Law Online: An Introduction Richard Warner Chicago-Kent College of Law

Cyberspace and Choice  The importance of the Internet: worldwide communication and distribution of text and multimedia works are available to everyone. It would be difficult to overestimate the social, political, and commercial impact.  We must make choices: In cyberspace,“we stand on the edge of an era that demands we make fundamental choices about what life in this space... will be like.” Lawrence Lessig, Code and Other Values, p. 220.

What Is Internet Law?  The Internet differs dramatically from traditional communications networks. The differences have already profoundly affected individuals, businesses and governments.  The law has responded with new rules and the with novel applications of traditional rules. Internet law consists of these rules, their rationales, and consequences.  How does one achieve a useful overview of such a vast and constantly changing subject? It is possible if a unifying theme provides a vantage point from which to survey the rest of the subject.  Such theme exists. It is provided by the question of where and how the law should draw boundaries on the Internet.

Three Basic Boundary Questions  1. What right does an Internet system owner have to prevent access? An Internet system is a web site, Internet-connected computer, or Internet-connected network.  2. What obligation does the owner have to prevent access? Civil? Criminal?  3. What obligation does the owner have to allow access?

Right to Prevent Access  What legal right does An ISP prevent have to prevent access by spammers? A business have to prevent access by a competitor to parts of its web site that are publicly accessible? The owner of a web site have to prevent pop-up ads from appearing over the site? The owner of a computer to prevent cookies, “spyware,” and “adware” programs from being placed on the computer’s hard drive? The owner of a publicly accessible database have to prevent access?

Current Law  Common law: A combination of tort, contract, privacy doctrines that does not provide any comprehensive, consistent treatment of the issues.  Statutes (US and EU): A variety of statutes that do not provide any comprehensive, consistent treatment of the issues.

The Obligation To Prevent Access  Internet systems are attacked 24/7 by hackers seeking unauthorized access; such access causes several billions of dollars of damage. Unauthorized is traceable to two sources: (1) manufacturing defects in software or hardware; (2) failure by system owners to implement adequate security. What legal obligation does a manufacturer have to provide non- defective products? What legal obligation does a system owner have to implement adequate security?  What obligation is there for a system owner to prevent the use of that system to commit defamation or copyright violation.

Current Law  Common law Possible negligence liability for inadequate security, possible products liability for defective software and hardware; one California case filed against Microsoft on an unfair competition theory. The intermediary liability cases.  Statutes A piecemeal and indirect treatment except in the case of intermediary liability, which is addressed in CDA §230.

The Obligation to Allow Access  Internet systems contain a variety of information—some correct, some mistaken— that is potentially relevant to a variety of concerns.  What obligation is there to allow access to Internet systems By employers to employer provided systems; By law enforcement; By private individuals?

Low Cost, No-Explicit-Permission Access  Low-cost access: Anyone with a computer and a modem can communicate by , search the Internet, create and maintain a web site, and cheaply and easily distribute digital materials.  No-explicit-permission access: By connecting to the Internet and making the system publicly accessible, the system owner impliedly consents to access by the general public. No-explicit-permission keeps costs down: no license fees, no transaction costs. This fact is critical to the growth and vitality of the Internet. It plays a key role in linking and searching.

Linking  The Web is a network of hyperlinks.  Links do not, however, serve only to create the Web. They also play a critical navigation role. You locate information by following links. As Maureen O’Rourke notes the “dispersion of data that is the Internet is... largely overcome by the web’s ability to link related information in a manner transparent to the user. This has helped make the Internet into a medium of mass communication and a vast commercial market place.” Maureen A. O’Rourke, Fencing Cyberspace: Drawing Borders in a Virtual World, 82 Minn. L. Rev., 609, 611 (1998

Search Engines  Search engines serve as the Web’s index.  They are “critical to the effective use of the Internet. The Internet has multiple sources of information at the back end (hundreds of millions of Web pages), but only one means of accessing that information at the front end (the consumer’s computer screen)...” From the Amicus Brief in eBay.

Non-Search Engine Searching  There are all sorts of non-search-engine searches. illustrates the point. You can use bots to collect information about any change to any publicly accessible web page; get real time information about competitors’ prices; monitor conversations in chat rooms and so on. It is reasonable to expect non-search-engine searching to increase in importance. The programs meet a need for an automated, individually customized way to bring dispersed information to the user’s desktop.  All of the cases that assert a legal right of an Internet system owner to prevent searching involve non-search-engine searching. Of course there is an issue about exactly what counts as a search engine.

The Key Question  How do you balance the interests served by preventing access against the interests served by allowing access?  We will use property law models to answer this question. Property right systems balance two interests: the interests served by excluding others, and the interests served by allowing access.