Cyberspace law

Dan Lester dan at
Mon Dec 1 11:49:20 EST 1997

Also from NetHappenings.  

Comments, anyone?


Law professor studying Internet legal issues

  Philadelphia Inquirer


PHILADELPHIA  When Temple University's new cyberspace law
professor, David Post, describes it, the online world sounds like a
foreign country, a wilderness of frontier outposts, an alien
landscape far away from the physical, fleshandblood universe.

The Internet, he says, is ``a newly discovered island, a new planet
that needs law, to be sure, just as an island needs law.''

Post, 46, a former associate professor at the Georgetown University
Law Center, moved to Temple Law School this fall to help build a new
program in Internet legal studies.

A youthful and informal bearded scholar in round glasses, rumpled
sweater and dingy canvas sneakers, he has taken his lumps for saying
cyberspace is so different that state and national laws should not be
extended to govern that virtual island.

But even his critics commend him for helping to articulate the
libertarian zeitgeist of the digital generation. In papers he has
written alone or with a Washington lawyer and fellow Internet
enthusiast, David Johnson, Post has spelled out the popular vision of
cyberspace as a wired nation without borders. Each ``community'' on
the Internet, be it an online service such as America Online, or a
group of transient visitors to a chat room, should make its own rules
and be left to thrive or wither, he has said.

``He's performed a service even if I don't agree with it,'' said A.
Michael Froomkin, an Internet law expert at the University of Miami
Law School.

According to Post, cyberspace lacks the rule of law in the
traditional sense of a written legal code, lawmen and courts of

That doesn't mean, however, that there is no law in cyberspace. On
the contrary, he said, the online world is ruled mainly by the
computer hardware and software that makes it run  and, so far, by
the ``tekkies'' who create them.

``On a network on which the only things moving around are ones and
zeros, technical standards become like law,'' Post said.

Post, who began his professional life as a Yale anthropologist
studying the behavior of baboons in Africa, sees the Internet as a
revolutionary convergence of technical and social forces sure to foil
the efforts of bureaucratic regulators, members of Congress and other
wouldbe meddlers.

The Internet ``is at its most powerful in destroying existing
hierarchies around which we organize political, social and commercial
life,'' he said in a keynote address at a conference on computer
policy and law at Cornell University in July.

The idea that the Internet can best regulate itself has been knocking
around for a long time. It was reinforced earlier this year when the
Supreme Court overturned the Communications Decency Act  which
sought to limit sexually explicit material online  as a violation
of free speech.

The law was one of the first attempts to extend existing statutes
into cyberspace. But the high court said, in part, that technology
was a better answer than legislation, because parents and educators
could use computer software to ``filter'' away unwanted Internet

For Post the Internet represents ``the death of sovereignty.'' What
gives the United States or any other nation the right ``to apply its
law to a transaction that is, in effect, happening everywhere at the
same time?'' he asked. ``The central question is, who makes the
rules? What lawmaker should be responsible for the rules regarding
anything that goes on in cyberspace?''

Post said he came to Temple from Georgetown University this fall to
join fellow cyberspace expert Amy H. Boss in an effort to build a
program in Internet law. Boss, at Temple since 1989, specializes in
electronic commerce. She was a key architect of the legal section of
a White House report on global electronic commerce released in July.

That report also reflects a preference for selfregulation, rather
than government oversight of the Internet.

``New things like this  online Internet law  offer the
opportunity for schools to sort of leapfrog, to become really
prominent in an area quickly,'' he said.

Two years ago Post helped found the Cyberspace Law Institute, a
loosely organized group of about 30 top legal and technical scholars
who engage in online discussion of such matters as Internet
defamation, or ``flaming,'' copyrights online and ``netizenship.''

But like cyberspace itself, said Post, the Cyberspace Law Institute
doesn't inhabit any physical place.

``It has no office, it has a Web site. It was conceived as having no
assets. It's not incorporated. Who would incorporate it? It's a Net
creature, one of those collaborative enterprises that are very
fluid,'' he said.

Some members of the group take exception to the views of Post and his
closest colleagues.

``David believes that you have to treat (the Internet) as a separate
place, and I think that's wrong,'' said Mark Lemley, a professor at
the University of Texas Law School who is a Cyberspace Law Institute
fellow and who debated Post in Austin last spring.

``There are, unquestionably, differences between the Internet and the
physical world, but they aren't separate ... and by and large the
laws written for the real world are laws that make reasonable sense
in cyberspace as well,'' Lemley said.

For example, Lemley said, there is the question whether people can be
brought into courts outside the places where they live for things
they may do on the Internet. ``He'd like to do it online, to create
what he has called a `virtual magistrate' to resolve online disputes.
I don't think every case is going to be amenable to being resolved
that way.''

``We don't have newspaper courts for newspapers and telephone courts
for telephones,'' Lemley said.

For almost a year, ending last spring, the Institute played host to
an online course, Cyberspace Law for NonLawyers, that was overseen
by Post, Lawrence Lessig of Harvard Law School, and Eugene Volokh of
UCLA Law School. Twentyfivethousand people signed up.

``There were zillions of people yelling and screaming'' on the
Website bulletin board where students were encouraged to post
comments and questions, Post recalled. He said he felt overwhelmed by
the task of responding.

``They weren't paying me enough. They weren't paying me anything,''
he said. ``If anyone knows how to run a class with 25,000 students, I
want to hear about it ... There are only so many hours in a day.''

Since September, Post has split his time between Philadelphia and his
home in Washington, D.C., where his wife, Nancy Birdsall, is
executive vice president of the InterAmerican Development Bank, and
where their middleschool son and teenage daughter attend schools
they did not wish to leave.

Post has had a varied career. He left anthropology in the early 1980s
to study law. He holds a law degree from Georgetown University, and,
after graduation, clerked for Ruth Bader Ginsburg, then a federal
appeals court judge. He practiced law for several years in Washington
before Ginsburg recalled him in 1993 to clerk for her a second time
 in the Supreme Court.

``People expect me to be younger,'' he said, ``because I'm always
just starting.''

Dan Lester, 3577 East Pecan, Boise, Idaho 83716-7115 USA
dan at
Albertsons Library at Boise State, the University for Idaho
Sent me a postcard of a library yet?  You'll get something nice in return.   
In the kingdom of the blind, the one-eyed man is king.  Erasmus, 1534

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