage Cited by Media. the case recentlyfiled by an investmentfirm. exclaiming: Id. See. Nonetheless. TIMES.Stratton David Lusby of Key West.Florida. Oct. UnsuccessfulTranslation Real-World the online activitydemonstrates difficulties regarding A recentcontroversy confronting information providers as they attempt to accommodate their electronicservicesto the expectationsof users."Id.Nov.33 but of numerous attacks on its policies by subscribers. See W. screened and monitored. BRANSCOMB. Affirms Standardsand Free Expressionon Bulletin Boards. 23.N.
which has a large Jewish readershipin the New YorkArea.But on the morning of October 23.If Prodigy is in the position of a publisher. that this text never appearedin a publicly available electronic space on the Prodigy network but was in transmitted the privatee-mail. as it is for most message providers.Swift PR Action Chills Anti-Semitism Charges. Id.41 In this case.They only get what they so very richly deserve. Agence AFP File.in Washington.C. (Feb. supra note 33. publisheda page one story.the informationprovideris acting in the normalmanner 36. it would be beholden to the legal restrictionthat such mail not be monitored."). ADL's complaintgot limited pickup and for the most part. however.persecutionsand the mythicalholocaust. 1991.Remarksat the Forumon Rights and Responsibilities of Participants NetworkedCommunities. 39. available in LEXIS. . 37. 30. (quoting Ted Papes). that monitoringe-mail was forbidden.Oct. however. Dec. it was well within its rights to assert editorialcontrol over whateverelectronic message of traffic appearedin public spaces.it was determined FrancePresse." ComputerBulletin Board Under Fire for Allowing Anti-SemiticMessages. the situationchanged when New York Newsday. 23. 1991.in presentlegal terms. however."'). Oct.37 This incident came to the attention of the national media when the Anti-DefamationLeague accused Prodigy of anti-Semitism. 38. racism and hate"' that would no longer be posted in public spaces. Eventually. See." and they permitted posting of some of the less repugnantmessages. however. a difficulty in applying existing to legal metaphors a Networldin which an information providermay logically seem to fall under the ambit of several legal regimes. See JerryWalker. George Perry. at 84 ("Prodigyalso made it clear that it was not preparedto play bulletin-board thoughtpolice. existing rules were eventuallyappliedto protectthe publisher for from legal liabilitybut not from public approbation what some considered reprehensiblebehavior.""Pogroms.38 Prodigy claimed that it attemptsto ensurethat messages posted in public spaces will not offend its subscribers. that they did not intendto become "thought police. On some channels offered by Prodigy.39 Prodigy sources also claimed. See John Buskin. The actual messages read:"Hitlerhad some valid points too. 41.36Prodigy managers were quite clear.1995] Branscomb 1651 of bigotry.News Library.The episode created a great furorover appropriate most offending message actuallyreceived a great deal more media attention thanit ever would have receivedhad the nationalmedia throughrepublication not picked up the story. e. 1993).to screen the message traffic.and the entire behaviorin the Networld.g. WillFree SpeechByte the Dust?. in D.headlined 'High-TechHate. at 36 ("At first.GeneralCounsel for Prodigy.40 althoughit was technically possible.at least undercurrent in exercising editorial control over messages posted in public spaces while attemptingto exert as light an editorialpencil as possible in the interestof providingan open forum for the discussionof public issues.SPORTING NEWS.supra note 38. Prodigy Did Not Publish. 40.. As a transmitter electronicmail services.There is. the reportswere neutral. at 36 (reprintingProdigy public relations staffer's chronology of reactionsto the incident)." "Removethe Jews and we will go a long ways toward avoiding much trouble. 19. See Walker. 1991. NEWSDAY. Prodigywas within its rights and a recognitionthat.Eventuallythe media attacksubsidedwith apologies on all sides law.
Amateur In the Action case" has provokedconsternation and concern among both network users and information providers. Tenn. CR-94-20019-G(W.The first case raises the issue of whose communityrules should those of the existing geopoliticaljurisdiction govern a cyberspacecontroversy. 13. United States v. . 147 (1959) (finding that bookseller could not reasonablybe expected to monitor content of all news vehicles it offered for sale and that to impose such requirement would restrictfree circulationin informationmarketplace).42 Thus. the area of pornography.in othersit is deliveringe-mail and acting as a carrierlegally forbiddento monitorcontent.The AmateurAction BBS was a subscription bulletinboardwhereusers.Nonetheless. These informationservices would prefer not to use "utility"as a legal term of art because it suggests thatthey must offer their services to anyone.could access pornographicmaterials. real-worldcases arise with greaterfrequency. 104: 1639 of a publisherediting content.No. Tennessee.consentingadultswithinan electronicallymediated environment. Thomas.Most have long and comprehensiveservice contracts that specify what subscribersare to expect from them and what they expect of their subscribers. 1994) (conviction and forfeiture order). a commoncarrier-each of which would or have been entitled to its own legal regime and practicingbar.S.who operatedthe bulletinboard.claimed that the trial was specificallyinitiatedin Memphisratherthan in Californiain order to take advantageof the more conservativeclimate prevailing in that 42.appeals docketed. 94-6649 (6th Cir. to 44. it would be unwise to impose a genericlegal regime clusteringall of these legal to metaphorsinto a single new legal metaphor purporting serve as an overall umbrellafor the Networld. California. 43. C. might have been a newspaper.efforts to impose existing statutorylaws and administrative regulationson these new and cybercommunitieshave become more common and more cyberspaces troublesome. or a broadcaster.or a cable television system. 21.The images held to be obscene were uploaded in California and were downloaded in Memphis.In a digital data stream it is not easy to tell the difference between what.361 U.1652 The Yale Law Journal [Vol. deep within the Bible Belt where such pictures were considered objectionableand unacceptableunder local community standards. 94-6648 and No. See Smith v. and in still others it is acting as a that distributor would not be requiredto monitorcontent. are The attorneyfor the defendants. in former times.Dec.D. the relationshipis construedas a license to use ratherthan an opportunity purchasea commodity. Dec.the legal criterionon which obscenity determinations based.43To impose existing legal metaphorson commercialinformation providerswould the be unwise withoutdifferentiating ways in which these providersrepresent different modes of informationtransport. Thus.in others it is offering a public forum for the discussion of public issues. 1994). ImposingLocal Community Rules on an UnyieldingCybercommunity as Unfortunately.not all of which have real-world counterparts. Prodigyand its counterpartsrepresent a truly unique type of informationutility. or those of the cybercommunity.
.S.but the differentiating factorin this case was thatBakerused the real name of a classmate as the name for the subjectin his story.if an information providerpermitslocal children to access the locally offendingpicturesby negligentlyfailing to verify thatthe users are "consentingadults.was recentlyarrested.sex. or the maintained and within the virtualcommunityon the communitystandards by electronicnetwork.and held withoutbail for transmitting in via the Internetwhat were alleged to be both obscene and physically threateningmessages in interstate traffic in contraventionof 18 U. 16. 9. Id. In another recent development.Congresswill have to determinewhetherthe presentrule or shouldbe maintained whetherone moreappropriate computer-mediated for communicationsshould apply.html>.Id. 1994.who alertedschool administrators. of rights to search Baker's residence and computer. 1995.Such cases often are decided upon the particularities of the special circumstancesunder which they arise. Id. EasternDist. ? 875(c) (1988). Clearly. 48.S. See Peter Swanson. .If the Courtdoes not consider this particularcase.47 Otherwise. available online at URL <http://www.umich. the original cyberpunkwho earned his title by plaguing computersites aroundthe country for over a decade. Baker Press Release. who told her father. one similar to it will likely arise in the near future. The UniversityDepartment Public Safety obtaineda writtenwaiver of Id.48 Indeed.If the photographsare circulatedonly electronicallywithin a group of consenting 45. unconscious and put .N. so this may very well be a challenging case for First Amendment scholars to analyze.46 The case raises the importantissue of which local community'sstandardsshould apply-that of the uploadingprovider."local jurisdictional rules might also apply..eecs. there were only words exchanged within cyberspaces and no threateningacts in physical spaces. Prior to a scheduled hearing on Baker's suspension from the University.such stories are not uncommon. available online at URL <http:/krusty. The Jake Baker case presentsan example of online behaviorwith a significantimpact within the local community. at 6A. a postal inspector. .S. it appearsthat the persondownloadingthe images was recruitedby the prosecutionfor the purposeof establishingthe offense.July 19.Jake Baker (nee AbrahamJacob Alkhabaz). Mitnick.edu/people/pjswan/Baker/ pete/pete2.. and found e-mail messages between Baker and a correspondentin Canada that revealed plans to carry out some of the fantasies in the real world and indicatedthat the named female was readily availableto be kidnappedand "'knock[ed].and murder was posted by Baker in the alt. torture. DistrictCourt. however. COM. Feb. 16. See John Markoff. geographical jurisdictional rules should apply. into one of those portablelockers.as when local childrenare used as models in online pornography.edu:8001/activities/safe/safe/case/ umich-baker-story/us-pres> (quoting Affidavit of Special Agent Greg Stejskal of the FBI).APPEAL(Memphis). Attorney'sOffice.storiesUsenet newsgroupin early January. he was arrestedby federal agents.C. The Memphiscase may not be as clearon the issue of "localcommunitystandards" versus"virtual as communitystandards" legal puristswould desire. the FBI capturedKevin D..A Most-Wanted CyberthiefIs Caughtin His Own Web. of Mich.This case is currently appealto the Sixth CircuitCourt on of Appeals and may eventuallyreachthe SupremeCourt. TIMEs.a twenty-year-old studentat the University of Michigan.if thereexists a genuineimpactoutsidethe electroniccommunity with detrimentalconsequences within the local community. The fatherthen relatedthe story to an alumnusof the Universityof Michigan. Some materialwas sent via the mails in responseto a requestfrom a local citizen. Accordingto regularson the Internet. Feb."' U. 47.arraigned U.1995] Branscomb 1653 community. Porn Trial. A lurid story describing rape. Feb.More Informationon the Jake Baker Case.16. According to these reports. 1995. sometimes clouding the policy issues upon which the futureof the legal system rests.that of the downloadinguser. 1995.Y. 46.45 Indeed.mit.The story was picked up by a sixteen-year-old female in Moscow. at Al.
Roger Karraker. 11.which was availableto only ten males.POST. Sept. The second case also concerns the conflicting rights and authorityof members of the cybercommunity and outsiders who exist in the real a This case also represents geographical geographical community. Office of Civil Rights.1654 The Yale Law Journal [Vol. 49. see also JohnSchwartz. Oct.the OakLeaf.the SuperOak Leaf Online of (SOLO). 1994. Aratav. however.non-discriminatory and lawful manner. "Hostile Environment":PC Rebels Ravaging Academia. posted to listserv <cyberia-l@birds. quoted in News Release.49 bulletinboard.the case has important that may accompanyonline behavior. at 3.C. SantaRosa Junior College.edu> file with author). 53. All students. 1994. the Office directed Santa Rosa to amend its Administrative ComputingProceduresto read: The computing facilities at Santa Rosa Junior College are provided for the use of Santa Rosa JuniorCollege students."53 Accordingly. 1994."51 The legal tool employed to stop this allegedly offensive e-mail was Title IX of the EducationalAmendments of 1972. libertarian philosophy would maintainthat the rules of the "virtualcommunity"should apply. other on were not participants aid students. 3. Rights. in Mike Godwin. 1994.ethical.faculty and staff in supportof the programsof the College. Joanne Jacobs. at B I 1.52The Office of Civil Rights of the Departmentof Educationdirectedthe college to "promulgate conductfor users"and to "notifythe users of their guidelines of appropriate on right to be free from harassment the basis of race.S. 1993) [hereinafter News Release]. 27. News Release (May 4.50 of the One male participantsbroke the pledge and informedtwo women of derogatory remarksmade aboutthem on the board. operatedwithin the journalismdepartment the SantaRosa Junior the College in California. at B6 (op-ed). PHOENIXGAZETITE. Dep't of Educ. establishedthe bulletinboardin responseto The studentrequests. 28. Santa Rosa JuniorCollege Oak Leaf.. efficient. No. WASH.Because no women were involved in bulletinboardconversation. at F25. 104: 1639 adults. however. came to Karraker's to and purported "defendthe fundamental right to freedomof expression. supra note 51. jurisdiction's rules that may infringethe rights of membersof impositionof administrative overtonesfor the realthe cybercommunity. faculty advisor of the college's studentnewspaper. color. and staff are responsible for seeing that these computing facilities are used in an effective. Big Sister Is Watching.including membersof the newspaperstaff. faculty.Some On-LineGuidelinesAre Out of Line with Free Speech Oct. SACRAMENTO BEE. 50.wm.ProposedRemedialAction Plan.the women who were allegedlyharassed the board. 51. was intended to be operatedunder a pledge of confidentiality. Speech Code Proposedin OnlineForumat JuniorCollege. 09-93-2202. . nationalorigin or disability and to be free from retaliationfor protestingsuch harassment. (on 52.Sept. ? 1681 (1988). 20 U. world retribution This case involved a male-onlybulletinboard. Moreover.In responseto the ensuing conflict.
Playboy Enters.even networkssupported public for privatespaces on educational funds. Cal. e. See. color. 1 (1986). Lehman v..the male bulletinboardwas subsequently There are many other uses males could converse online in similarprivacy. and student grades.54 leave as a was forced to take an administrative As a final footnote. It seems clear that separate cyberspaces should be demarcatedfor public or private use and that the differences between them must be recognized. v.S.P.J. 39 (1966).S. Dallas County Hosp. The Public ForumDoctrine in the Age of the Information 46 Superhighway. national origin. 1552 (M. 56.30 U. Schwartz. 58. Ass'n v.S.promotions. Marsh v. 55. 59. Public Utils. Spock.supra note 50. v. 459 U. 1994) (finding operator of bulletinboardliable when users downloadedplaintiff'sgame programs). City of ShakerHeights. 453 U.. v.S. Florida.D. 828 (1976). 1052 (1982) (Rehnquist.56 by networks. Fla. are recognizedas closed to public discourse.58 order to avoid confusion.S. Ironically. On the otherhand..2d(BNA) 1921 (N. Greer United States Postal Serv. dissenting from denial of Civic Ass'ns. a much more cautious management of 54. or disability. Pacific Gas & Elec. See.59 These issues furtherraise the question whether service providersmust the users monitore-mail to ensurethatthey are not breaking law by permitting to deploy the system for nefariouspurposes.. PerryEduc. 424 U. Some physical spaces.g. they should be. For a fuller discussion of the applicabilityof the public forumconcept to cyberspaces. Perry Local Educators' Ass'n. Council of Greenburgh certiorari).S. Should service providersbe held responsiblefor what users do on the systems? Accordingto two recent intellectualproperty cases. Goldstone. 1993) (finding operator of subscriptionbillboard liable for copyright .J. 501 (1946). v. sex. Dallas Ass'n of Community Orgs. 418 U.60 If so. Supp. Big Sister Is Watching. 839 F. Karraker on result of complaintsabout sex discrimination the board. Id. Examples include the discussion of potentialappointees.326 U. Maphia. See Sega Enters. v.S.g. Adderley v. at F25. 60.This presents the horns of an almost insolvable dilemma. 114 (1981). Alabama. Co.385 U. 298 (1974). HASTINGSL.S. privatespaces are sometimes held to have assumedthe role of the state by opening themselves In to public access and thus providing a public function. includingdesignationsowned by there should be public entities.1995] Branscomb 1655 All studentshave the rightto be free from any conductconnected against with the use of SRJCcomputingsystems which discriminates any person on the basis of race.see David J. Comm'n.Inc.57 no constitutional barrier to providing private electronic spaces in which confidentialexchanges may take place. 335 (1995). 37 (1983). a cyberspaceneeds to be clear whetherit is a privateforum or a public forum.Q. 460 U.supra note 49. 57. Ltd. Dist. Frena.S. v. women at Santa Rosa initially requested an all-female bulletin board on which they could discuss subjects of interest without the establishedso that intrusionof males. for Reform Now.475 U. e.D.55 Is there any place in the Networldthat is private?One does not need to be a sexist or a racistto wonderwhereone must go to bareone's soul to one's friends.
S. 62. there is a rich experience governingthe conditionsfor offeringa new newsgroup. Indeed. 104: 1639 electronic speech of all kinds will ensue. at A-20. in the process impinging upon First Amendmentrights of free speech and autonomy over one's conversationalenvironment.63 castle that one can call home within the Networld? D. or we risk limiting a freedomwe cherish. To comply with federal legislation institutions prohibiting discrimination. 61.Sept. 1994. Cyberjurisdiction the Impositionof ElectronicRetribution and I turn now to a set of cases in which "netizens" have addressedaberrant behavior in their own cybercommunities. 737 (1970) (upholdingstatutepermittingU. follow the where is the reasoning of Rowan v.61 but outcriesagainst"thepoliticallycorrectfiringsquad"are becoming louder: The [SantaRosa JuniorCollege incident]casts a pall over computer communication.Don't Gag E-mail. Ourschools have no obligationto offerelectronicforumsfor chat.F.. But once offered.which is still in its infancy.1656 The Yale Law Journal [Vol. 29. Its contentshouldbe treated as tolerantlyas any other just speech. may findit necessaryto become snoops and censors. UnitedStates Post Office Department.62 Both the Amateur Action and Santa Rosa Junior College incidents illustrate the difficulty in applying real-world rules to cybercommunities without considering whether the imposition creates a greater burden than necessary.A possible solution in the Amateur Action case would be to change the standards to governingobscenity from the "local community" the "virtualcommunity. E-mail is fast replacingbackfences as the place to exchangeideas and gossip." The SantaRosa JuniorCollege incidentpresentsa more seriousconfrontation and between two conflicting principles:freedom from gender discrimination of To freedomfor privatespacesfromthe intrusion stateauthorities. Post Office to bar future mailings from sender) ("The ancient concept that 'a man's home is his castle' into which 'not even the king may enter' has lost none of its vitality . Colleges Shouldn'tCensorTheirStudents'ElectronicMessages.C. which prohibitssuch monitoringof There is no consensusconcerningthe way to resolve such a conflict. 18 U. therebyexposing themselvesto liabilityfor actingcontraryto the ElectronicCommunications Privacy Act. speech on these electronicgrapevinesshould be as free as the words we speak.") (footnote omitted)..S. e-mail. EXAMINER. Colleges cannot censor every student'sE-mail. . 397 U..S. Nor should they be expected to try.includinga mechanism for voting uponthe viabilityof such a groupanddetermining whetherit should infringementbecause billboardused plaintiff's copyrightedphotographs). 728. ?? 2701-2702 (1988). LynnLudlow. 63.S.
D7.Yes.but WhatAboutMaui?.Y. commercial use of the Internet is beginning to overshadowits academicand researchuses. 1994. 68.moderated").g.posted to listserv<cyberia-l@birds. Id. 1994.patents. Director of Networkingfor the National Science Foundation. President.computing. but ratherfor the value you have addedto those facilities. such as "forsale" and "forrent"newsgroupsand travellists." Quotedin Josh Blackman.edu> file with (on author). in Poughkeepsie. 7. 12.67Today.talk. what they experienced could aptly be described as "openinga mailbox and finding thousandsof junk mail letters with postage 64. Conversationwith Jane Metcalfe. misc.wm.See PeterH.M4 against outsiders invading their cyberspaces in an "unacceptable" manner. inviting advertisers be to innovative in how they presentedthemselves to what was perceived to be a users wary of traditionalmethods of prickly audience of computer-literate advertising.NetiquetteAdvertising. at DI. . The firstcase involved advertisers seeking to impose theirmessages upon newsgroupsin a mannerconsideredabhorrent the recipients.misc.N. at TechnicalSymposium at IBM. TIMES. created a spate of resentment when they thousands of Usenet conferences on the Internet with "spammed"68 for advertisements theirlegal services. Anarchy.has explained that even thoughthe "acceptableuse policy" may not be conduciveto profit-making activities on the NSFNET. (Nov.int-property. at DI. 66.comp. news.wm.June26. The term "spamming" meantto evoke the image of someone throwinga slice of Spam at a fan is and watchingthe pieces fly out in every direction. posted to Usenet newsgroups news. 1993. Stephen Wolff.Overthe years.Commercial by on use was initially deemed unacceptable the federallyfundedpredecessorto on the Internet. 65.Y. Three recent cases..legal. Ed Bailey.In anotherposting. Oct.acad-freedom.the traditionof the "acceptableuse policy" remainsdeeply rooted on the Internet. May 11. 1994).legal.groups. and alt. First Callfor Votes(Ist of 2).privacy(calling for votes on proposal for new group to be entitled "misc. CompaniesAre Rushing To Set Up Shop on Web. illustratethe to potential for cyberjurisdictions develop highly effective legal norms to of enforce acceptablestandards conduct.65 Today businesses all over the countryare rushingto set up their on very own "home page"66 the WorldWide Web.1995] Branscomb 1657 "Netizens" have also occasionally enforced their mores be moderated.WiredMagazine.legal.It doesn't matterif you chargefor your service:you're chargingnot for the NSF-fundedfacilities which are provided to both you and your clientele. 1994. it was interpreted prohibitingonly those servicesthatdid not enhancethe purposesof academicresearch as and productivity:"[T]he touchstoneis utility to the researchand education(R&E) community. July 2. Blackman also warns against (on sending an advertisementfor a condominiumto a brain-surgeon mailing list. LaurenceCanterand MarshaSiegel of Phoenix. Two lawyers. 1994. each generatedby a very differentincident.Y. This seems to sort out the differentiationof purposethattriggeredthe massive reactionto the Canterand Siegel advertisements were wildly posted that to every kind of newsgroupavailable. TIMES. misc. Peter H.some advertising the networkbecame tolerated. 2. Blackmandiscusses appropriate places on the Internetfor advertisements.a Threaton the Electronic Frontier?. Nevertheless. Nov. Josh Blackman.N. comp.however. alt. N. 67. posted to listserv <cyberia-l@birds. since brain surgeons might prefer to discuss attributesof brains ratherthan condos. See.edu> file with author).announce.Becausemanyuserssubscribeto several of these conferences. e. Lewis. who dared to challenge this tradition.newsgroups. Wiredmagazine has set up an electronic version of its popularprintversion. Lewis.
"Peter H. SpammersStrikeAgain on Internet.ATLANTA & CONST. the duo struckagain. N. 1994.They dispatched electronicmessage advertisinglegal services to clear credit recordsto over 10. One irate protestercreateda "PhantomPhone Beeper which called 40 times every night. at E3.000 newsgroups. a consultingbusiness that advises clients aboutthis new and burgeoningarea of commercialactivity on the Internet. Subscribers logged on to their computers to find a message that read: BY REPAIR LAWFIRM. As if this interruption newsgroups appendeda signal that informednewsgroupsystems managers surreptitiously that these messages had the approvalof managerswhose groupsrequiresuch In clearancebefore posting. February 1995.the duo also posted the to advertisements mailings lists of the ElectronicFrontierFoundation. 70. 104: 1639 due. 1994. 71.000 in fees from new clients. 9.NEWSBYTES. Id. this could be consideredforgery of permission or breakingand entering. MartynWilliams.one user who called himself Cancelmoose designed computer software to automatically cancel such His messages as Canterand Siegel posted.Althoughthey were reputed have found an alternative to have garnered$100. "Spamming" the Internet.On an 9.Canterand Siegel have not been content to enjoy the benefits of what the netizens alleged to be their wrongdoing. Id."Canter and Siegel also CREDIT "<ad>GUARANTEED managedto put their message in the equivalentof the telephonic 911 call: a enoughfor all channelreservedfor emergencymessagesconsideredimportant were not enough. Lawyers whom Canterand Siegel approached on 72.N.They sent irate e-mail messages posted to the lawyers' mailbox and "electronicletter bombs" designed to destroy the Canterand Siegel advertisements.70 EventuallyCanterand Siegel's networkproviderorderedthe pair off the to network.June 14.which are normallyused to send foundationnews to journalistsand policymakers. Lewis. 16.1658 The Yale Law Journal [Vol.Y TIMEs. 73.Feb. because some law firms have refused to take their case" and because they outletfor theirenergies..May 11.Moreover. informedthe authorof this fact. Oct.Y TnMES. Laurie Flynn.73 the real world. CyberspaceUpstartsProposeEtiquetteRulesfor Infobahn. . but many netizens sent out SOS messages urging him to deploy the The response of the suppliers of Canter and Siegel's countermeasure."69 Recipients were outraged.74 In response to the first transgression.Canterand Siegel have threatened file suit based upon an alleged First Amendment right of access. at D7. at F9. They have not yet filed suit. 75. Id.75 softwarewas not mobilized. 1994.72 Despite these new ventures. 74. Sneering at a VirtualLynchMob. however. 1995 (on file with author). 69. 76. Canterand Siegel have by in marketplace writinga book found a more lucrativereturn the information They have given up theirlegal practicefor on how to advertiseon the Internet. filling the voice-mail system of the Canter & Siegel law office in Phoenix with electronic garbage. the pair to take notice.76 J.
however.Helsingius began to use the softwarein a mannerthatKleinpasteconsideredquite objectionable. Johan Helsingius of Finlandand Karl Kleinpasteof the United States."80 Kleinpasteto design an anonymousremailersystem in six hours and to offer it to the "rec. ? 2. Martyn Williams. The fiercely held and opposing views regarding anonymityon the Internetexpressedby this lengthy online debate have little or no counterpartin the real world. 84.Anonymityon the InternetFAQ. Id. is the potential for self-governanceand self-policing in cyberspacesthat these events demonstrate. site resultedin a warningto Clunieto shutdown his system or lose 77. with a return addressfor the Canterand Siegel e-mail box.77 Siegel suffered.1.81 Undaunted. into Internetnewsgroups has become a problem of mammothproportions. 80.edu:/pub/usenetlnews. ? 2.sex. 81.6. The apparentneed for anonymity motivated such as "alt. 79. available in LEXIS. 16.mit. anonymous remailers. Id. The contractthat Canterand NETWORK.Performance Systems International. which declined his offer to serve their entire user membership. have also conductedonline discussionsof appropriate Cybercommunities and imposed sanctions on violators. but their message was initiatedfrom anothersource. Spammer Attorneys Get Disconnected from Internet. Id. Id.79 The need for pseudonymousmessages originatedin some of the more did volatile discussion groupsin which contributors not wish to be identified. What is most interesting. 83. News Library. . in the controversy over behavior. aroused broad intereston the partof other users. CurnwsFile. ? 2. Id. See L. betweenthe two areenlightening The arguments and. Kleinpaste deployed what he called a "fire to extinguisher" quiet abusive users againstwhom complaintswere filed and used it threetimes beforehe was so "overwhelmed" abusersthathe decided by The serverwas not reestablished to shut down his system.both the official acts of the service supplierand the vigilante that demonstrates "spamming" advertisements of acts of the angrysubscribers.May 5.judgingfromthe number of postings that were entered into the electronic dialogue.84 involving cryptography Complaintsfrom a large U. ConsumerCredit Advocates.2. prohibitedmass postings such as this.78 softwarethat Kleinpastewrote and sharedwith Helsingius.nude" group.answers/net-anonymity/partl>. and then with a formidablelist of forbiddenuses.82 until April 1993. NEWSBYTEs NEWS Feb.1995] Branscomb 1659 Internetservice was swift and final. 82. Two anonymous remailers. have sparred The argumentcentered aroundcomputer over the issue for many months.S. ? 1. as they pulled the plug on the massive Such retributionas Canterand mailing very shortly after it was detected. 1993. Detweiler. available online at URL <ftp:llrtfm.4. 1995.bondage. See id. Siegel had with their Internetsupplier. 78. Id.83 David Clunie also devised an innovative anonymous posting system and offered it in October 1992.
" where anonymousretailers were having a hard time With a commitmentto providinganonymityto all Usenet groups.I 85. See id. Id.89 Helsingius has met with strongoppositionfrom outragedmanagersas well as and from vocal users who view anonymityas a threatto accountability civility The strongestoppositioncame fromKleinpaste. Id.90 has crashedseveraltimes. ? 2. surviving. 89.92 Helsingius eventually shut down his service. bowing to network intimidation. Id.3.85 limited availablebandwidthin the South Pacific and thus elevating expenses beyond justifiable costs. much of the opposition was expressed by anonymousobjectorsin messages similarto the following: I am drowningin a backlog of work."94 Ironically. . (quoting Kleinpaste).but the Helsingius server approved.000 registered users in his firstthreemonths Helsingiuswas inundated of operation. in November 1992. to organizea vigilante groupof iratenews operatorsand to "'armthe Usenet Death Penalty"' to express objection to Helsingius' having introducedthe whetherthe usercommunity anonymousremailingservicewithoutascertaining This device has not yet been deployed. who threatened on the Internet. . See id. came from network administrators.. 94.86Nonetheless. at least once through"mailbombing" anonymous by protesters. 104: 1639 The allegationwas that the anonymousserverwas dominating his feed site. Id. 86. 90. (quoting Helsingius). Id.1660 The Yale Law Journal [Vol.93 also expressedgreatconcern that "the strongest opposition to the service . Helsingius offered his own anonymous remailing site in Finlandbased upon code writtenby Kleinpaste. so I can't go into all the interestedin enteringinto a long details here. Id.88 Although he he intendedto limit his serviceto Scandinavia. he discontinuedoperations in January1993 but released his software into the public domain. a charge that Clunie denied. 92. That there was a sizable demandfor such service is undeniable: with 13.S. where it could be recoveredand used by others. 91.91 of The argument concerningthe desirability anonymousremailinghas not been settled and continuesto occupy the time and attentionof large numbers of net users. .althoughat the time of shutdownhe was forwarding He 3500 messages per day to 576 newsgroups. nor am I particularly debate-the bandwidthis too low and my time is too constrained. Id.87 Meanwhile. 93. foundit temptingto respond to internationalrequests for remailings spurredby "the lawsuit-intensive climate in the U. 88. Id. 87.
they often take enforcementof their standardsinto their own hands and seem quite capable of doing so without the help or intrusionof lawyers or judges from the real world..net users have their own methodology for determining what is considered appropriate behavior.Some more discerninganalysts of the cyberscenehave suggested that servers who choose to providean anonymousserviceshouldbe held responsiblefor abusive messages postedon the system.but that is not the same thing as anonymity.96 Therefore.While offering users an opportunity remove their names from his files. Geopolitical jurisdictions.one might between potentially hazardousmessage sources and other more distinguish innocuous uses of anonymity.since the real abuserswould not be identifiable except throughthe entrepreneur providingthis service.the Finnishpolice obtaineda searchwarrant retrievedthe name and of a user of the Helsingius' serverwho allegedly had posted copyrightedmaterialpiratedfrom the Church of Scientology. is it proper?95 The debate continues concerning what level of anonymity should be permittedin cyberspace. 1995 (on file with author).penet. I am a firm believer in privacy.LEXIS Counsel Connect (Feb. I am in favor of defeating the reasons people need anonymity. and under what circumstances. You will not find the recipients of anonymous mail being the of supporters such a proposal. 1995). are not standingaside in these matters.however. thereby enabling the law to insulate from while imposingliabilityon those liabilitythe majorityof information providers the abusive messages.. Historically.For instance.. 95. 18. I have seen too many historical accounts of witch-hunts.the thirdcase demonstrates cybercommunities times resort to the age-old remedy of excommunication those who are simply unable for to conform their conduct to the minimumlevel of acceptability..97 that at Finally.not giving the wrong-doersanothermechanismto use to harassothers. See Anon.and pogroms-all based on anonymous accusations.Chairman.secret tribunals.Id. . when.] I have seen neighborsand friends come undergreat suspicion and hardshipbecause of anonymousnotes claiming they used drugs or abused children. Furthermore.If the only people who would support the idea are those who might use it. acting on a requestfrom INTERPOL. (quoting posting of John Noring.Anonymitycan be used to violate another'sprivacy. 96. the anonymousadministrator to sought supportfrom his users to fight Finnish authorities.. originating As the torturedhistory of anonymousremailersindicates. I have had harassinganonymousnotes and phone calls threateningXXX because of things I have said on the net[. and they tend to favor tolerance ratherthan strict accountability. 97. systems operatorwho provided excerpts from e-mail of anonymoususer).In February1995.One might proposethatthe international communityprohibitanonymousremailers. Conversationwith David Johnson. Id. Feb. in recent years. .fiCompromised!.1995] Branscomb 1661 do not believe we have the appropriatetechnology to make an anonymousservice work on the net.
"the annihilationof the was more permanent. Youhear Mr. Whatconcernedthe participants in the MOO was that Mr. In fact. (May 5. Id.99 actuality. The aberrantbehavior at issue in this controversyoffended the participantsnot only because of what they considered to be obscene behavior but also because it fell beyond the scope of the intended use of the medium. the Wizards (the skilled computerliterati)in the MOO decidedthat therewas a consensusthat Mr. 1994). "Toading" of normallyrefersto changingthe attributes the character selected by the participant in the MOO into the attributesof an amphibian. Id.Id.VILLAGE Dec. and a more acceptablebehaviorpattern. with a new pseudonym.Presentation at MIT CommunicationsForum on Democracy in Cyberspace. at 39.erasing all of the attributesof the characterand deleting his account on character" the MOO. at 41. "'As if against her will.his behaviorwas similarenoughfor the othermembersto suspect that Mr. with only a dozen or so hard-linersobjecting. at 36 (providing VOICE.Mass. Another characteridentified as "legba" suffered a similar form of sexual degradation.1662 The Yale Law Journal [Vol.98 Mr. The first resolved was how to handle such aberrant question they faced was what constituteda community of citizens in the was a multiuserdimensionestablishedfor a group of professionalsadmitted 98. 102. at 38. if Furthermore. causing immensejoy. he went out and acquiredanotheraccount on the Internetand reenteredthe LambdaMOOsome months later. especially with respect to what constituteda propertrial and due process.103 afterthe incidentwas What concernedthe membersof the LambdaMOO behaviorin the future. Bungle was banishedfrom the MOO into oblivion. Id. A Rape in Cyberspace. See Julian Dibbell. Bungle (a pseudonym)committedsexuallyexplicit verbalrapeon a female in chastisedfor his behavior. Id. 103.attributesof a modified persona. Starsingerjabs a steak knife up her ass. A female participantfrom Haverford. at 37-38."' Id. 101. however. 104: 1639 "shunning" or excommunication has been a very effective strategy for activities of citizens who do not conform curtailingthe speech or undesirable of their community.Pennsylvania. Bungle was amongst them once again." displayedon the computerscreensof all MOOersin words that read. Bungle was able to take controlover the personaof the individualand describe in salacious detail sexual behaviorthat was highly offensive to those who were subjectedto the textual renditionof his sexual fantasies. 21. The LambdaMOO on the basis of their academic qualificationsand interestsin multimedia. detailed descriptionand analysis of this "MUD rape"and reactionsto it).Amy Bruckman. privatecyberspacesand privatelyowned informationservice providersmay exclude whomeverthey like. In this case. 1993. See id.whose account identifiedher characteras was "Starsinger.101 (in As Mr.turnedinto a frog).Mr.Whethervirtual communities are to the culturalnorms on justified in excluding undesirables the basis of their speech is a legitimate question to be included in the assessment of the collision between the of deploymentof new media and the preservation First Amendmentvalues. .102As a result of his punishment. Bungle personatook over the characters to in the MOO and attributed them sadisticfantasiesthathighly offendedthem and others.See id. Bungle should be "toaded" fairy-taleterms. arepublic institutions obligatedto forumsfor the discussionof issues that affect the body politic? providepublic A case in point is the virtual rape on the LambdaMOO(MOO). 99. many as fifty or so of the MOOersverballysecondedthe motionto "toad" Bungle.Nonetheless.in Cambridge."? After much discussion and consternation. a public space and was appropriately In createdby otherparticipants the Mr. 100. at 41-42. Bungle laughing evilly in the distance.
Bruckman. Bungle began to shape itself into a sort of referendum the political futureof the MOO. Bungle should not have been "toaded" because he had not brokenany preexistingrules but also urged that a regimented system be inaugurated. see also Dibbell."blocking all of the messages from Mr.Others argued that behavioralstandardswere a matterof individualchoice." on Id.110 on the MOO engaged themselves for many hours. Bungle's behaviorshould merely close their eyes or "hit the @gag command. See Bruckman. 109. a democraticsystem may be sustained 104. 110. but that she was not willing to waive her right to participatein the decisions to This reflectionon the process. they needed to determine how to empower themselves to set standards of behavior within the community they defined.unlike some othercountries. in which the participants those who did.however. Some politicalscientistsbelieve thatdemocracies workbest when only those who care go to the polls. Id. Id. Id.has discussed the agonies of the LambdaMOO aboutthe fate of Mr. supra note 98. .D. parliamentarianin legalist types.Bungle. merely eliminates the message screens. a graduate student at MIT who is writing a Ph."09 to participants spendon the MOOdiscussingwhatto do aboutMr. Bungle from their The latter alternative. a Bungle precipitated crisis in governancethatprompted groupto consider the what kind of social organizationthey wished to live under in the future. at 39. 105.105The experience of witnessing and rejecting the behavior of Mr. supra note 99. Thus.supra note 98. and that those who objected to Mr.Whatconstitutesa fair andequitableprocess for determining who should be permitted to participate in electronic can discussions?How many participants participate effectively in democratic decisions? Is there a rational way to appoint representatives?Should we assume that consensus will be reachedthroughmediationand that those who will do so while those who preferto lurkwill make care enough to participate known their preferencesonly when they become riled up enough to express them? In the United States. Id.1995] Branscomb 1663 cyberspaces.107 from the view of the offended but leaves the real individuals using the and fromthe misrepresentation that "Starsinger" "legba"identitiesunprotected they were the sources of the reprehensible language. dissertationon electronic communication. at 39-41.108 Amy Bruckman."0 Some users. "[T]hequestionof what to do aboutMr."arguedthatMr. 108.citizens are not required to vote. 107. raises some unanswered questions about the viability of computer-mediated communication as a mediumfor a democratic process. Id. 106. at 39. participants concerningtheirdeliberations said that she did not have as much time as many of the other She Bungle.'04Moreover.
"3 a New York neuropsychologistwho had been injured in an automobile The accidentcaused by a drunkdriver. at 94. .an aspectof computer-mediated communication 111. A Case that Has No Cybersolutions cases arisingin cyberspacesthatmay require Thereare many troublesome innovativesolutions."2 female who suggested the special interestgroup was allegedly confined to a She identifiedherself as Joan Sue Green and claimed she was wheelchair. they had to admit that "Joan"had been able to help many of them sort out their problems. Id. Id.they felt violated and betrayed.Nonetheless. at 101.andnetizenswill likely mold theirown responses. Id. a prominent of the discussion group. 115. E. Id. at 103. 117.These may challengethe buddingcyberlawyersto come up with some new remedies. the Internetis a hotbed of on experimentation how to achieve this end. Id. 103. at 104-05. 116.114 women on the electronicdiscussion confided their innermostsentimentsto her.Nonetheless. Lindsay Van Gelder. 118.117 in reality the "Joan" When the other participants realized how they had been fooled by the psychiatrist. Indeed. Ms. they would be the most unlikely computer-mediated candidates to relinquish control over their cyberspaces to an outside geopoliticaljurisdiction. Oct. at 94. 114. at 101. 1985. Indeed. was namedAlex. One such case involved the use of aliases and pseudonyms. 113.116As it turnedout.1664 The Yale Law Journal [Vol. The Strange Case of the ElectronicLover.118 This case is only one of many that have heightenedconcern about the threatof anonymousmessages. peopledwith dedicatedcomputercompetent users who believe that they have discovered a superiorway to without the aid of real achieve consensual governanceof cybercommunities communities. 117.. Alex. a psychiatrist New Yorkpsychiatrist.Theresimply is not yet sufficientexperiencein the Networldto come to any conclusionsaboutthe viability of electronic democracy. 104: 1639 by those with sufficientmotivationto care aboutits future.anddespitethe often abusivebehavior that these names facilitate.11'"Joan" of also quite openly suggested that they meet a "friend" hers. The "Strange Case of the Electronic Lover""' involved an alleged female who suggested the establishmentof an all-female bulletin board on The CompuServe in which women could talk frankly with one another. 112. given the proprietary propensitiesof those who use communication regularly.This practiceis quite common on manybulletinboards.no real solution to this problemhas been found. at 99. Id.Joan discussed her sexual inclinations quite openly and encouragedothers to do the same. Id.
Perhapsthis is because the forum was inhabited at primarilyby females.1995] Branscomb 1665 that probablycan never be completely eliminated. These questions will challenge cybercommunities devise rules and standards govern the to to uses of anonymityin their electronicneighborhoods. Perhapsit is because they all felt embarrassed. least. Certainlythe use of electronicchat channelsby pedophilesto solicit of the companionship young computerusers is one thatmost observerswould abhor. as well as vigorous enforcementof real laws. purported. Similarly. The case of "Joan"has not precipitatedthe irate response from the deceived parties on the CompuServenetworkthat one might have expected. Perhaps they saw no way to impose effective sanctions. It seems easier to evaluate appropriateresponses to anonymity at the extremes. Or they may have merely succumbedto the notion that pseudonymityis a fact of life in the Networld and that users should therefore be careful to scrutinize the messages of unidentifiable correspondents. SELF-GOVERNANCE: POSSIBILITY CYBERJURISDICTION OF Users of cyberspaces are exercising some autonomy over their cybercommunities and beginning to apply their own customs and practices to . It is unlikely that the impostorwould have asserteda First Amendment right to post the messages underan assumed name in this cybercommunity. But the incident demonstratesthe need to determineat what points on the continuum of anonymity censure will fall.the destructiveand potentially dangeroususes of anonymityalso are relatively easily identified and sanctioned.appropriate undesirableand. THE III. uses of anonymitythat should not be discouraged. perhaps. for not recognizingthe imposterin theirmidst. For example. by posting warnings to childrento avoid real meetingswith theirvirtualfriendsuntil they have some verification of their real identities and intentions. or somehow to blame. however.where anonymity becomes a problem. This problem might be mitigated. on consideringthe ratherpromptresponsetaken by active participants some of the Internetnewsgroups.The challenge is to distinguish between the categories and draw the protective prohibitionas narrowlyas possible.Discouraginganonymity would have the therapeutic effect of labeling anonymous messages as There are. some anonymoususers may use their anonymityto be rude and impolite. to be more gentle in theirobjections than their male counterparts.reprehensible.butis not necessarilytotallyunacceptable. however. The questions become more difficult as anonymoususages approachthe center of the continuum. Such solutionswould seem to providea betterway of dealing with this problem than forbidding all uses of aliases and pseudonymsin electronicplaygrounds. but such activity may not qualify for removalfrom the cybercommunity.
Robin Widdison.John Dale. to cyberspacesrather a constitutionmight proclaimthat "'No one can regulate anythinganybody does on the nets.The conferencewas entitled conferenceand messages were dispatchedto <newjuris-l@birds..Abdul Paliwala. 122.121 Although some deplored the thoughtof regulationrearingits ugly headin the Networld.Hardy viewed the proposalas a potentialmeansfor insulatingthe Networldfrom the real world.Thus. David Johnson. Professor Hardy assembled a more selective listserv23 group of approximatelytwenty lawyers to spend several weeks online discussing the possibility of exercising independent jurisdictionover law.Lance Rose. the "NEWJURIS" Participants included the following: Don Berman. the 119.it was not open or available to outsiders.edu>. harmo[n]iousand anarchistday on the nets. 120. and Ian Wilson. 123. As this one was by invitation.AN ELECTRONIC OF HELD CONFERENCE SEPTEMBER-OCTOBER (TrotterHardy ed.124 These pioneersagreed cyberspacesthat might be immuneto territorial to discuss some issues of real-lifeimportin the cyberspaces. Let['s] not do it and tell all the authorit[ar]ian types that we did. David Maher.Eeeeeeeeekkkkkkkkk. including Prodigy. at 2. See." 121..Peter Martin. The gateways enabled participantsto post from a number of sources. A listserv is an e-mail list of people assigned access to a particular discussion group. He explained that a constitution could actually protect the thanmakethemvulnerable excessive externalregulation. Id. ok?"' See id. and anyone may subscribe. More (on file with author) and the conference came to be known as "Cyberia. Cleve Thornton. One such message read: "'Re A Constitutionfor Cyberspace. Others are closed."''122 In September 1993. supra note 8. But before we try to come to an overall conclusion. of the School of Law at the College of William and Mary. 124.Ethan Katsh. at 64 (describinginformal community self-regulationas "Netiquette").Ed Richards. Marc Rotenberg.wm. Professor Hardy summarized many of the responses to his query in a posting entitled Constitutions. and would-be users must obtain permission to be included. Professor Hardy began the 1993 conference with this introduction:"'The question at hand is whether cyberspace should form its own jurisdiction. ProfessorTrotterHardy. CompuServe. 1994). During the Summerof 1993.Bill Marmon. Some are open.especially since the real world was experiencinga progressivetrendtowardderegulation.Magna Cartas.g. What would be good abouttreatingcyberspaceas a jurisdictionof its own? What would be bad?"'Id. we would do well to start thinking in terms of pro's and con's.120 severely criticalpostingsprotestingthe invasionof real-worldlegal metaphors into these new cyberspace communities.Pam Samuelson. Henry Perritt.Anne Branscomb.119 and have specificallyaddressed questionsof cyberjurisdiction the development of cyberlaws.CharlesMerrill. You have ruined an otherwise perfect. e. the participants were assumedto be computerliterateand at least sometimeusersof the Internet othercommercialonline or services. See A NEWJURISDICTION CYBERSPACE? FOR A TRANSCRIPT NEWJURIS. . Messages quoted from this electronic stream are not attributedto particular parties because the participants agreed that this conferencewould be confidentialso that memberscould speak freely without concern about being quotedeither accuratelyor inaccuratelyin other environments. (quoting message as not atypical reaction to his query regardingcyberspaceconstitution). Mike Godwin. began Marshall-Wythe one such conversationby asking whetherit would be possible to develop and Professor Hardy received some enforce a constitution for cyberspace.JerryBerman.and America Online as well as direct accountson the Internet. 104: 1639 Moreover.1666 The Yale Law Journal [Vol.Recognizingthat potential intrusion by territorial jurisdictions is fast approaching. RHEINGOLD. several cyberconversations abusive or troublesome behavior.Shari Steele.
I suspect that we will see and are seeing a .such as whetherprovidersof cyberspacesshouldpost their rules of behavior. 126. gender. and possible means of facilitating dispute resolution within cybercommunities without resortingto real-worldcourts for litigation.126There was also debate and dialogue regardingwho the ultimatelyhad the power to make.127 Othersquestionedwhetherrules of geopoliticalspaces concerningequity of access should apply to cybercommunities whethercybercommunities and could waive external rules against sex. and he cautioned that the laws to govern interactionsin the Networld should be established by those who understand and participate in the electronic world. the questions that are likely to find similarresolutionin both worlds. 133. at 51. 20. Although I find many interestingviews.'31 or historical experiences such as the law of merchantof the Middle Ages. could apply comfortablyto cybercommunities seeking to establish a set of cyberlaws that would not infringe upon the rights of citizens living outside these communities. 1993). shouldbe given a chanceto develop and thatthese buddingcybercommunities test their own rules before the externalauthoritiesexert too heavy a hand to bring them into conformitywith real-worldrules. Id. One participant noted at the outset that the netizens had already begun to develop self-governingjurisdictions. and these discussions in turn implicated questions of the potential for democratic discoursebetween providersand users of the cyberspaces. There is much customary law developing among the in cyberresidents theirvariouscommunitieswithoutmuchhelp from the legal professionwhich has not shown much evidence of interestor participation until recententryof commercial(read "potentialclients") in these new electronicrealms. 127. or racial discrimination. Id.133 125.I find very little comprehensionor discussion of what is actually happening in cyberspaces. Id. Id.130 Therewas also consensusthatexisting legal constructions.125 Participantsin the NEWJURISconference discussed various procedural elements of governance. Id. amend. Id. astute comments.129 Clearly. 128. at 53 (TrotterHardy'ssummaryof issues discussed duringthe conference). such as the law of associations. and sage observationsabout what might become the law of cyberspace.128 Discussion also focused on the rightsof cybercommunities expel members to who abused the privilege of participation. at 23 (posting of author. 129. this author's partingposting was: I have lurked here among you budding cyberlawyerswithout time to offer much comment.1995] Branscomb 1667 participantsturnedto serious considerationof the issues that might present differentproblemsin cyberspacesthanthey do in the real world. at 48-49. See id.Therewas agreement.and adjudicate rules. 132. 24. at 2 (posting of Sept.Sept. In a conferenceon LEXISCounselConnectcalled The Law of the ElectronicRoad.however. 130. 1993). Id. 131.there was no consensus aboutwhat the rules shouldbe in cyberspaces.132 or the experiences with customary internationallaw.
. Id. While the nice people are agreeing. Consensusor Force. 138. while recognizingthatsome law of the wild reigns.MUCKs.1668 The Yale Law Journal [Vol.Computers& Technology Law. 135. however. the ones who won't play ball unless they see a baseball bat about to whack them in the head. Anne Wells Branscomb. posted to LEXIS Counsel Connect. . This is a seething morass of law in gestation that may come up with more innovationssolutions and sanctionsthat we can think up in our more legally orientedminds. However.the most vocal are often not.However. operativerules being promulgatedall the time in cyberspacecommunities: I "Thereare alreadymany such constitutions. Networks and Online Services. 8. recognized that "creating a law of but cyberspace is fraught with difficulty. 136. National and International Topical Forum. Discuss Menu. at 1021. at 1004-06. L. 1994. of course.etc.55 U. Prrr. in summary. 999-1000 (1994). May 18. rather. REv. it would behoove all of us to take a more careful look at what actually exists out there on the thousandsupon thousandsof BBS operatorsand within the newsgroups and SIGs.with each individualsysop some observershave also actingas the LordChancellorandHigh Executioner. 993. 1994."135 this did not deter him from going forwardand sortingout many of the differencesbetween those areasin which geopolitical jurisdiction seems to apply comfortably in cybercommunities(such as defamation)136from those in which it does not (such as imposing a publisher'sresponsibilityfor the content of many useroriginated messages).). Trotter Hardy.to create workable net regimes.For example. and it is wise to rememberthat not all cybercitizensare conformists. I.137 In general. A NEWJURISDICTION CYBERSPACE?.Addendato Discipline. 134. Dec. someone or some group will need to wield the power necessaryto herd malcontentsinto line. FOR supra note 124. some have recognizedthe emerginglaw while not calling it that.Indeed.those inclinedto disagreewill have free run of the net. Professor Hardy endorsed a law coexistingwith statutory governing newly emerging"Lawin Cyberspace" geopolitical spaces. as well as various dispute resolution techniques will be developed to handle and controversiesthat arise within cyberspacesthatdo not intrudeupon geopolitical structures expectations. available online at LEXIS Counsel Connect. I doubt that unforced agreementis sufficient. who are primarily applying existing law to cyberspace controversiesand advising clients how the real world might restrictactivities in cyberspace. Lance Rose. The Law of the ElectronicRoad Seminar(on file with author).MUSEs.138 Othermore open conferenceshave not reachedsuch benign conclusions. at 54. The Proper Legal Regime for "Cyberspace".each developing discipline of cyberlawyers.Discuss Menu. noted that there are real. 104: 1639 Not everyone agreed.. etc.134 Professor Hardy. Id. 137. have only begun to cruise the MUDs (andMOOs. As one of wisely remindedhis more optimisticcolleagues: the participants There are always the hardcases.
[C]omputerusers have grown more adept at effectively writing to each other.but in practice it's more like a town-hall meeting. Lin eds. I'm not sure how one laws (NO FLAMES. albeit one in which everyone has a chance to speak. Finally. . of course.] [c]omputer information services . HEAVILY .computer-mediated This difference was expressed a many-to-many system of distribution. even mailing lists and news groups have some set of TO STICK THETOPIC. have in common today is their reliance on text. . .The very distinction between is readerand "reporter" blurred.1995] Branscomb 1669 seems to have its own credos and rules.Magna Cartas. See NATIONAL COUNCIL AL.. . more.. 40 141.. at 18. while common carriers (such as postal.). from the smallest single-line BBS to the Internet. . telephonic. . . . and facsimile messages) permit single-sourcecommunicationto communication is single or multiplereceivers. . 1994). 140. Mike Godwin. This may sound like anarchy. 1991. [Second.the meansof communication cheapenough for almost everyone to gain access .141 Godwin's model is treasuredby many of the "netizens"who share the faith that the Networld in which they are creating their cybercommunities offers a new opportunityto realize the democraticideals with which the Founding Fathers established and created new communities on the North 139. The First on a New Frontier. are "many-to-many" systems . supra note 120 (quoting response to his initial inquiry).QUILL.. Denning & HerbertS. Constitutions.. as newspapers and broadcasters)permit single-source communication to multiple receivers. bu[t] by how well you write and reason. etc. Hardy. The world of the networks is a true democracy:your influence is measurednot by wealth or position. But computer-based they differ from print media-and broadcastmedia-in two very are important ways.'40 quite eloquently by Mike Godwin. somethingthatthe services share with the traditionalprint media. First."139 What is different about communication in cybercommunities from for is in communication geopoliticalcommunities the opportunity an individual Mass media (such to become a produceras well as a receiverof information. This relianceon the printedwordis.In contrast. Sept. 19. no one is shouteddown. The "filtering"function performedby newspapereditors is left to the readers.. telegraphic. These laws are frequently enforced. would unify all such rules undera universalor meta set of rules. and people have time to develop and explain their ideas. RIGHTSAND RESPONSIBILMES PARTICIPANTS RESEARCH Er OF IN NETWORKED COMMUNITIES(DorothyE. who are also contributors.. Legal Counsel for the ElectronicFrontier Foundation: What all these systems.
you would need that system somehow to accelerate the seemingly millennial progress of legal development. 15.with their limited interactiveresponses throughletters to the communicationoffers open editor and talk television. Jan. With the opportunity anyone with access to a computerconnected to a modem and a telecommunications system to reachanybodyor everybody else so equipped at any time. 1995. at S32 ("If 1994 was the Year of the Internet. anywhere.the politicalpot of gold at the end of the rainbow seems reachablewithinthe foreseeablefuture. THREATSTO AN ONLINE AGORA: RETHINKINGSOME PRINCIPLESOF FIRST AMENDMENTPRACTICE Many users and proponentsof online computercommunicationtout its capability as the best means by which to achieve the goals of a democratic for society. Jan. see also MarkEckenwiler. LEGAL TIMES.CriminalLaw and the Internet. 23. Quoted in Tony Mauro.but it actuallyexists. It's called the Internet. the many-to-many form of all communicationoutperforms otherexisting media in its potentialutility for Far from the mass-media mode of newspapers and electronic democracy. True. USA by Nov. computer-mediated access to uploading messages (speech) and open access to downloading information (also speech). You would need a large. at IA. complex social system that lies outside of all other legal authorities.RidingHerd On-Line:Legal Notions Transformed Digital Age. . BenjaminWittes.BenjaminWittes. but the golden age for lawyers is just dawning.so you could witness more than a mere momentof the process.given a commitment universal to access at least through publicly available terminals and computer-assisted 142.'43 IV. the 143. 104: 1639 Americancontinent.however.althoughit is essentiallyno differentfromthe price of newsprintor television sets. Nonetheless.1995 promises to be the Year of Legal Questions About the Internet. at S27. there may be a cost associated with this capability.Law in Cyberspace. 23. 1995.1670 The Yale Law Journal [Vol. Moreover.andclashes will continueto plaguethe pioneersand settlers as the abuses of cyberspacescome to be viewed as growth opportunities for litigantsand lawyers.The road is rocky. a lawyer who moderatesan online forum for lawyers. TIMES."). This hypothetical system might seem like a social scientist's fantasy. broadcasting. observed that the role of the lawyers might have been usurpedby the netizens of cyberspaces: Suppose you wantedto witness the birthand developmentof a legal system.This is not an unrulymodel or electronicanarchybut one of civil and thoughtfuldiscourseleading to consensualgovernance.LEGAL TODAY."142 In contrastto Hardy'sprediction.As ProfessorHardyhas commented: "Thegolden age of cyberspace is ending.Witnessing Birthof a Legal Systemon the Net. 1994.
v. e. 146. BRUCE LEHMAN. 395 U. See. 1993) (upholding personal attack portion of fairness doctrine requiring television and radio broadcasters to provide right of reply). there is a need to find some alternativeto strict liability for providers of informationservices without imposing an providerliability.Should strict liability for all electronic transmissionbecome the accepted norm. Prodigy. FCC.144 service providersmightscrambleto hide behindcontracts.S.CompuServe. Cir. The generalcounsels of both ProdigyandAmericaOnlinehave explainedthatthey thanofferingdefamedpartiesan opportunity see no otherviable alternative to 144.. 147. A. and the tens of thousands of sysops demonstratea remarkablydiverse marketplaceof ideas bubbling up all over the globe. INTELLECTUAL PROPERTY AND THE NATIONAL INFORMATION INFRASTRUCTURE: A PRELIMINARY DRAFT OF THE REPORT OF THE WORKING GROUP ON INTELLECTUAL PROPERTY RIGHTS.monitoring of all content. 395 U. obligationto monitorall messagesin orderto avoid incurring acceptablein Thus.3d 1430 (8th Cir. This makes the Networld an attractiveconduit for democratic discourse. FCC.S. 11 F.Liabilityinsurance all and the burdenof monitoring messagesbeforepostingthemtoo demanding. Arkansas AFL-CIO v.148 seems eminently reasonable. 145. club or a small business.S. AmericaOnline. FCC.145and tried. FCC. 418 U. Syracuse Peace Council v. INFORMATION INFRASTRUCTURE TASK FORCE 120-23 (1994) (discussing electronic transmissions as means of infringing copyrights).C.To foreclose in this manner a most interesting experiment in democratic discourse would be dishearteningand disillusioning. Tornillo. v. Red Lion Broadcasting Co.Is it not possible to find some other way of communications abusesof computer-mediated systems?Following moderating are some suggestions for doing so. approved. v.1995] Branscomb 1671 education. the returnto a right of reply. Nonetheless.and censorshipof messages before posting. Such developments would effectively exclude the majorityof the smallersysops who may operate a boardmainly for theirown personalinterestsor as an appendageto a hobby would be prohibitivelyexpensive. affirmedas constitutionally Red Lion Broadcasting Co.146 and then abandoned (at least partially)147 in the broadcastingmedia. Indeed. A Right of Replyfor Defamation A right of reply has been urged and rejected in the print media. this uninhibitedcauldronof opinion becomes threatened. 241 (1974). As the offended turn to their lawyers to redress their grievances.the experiencesof Internet. waivers. The difficultyhas become one of offended partiesseeking to inhibitthe speech of the offending posters of messages. 1989) (rejecting management of "fairness doctrine"). Miami Herald Publishing Co. . 367. the possibility of facing protracted litigationtoo onerous. 148. 367 (1969).g. The Networld has an for abundanceof opportunities full and uninhibited speech. 867 F.2d 654 (D.
cybercommunitiesto patrol their own boundarieseven when the behavior does not have a deleteriousimpactupon the real within the cybercommunity world.Such pornographic images as were involved in this case. and TechnologicalAspects of ComputerUse and Abuse.not distributed.If the electronicmessagingservices arerequired accept to in responsibility for all of their content-as are "publishers" the print and broadcastingworld-then a budding electronic democracy of free speech operatingin an electronic "publicforum"may be lost. fromlocal to virtualcommunitywould seem reasonable Changingthe standard as long as the users of the networkedimages are a containeduser group of consentingadultswho are screenedfor admissionto the circle of participants.may be lost as an uninhibited"marketplace ideas. 1992).the user createsno local disturbance assumingthatthe images merely are viewed and not downloaded.GeneralCounsel.C. (Nov. 104: 1639 come online and defend themselves in the channel where the alleged defamationhas taken place. at the Workshopon Rights and Responsibilities of Participantsin Networked Communities.1672 The Yale Law Journal [Vol. 7-9. General Counsel.as modeledon the ancientagora. 1994). unless one can arguethat exposureof adultsto the images creates a clear and presentdangerto the local community. where the very large amount of traffic makes it almost impossible for an information providerto monitor. For a fuller discussion of the problemsof the "publicforum"concept. Conferenceon Legal. Even then. . Conversationwith George Perry.AmericaOnline. 150. create no hann to any local population unless and until the local population becomes a partof the computer-mediated traffic. Whetherthis case fits into this categoryis debatable."150 of B. At the very least.but at a minimum 149. at NationalConferenceof Lawyers and Scientists. 5-6.D. in Washington. coming as they do from diverse locations all over the globe.supra note 59. Prodigy. (Oct. Otherwisethe public forum. Inc. The Santa Rosa Junior College bulletin board case offers another to of opportunity review whetherthe standards the geopoliticaljurisdictionor the standards of the cybercommunity should govern behavior in the This case raises substantialdoubt about the autonomy of cybercommunity.such as inciting to rape or assault. Conversationwith Ellen Kirsh. Ethical. Displacementof the Local Community's Standardsby the Standards VirtualCommunity's The Amateur Action case has highlighted the difficulty of applying to geographicallylocal communitystandards a computerbulletinboard. see Goldstone. it should become possible for electronicinformation providersto declare some cyberspacesto be "publicforums"where messages may be circulatedfreely. in Queenstown.149 To do otherwise would have a chilling effect on the medium.Md..or once downloaded.
and Confidentiality C.1995] Branscomb 1673 it affords anothervehicle by which to explore issues of communitydefinition and self-governance. Privacy scholarsshould also two be moreprecise in distinguishing differenttypes of information-autonomy problems. or locker rooms. First Amendment Rights of Associationand Access Online The SOLO bulletin board incident at Santa Rosa Junior College has precipitated a reappraisalof the responsibilities of network managers to monitor and patrol the traffic within the computer-mediated setting. however. universalsolutionsto all of the new questions.The second to into categoryinvolves groupassertionsof autonomy block outsideintrusions that they wish to limit to certaintypes of informationtransfers. D. First Amendmentscholarscould engage in a useful public service if they would concentrateon defining these emerging legal boundariesratherthan criticizing and rejecting the meager legal structuresthat currently exist.The first paradigmconcernsthose releases of informationthat are deserving of some level of legally enforceable confidentiality. Practicalsolutionswould be more speedilydevised if it were possible to focus aboutwhatconstitutesa sanctifiedpersonalspace aroundwhich the arguments an individualmay draw an electronicboundary. There is a great deal of confusion about what privacy means.without seeking to find simple.however. A difficult challenge. except within private networks offered and funded by private entities (such as individual bulletin boardproviders). cyberspaces The latter situationsbear some resemblanceto the zoning of real property.It is also apparent publicexpectationsof some modicum Whatthis space constitutes of sanctityof personalspace shouldbe guaranteed. then there can be no such thing as a privateelectronic space. "infozoning" may become a growth area of the law. what can information be protectedfromdisclosure. Thus.Educationalinstitutionsdo not monitorthe speech of their studentswithin their dormitory rooms. dining halls.andwhetherunwantedmessages into privatespaces. If the provideris to be held accountablefor how an electronicspace is being used. It is clear. in a legal sense and how muchcontrolover it the individualmay exert has not yet been determined. Defining Information Privacy as Sanctity. Why should it be necessary to monitor electronic bulletin boards? .Autonomy. playing fields.that be preventedfrom intruding may there is growing public demandfor assurancesthat personalautonomyover privateinformationwill be respectedand that personaltransmissionswill be that kept confidential. is to treat different cyberproblemsdifferently.
and religious groups have legitimate reasons for desiring some autonomyover electronic space in which to discuss group-specificissues. there is neither compulsion to read nor any cost associated with receiving such reading material. This assumption is not entirely accurate since many communities charge for the pickup of wastepaper and garbage. In addition. however. 1990. Should CommercialMessages Be Permittedin E-mail Traffic? of The experiencewith the overabundance commercialmessages fromthe Canterand Siegel firm in Phoenixhas highlightedthe difficultiesof assuming that the practices acceptable in other media will transfer comfortably to electronic media.other than the cost of the newspaper itself. 735-38 (1970).TIME. much as advertisements are placed in newspapers. exists on the Internet and may be facilitated by commercial informationservice providers.and some waste services chargeby the weight or numberof bags. takes time it to download messages from the e-mail depository.Althoughthe eye may scan advertisements in the newspaper columns. because such inundationis disruptive. Home pages on the World Wide Web or similar servers would provide adequateaccess to electronicviewers who may at their option choose to seek out the advertisements and services of providerswith whom 151. 152."5' Only the poster of the paper message pays for delivery. however. 26. In the context of electronic mail.S.and surely an invasion of the sanctitythat the SupremeCourtpurportedly in protected Rowanv. E. 104: 1639 Surelythereis a rationalefor protecting freedomof associationand speech in the sense of preventingfederallyfundedentitiesfrom interfering with what is spoken in an electronicspace. 397 U." the currentexpectationis that it can be tossed into the wastepaperbasket unopenedwithout cost to the recipient. Prohibitingthe posting of e-mail advertisementsinto newsgroups with assigned topics under discussion would seem reasonable. the opportunityto place advertising copy into the electronic space. environmentalists protest the numberof trees cut down in a useless deploymentof paperthat is unreadand wasted. . 728. Furthermore. at 62. No one would condonederogatory speech by males about females or vice versa. Read This!!!!!!!!.intrusive. The authorlives in such a community. national. the recipient pays for the service in which the message is posted and often not only is chargedfor the space but also has a limited space in which to file incoming messages. Nov. if large numbersof people followed the example of Canter and Siegel in "spamming"every newsgroupin sight. See Jill Smolowe.racial.152 In actuality. UnitedStatesPost Office Department.1674 The Yale Law Journal [Vol. With "junkmail.Thus. but the speech involved in the SOLO case seems to fall in the category of good mannersand conduct expected of a desirablememberof the collegiate communityratherthan an infringement of federallyprotectedcivil rights. the results would be intolerable.Gender-specific. 64.
and demarcating definingthe appropriate the electronic channels in which such uses would be acceptable. .must know who their customersare in orderto bill them or their legal representatives or agents. or harass any person . 314.however. . as well as the hostility to anonymity-stripping devices such as the ClipperChip andWireTap.Anonymityshouldnot be outlawedas a general or principle.Permitting anonymityfor the purposeof removing for any vestige of accountability abusivebehavior. S. commercialinformation vendorsand service providerswould Presumably.1995] Branscomb 1675 they wish to deal.) to prohibitanonymousmessages "with the intent to annoy. Furthermore.are not directedat ensuringanonymity. be free to set their own rules governingthe anonymousposting of messages.The introductionof a bill into the 104th Congress by SenatorJim Exon (D-Neb. A nation-statewould have to cooperatein applyingits own laws. of they reflect efforts to protectthe confidentiality message content from the intrusive eyes of outsiders and to protect the transmissionof a message between consentingparties. Rather. 104th Cong.is not likely to be toleratedin the Networld. includingcommercialanonymousremailers. threaten. Consequently.The agitation to regardingthe use of high levels of cryptography protect the "privacy"of electronic messages should not be confused with the question of true anonymityof message sources.which some define as a right to genuine anonymity. ? 2(a)(1)(B) (1995). F.there are varyinglevels of anonymity.. The anonymityquestion is furthermuddiedby a great deal of confusion about what constitutes privacy in electronic communication. but it must be understood their perceived right to personalautonomy. the local or national laws of the host nation or state could the providemechanismsfor subpoenaing identitiesof customerswho abusethe privileges of pseudonymityand contravenelocal law. but some nationsmight refuse to 153.The "pretty good privacy"softwarefavoredby Internetusers. that are rationalandjustifiable. . 1st Sess.prohibiting the delivery of commercial messages to e-mail destinations would seem consistent with the First Amendment'sgoal of encouraginga diversityof informationsources without e-mailor autonomous-group intruding uponthe sanctityof personal cyberspaces. uses of aliases and pseudonyms. ShouldAnonymousMessages Be Discouraged? Questions about the proprietyof anonymityin the cyberspacesmust be evaluatedalong a continuum. at least pseudonymity. who receives the communication' has prompteda spate of controversialdiscussions on the Internet. commercialservices. abuse. Thus.Whetheror not anonymityis to be permitted even or the particularcircumstancesunder which it is encouraged depends upon that many netizens are unlikely to waive deployed.
See Rowan. recipientshave some freedom of choice to refuse to accept such messages. technologicalmeans for blocking messages from such servers still exist.J. systems could be designed to make these screeningdevices easy to deploy. Regulatoryagencies or national legislation could requirethat electronic telecommunication providersdesign their software to facilitatesuch freedomof choice over unwantedmessages.1676 The Yale Law Journal [Vol. COMM.. e.Nevertheless.156 electronic coding of messages that will permit freedom of Furthermore. 156.supra note 20.Legislators 154.Jeffersonon the Internet.In the United States. then no guaranteedright of access to the electronic media may exist.it neither guaranteesthat such speech will be heard nor allows such speech to be delivered into a private space.abusive posters of anonymousmessages must not be permittedto insulatethemselves from accountabilityfor their wrongdoing. 397 U.g.47 FED. 285 (1994).154 Thus. L. 104: 1639 do so. Network managers have devised "kill files" and "bozo filters" to screen out messages from offending sources.this right to speak in a public forum does not guaranteethe right to enter into space when thatpublisherretainsthe rightover entryinto providedby a "publisher" that space. V. Guidelines should be refined so as to permit the use of aliases andpseudonymsin electronicplaygrounds to preservethe privilege and of posting anonymous messages when doing so serves some useful public purposelike whistle-blowing. If all electronictransport providersare also informationprovidersand claim the censorship rights that have been grantedother mass media. See ELECTRONIC FRONTIER FOUND. ? 4. The United States may find itself in a dilemma if the common carrierconcept falls into disuse and electronic transportprovidersare not requiredto accept messages (as telephone networksand postal services are requiredto do today). at 735-38. Although individual users may need greater computer competence than most now possess. as long as they can be identifiedas coming from an anonymoussource thatcan be deflected. however. Even if anonymousremailersare toleratedbecause they provide a useful service or are sufferedbecausethereis no meaningful mechanismfor enforcing a prohibitionagainst them.'55 Although the First Amendment protects individuals from infringementof speech by the government.the FirstAmendment's purposeis to providepublicforumsinto which messages may be insertedwithoutcensorship. Nicholas Johnson.2 (explaining how kill files work and how to employ them). offering instead a national data haven to attract the business of customersdesiringto keep all of theiractivitieson the global grid unidentified. no one has the right to inflict materialupon an unwillingreceiver. CONCLUSIONS First Amendment lawyers should be wary of applying current legal to metaphors the newerelectroniccommunication spaces withoutsubstantially immersingthemselvesin the experienceof using such cyberspaces..S. . Instead.To preserveorderand civility. 155.and nothingin the First Amendmentcontradictsthis basic protectionof the sanctityof personal space. See. 281. choice to deal with anonymousmessages or thatwill refuse to deal with them should be devised.
As one commentatorremarked: [T]he Internetis . There are also costs to findingthe time to searchfor and downloadthe information that available by sources preparedto underwritetheir own costs of is made processing and uploading information. and to learning how to manipulatethe software that makes it possible to engage in electronic discourse.1995] Branscomb 1677 should be equally cautious.'57 is tempting and easy to say that the First It Amendmentis an absolutethatrequiresa governmental "handsoff' policy for all forms of communicationand that the scarcity doctrine was a terrible mistake. 213." of The flow of informationis not free financially. Nonetheless. a thoroughlook throughthe magnifyingglass will reveal 157.. 220-23. Bazelon.Perhapsthe Networldwill not be the salvationof democracyand will not bringon the millenniumfor the First Amendment'spromiseof an uninhibited"marketplace ideas. to buying equipmentto access those systems. 158.thereis muchroomfor cynicism. observed. 228.They are only a small portionof what is actuallyhappening. who presided over many appeals in communicationcases. As Judge David Bazelon. and fools in cyberspacesbecause they make good readingand viewing. "[T]he problem is not scarcityof frequenciesbut ratherthe particularly powerful natureof TV communication.J. or skills to engage in a worldwide dialogue on the Networld of the future.'58 There is no reasonto believe thatcomputer-mediated communication will be any less powerful a medium for the manipulationof human behavior.if we comparethe "hype"with which was offered to the public in the early 1970's with the cable television sources and genres availableon this multiplicity duplicationof programming of channelstoday. to the extent that Congress attemptsto impose furthercontrols on the Net.supra note 142. should not be permittedto override the beneficialuses of these new computer-mediated communications systems. There are costs to building transmission systems. Eckenwiler.nor is it immuneto other constraints. however.and lower transmissioncosts with faster delivery and greaterscope of coverage seem reasonablyattainable. The peccadilloes of the few.. we regulatebroadcastingnot because it is scarce but because it is the most powerful form of communication and of methodologyfor manipulation humanbehavioryet known to mankind. . a vehicle for mass social interactionwith its own well-developedculture.Despite the problems of access and abuse. 1975 DUKEL. money. More choice and control in the hands of individualusers seem assured. of althoughit does seem to offer a proliferation communication channelsthat carry the hope of genuine diversity and both personaland group autonomy. FCC Regulation of the Telecommunications Press.Not everyone will have the time.clowns. such efforts runcounterto the self-policingculturethathas emergedin manyquarters cyberspace-it will of have to do so with a fuller understanding both of the Internet'stechnical aspects and of its culturalnorms." at 228. Thus. The media tend to spot and magnify the activities of miscreants. Id. David L. equipment. at S32.
but the inability to ensure that such will be the case is no reason for reticence in putting forth our own views of how the shouldbe governed. public service data bases. and telecommunications. have some very strongopinions abouthow they wish to develop the "virtual communities" they are building.They do not welcome intruders unacquainted with what they consider to be a promising frontier of new and exciting to opportunities build more open and diverse discourseamong peoples of all races.colors.Instead.legislators.Thus. The traffic on this grid will be global. and volunteersspendinghoursat theirkeyboardsuploadingthe treasuresof world literatureso that anyone across the global grid may access them. the First Amendmentwill be only one smallway of prohibiting heavy-handed regulation by one national entity-the United States of America. .judges. will not witheraway with the mergingof the media into a digital bitstream. bulletin boards. and sometimesnot at all. The current legal landscape is complex and diverse.Computer-mediated communicationoffers an environment unlike any heretofore made available. Other nations may follow our lead.some-to-some.Current cybercommunities usersof these spaces. Generic principles applied uniformly will not suffice to govern the of informationsuperhighways the future. not merely national. such as publishing. genders. broadcasting.however. Volunteers who compile the frequentlyaskedquestions(FAQs)are sharingtheirexpertise willingly and without charge to help others become familiarwith these new informationsuperhighways.andpredilections. newsletters. town meetings.these media themselves are evidence that the law needs to be refined to ensure access and equity in varying circumstances. cable. radio talk shows.the outcome of their efforts will become more acceptableand desirable. Lawyers. Indeed. and almost any other varietyof people-to-peoplecommunication that information are entrepreneurs likely to devise.the principlesof the FirstAmendmentare alive and well in many cybercommunities the throughout Networld. and juries will continue to look for appropriate metaphorsand apply them to the cyberspaces-sometimes willy-nilly.The landlordsof cyberspaceswill be no more uniformly in agreementthan the landlordsof real spaces.1678 The Yale Law Journal [Vol. with the potential for genuinely interactive and cooperative innovation.litigants. 104: 1639 a seething hotbed of democraticdiscourse. To the extentthatthey do so with an open mind and with actualexposureto the electroniccommercethatthey are tryingto govern. To saddle such promise with an overload of baggage from a bygone era would be tragic. and many-to-many. The finely honed fair principlesdevelopedto determine andequitablegovernance the different of technologies of communication. communication a diverse mix of electronicconferis Computer-mediated ences. are Cyberspaces populated peopleby to-people communication-including person-to-person. sometimes more thoughtfully.for the latterwill be at least as rich and vast a technologicallandscapeas the many media we see deployedtoday.
As lawyers flock to their assistance. to in Legislatorsmustbe thoughtful theirapproach rigidstatutory If a rich diversity of informationresourcesis to be made available. These new of cyberspacesoffer a preciouslaboratory law in gestation. requirements.Many are already doing so. and if a is information marketplace to be realized. .developinglargely without the aid of lawyers. let us hope that they do so with humility and with the understanding the futureneed not necessarilyfollow the path of the past.1995] Branscomb 1679 Lawyers and their clients must be cautiousin their approachto litigation.users flourishingcomputer-mediated appropriate must be willing to devote time and patienceto devise "netiquette" for their varying circumstances. Judges and juries must forbearin casting the net of existing laws too wide.