What is cyberlaw?
I've been working on my cyberlaw syllabus over the last week, adding in all the things I want to read with my students. (There will be a huge supplement to the casebook.) Here's the challenge with which I need help: cyberlaw is usually taught as a mish-mosh of modules — a drop of privacy, a smattering of trademark, a heh-heh at the Barlow manifesto, a moment of copyright (and, in my case, a big dollop of the broadcast flag/analog hole debate), and some bemusement at internet governance.
But maybe the real subject is not the application of terrestrial law to the internet. Maybe that's not even interesting. Maybe we need to study what's emerging online and how or whether it consists of sets of rules that individuals and ISPs and corporations and governments are following. But how do I reveal that? How do we find it in a law school classroom? What's on the exam (a frequent question I get)?
Send me samples of what a real cyberlaw course should cover. Maybe I should drop all this cybersquatting stuff and the old funny historical cases (and even the new funny cases), much as I enjoy them. Maybe we should spend the whole term on ICANN and the broadcast flag and the CDT v. Pappert case.
Let me know. This is an authentic plea for commentary.
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12 Responses to “What is cyberlaw?”
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To your mish-mosh cake, add two tablespoons of jurisdiction.
– Bret
done. still a mish-mosh.
I'm not sure it's a unifying theme for the mish-mosh, but my take is that the who, what, where, and when of our work as attorneys has fundamentally changed as a result of the Internet: Who (identity, anonymity, privacy, community), what (digital rights, digital media), where (distributed architecture, P2P, jurisdiction), and when (speed, permanence). When thinking about problems of “Internet law,” I try to touch each of the 'four Ws'.
– Bret
A few sources of other info, though no answers: all past Berkman Center-taught classes are available online: http://cyber.law.harvard.edu/home/hls_courses2 and http://cyber.law.harvard.edu/home/course_archives. There's also an emerging set of materials in the H2O system's “Idea Exchange” which is meant to help teachers in our space to make their syllabus — though it's very much a work in progress (http://h2o.law.harvard.edu).
This takes me back to 1995, when I helped Peggy Radin put together the first cyberlaw course at Stanford Law School. You may want to consider the approach Stanford has taken in the years since — cyberlaw has now been divided into 3 courses: (1) E-Commerce; (2) Free Expression in Cyberspace; (3) IP in Cyberspace. So you solve the mish-mosh by separating the mish from the mosh, then teaching a whole semester about either mish or mosh.
While I like high-minded efforts to synthesize some unified field theory of cyberlaw (and James Grimmelman has made a nice start on his blog), I think students may be better served by the survey. Let them come up with their own synthesis.
At the other extreme, I think it would be fun to take a “case study” approach and try to teach aspects of cyberlaw through a handful of real-world disputes (like broadcast flag, DVD, or spam).
I will be in your cyberlaw class, I'm only one of many but…
Cybersquatting issues seem to have been dealt with, and those students who have taken trademark with Prof. Beebe (at least) got a dose of it then.
I like media regulation and internet governance issues. The broadcast flag debate is really interesting and I don't think you'll have more than a smattering of students who will have ever heard of it, so that'll be fun. I believe that most students expect you'll cover some privacy issues, and they will probably be interested in discussing the downloading of copyrighted materials (since most of them likely do it).
Whatever you come up with, I'm sure it'll be a great class and I'm looking forward to it, see you there.
I like Fred's (and Stanford's) suggestion of dividing things up into modules. I also like the case study approach. And I like the idea of having a technology course — where you really learn how routers and protocols and networks (different kinds of networks) work. I like it all! I think in later years we'll end up with a much broader group of courses. For the moment, we're starting with a survey and a heavy dose of technology. I'll keep letting you know how it's going (and students will too).
You really should add electronic evidence / forensics with a grain of computer security to the mish-mosh. This has the potential of huge practical importance in the future professional live of you students - because knowing what evidence is available and how it is secured is enormly helpful in any argument. It also should keep them from using unscrubbed MS-Word documents for anything.
After all, isn't the 'cyberlaw' something that should deal only with new topics, I mean those that can only be related to the 'cyberworld', and do not exist in the 'physical space': hyperlinks, indexing by search tools, domain names, etc?
I start with Frank Easterbrook's question, as relayed by Larry Lessig at the beginning of “The Law of the Horse“: Is “Internet Law” no more coherent a subject than the “Law of the Horse”? Then I do each of the modules — but after each case, asking, what is it about the Internet (if anything) that makes this case different? Is a new rule needed? Or can you simply apply existing trademark/jurisdiction/First Amendment law here? What method do you use to decide that question? If there's anything unique about cyberlaw, it lies in the answer to this meta-question.
Susan, In response to your authentic plea for commentary, I am contributing a copy of my post for today, and hoping that one day you'll blog your thoughts on these issues (the underlined word 'teachers' is linked to your blog):
PRIVACY AND SECURITY ISSUES
There is no such thing as privacy
Following my post on Jan 20 re privacy issues, and in response to the comments received, I looked at some pictures published by BBC News online (my homepage). It's unlikely that most of the people pictured were aware of having been photographed. Millions of such pictures are in the public domain. It'd be ridiculous for all those people to sue. There really is no such thing as privacy in public places. The moment you step outside of your home, your image is in the public domain. So, on reflection, I don't think that the Chinese couple will win in court. Might they stand a better chance if they had been photographed kissing in the garden of their home? I don't think so. Here's why:
How does one define private life and personal space? What can one do about someone using zoom lenses to photograph a person behind the window of their own home, in their garden etc? *Home* for many people could be within the walls of public buildings like hotels, hospitals, care homes, military bases, boarding schools, prisons, etc. People set up home in boats, tents and caravans. Home can be in a presidential palace, mud hut or cardboard box. Some nomads live under the stars.
Big Brother arrived years ago. We are the public domain. So, what exactly is a private life? Is it secret stuff, wrongdoings, skeletons in the closet, things to be hidden in the dark; personal details on financial, medical, DNA, our naked selves? If we think we conduct our private life in private, what's to stop anyone witnessing this private life blogging about it, like the kiss-and-tell and what-the-butler-saw sort of stories communicated by the traditional media. There is no such thing as real privacy.
However, there are such things as security issues. Huge safeguards exist for protecting things and people en masse. But what about our security as individuals, and the safeguards to protect us against opportunists and predators, especially on the Internet? It's easy to imagine that whole new careers and businesses will be built on these issues. Fields like Cyberlaw are a new frontier, the teachers and students of which are breaking new ground. Hopefully, close attention is being paid to the development of safeguards that enable individual citizens to protect their personal security. It may be just a matter of time before the things that are unthinkable now, start to happen in cyberspace.
For instance, on October 1 of last year, I blogged the BBC's report of an ambulance worker in England who allegedly used a mobile phone to take a photograph of a corpse from a “road traffic incident”. Apparently, the victim was a teenage girl. It's easy to imagine how this could have happened, and the distress of the girl's family, friends and relatives. What if the photo had been transmitted within seconds to some ghoulish website, before the family were even informed of the girl's death? The traditional media would not have published it, for fear of getting sued, but it could have been easily posted to an anonymously authored weblog. Once something is on the Internet, how possible it is to delete whatever has been trawled by the search engines?
The ambulance worker was sacked but no charges were brought by the police. (In fact, the report confirmed the police would not be investigating any aspect of the case.) If some sort of lifetime ID number and system (similar to a driver licencing system) were in place, and that awful *incident*, was logged against the ambulance worker's ID, it may deter him and others from inflicting devastation on other people's lives. I'm not just talking here about a National ID, but a Global ID system designed for the Internet. In this country, some people concerned with civil liberties are lobbying against our Government's proposal to introduce National ID cards. Surely, the benefits of safeguarding our freedom and protecting us from opportunists and predators, far outweigh any potential infringements of civil liberties. Besides, if there's no privacy to invade, how can there be such a thing as invasion of privacy? In my view, people who are against the introduction of an ID system can expect to be suspected of having something to hide.
I think that the idea of creating discrete modules is very good - assuming that the logistics and resources (which influence delivery of modules) are already in place.
I run a “mish-mosh” type of course - Semester 1 looks at the idea of Cyberlaw and then moves onto discrete topics like Jurisdiction, IPR and Intermediary Liability. Semester 2 looks at Privacy, Free Expression and EContracts. Im not entirely convinced that this is, as yet, the best combination.
Increasingly I am coming around to the view that Semester 1 should involve some theoretical-conceptual focus: a critique of Easterbrook-Larry-Castells (or Schiller). The module can conclude with a case study examination selected topics.
Alternatively, I would ask the students at the end of the module to draft their own Semester 1 module - it should be interesting read if not thought provoking.
Joseph