CyberLawSeminar Week one

[David Farber <farber () central cis upenn edu>]

From: CYBER () HULAW1 HARVARD EDU
Date: Thu, 02 Mar 1995 03:41:28 -0500 (EST)
Subject: CyberSeminar: Week One
To: cyber () HULAW1 HARVARD EDU
MIME-version: 1.0


WELCOME to the Harvard Law School Seminar on Information, Law, and Technology!


If you're reading this message it means you are on the "cyber" mailing list
for the seminar.  To remove yourself from the list, add a friend, or
substantively respond to anything you see here you can send email to
cyber () law harvard edu.


WHAT IT MEANS TO BE ON THIS LIST


The seminar meets in its physical form on Monday evenings at the law school.
Each meeting is organized around a particular topic and includes one to three
guest speakers.  People on the cyber list will receive an initial mailing
shortly after the Monday class meeting; the mailing will feature highlights
from the previous class along with several hypothetical questions meant to
test and explore the issues raised in the class.


WHY THIS IS MORE (AND LESS) THAN A REGULAR MAILING LIST


The cyber list is more than a mailing list because substantive response is
expected from the participants--reactions to the hypotheticals, long or short,
formal or informal, are solicited.  The list is less than a mailing list
because any reactions mailed to the cyber address will *not* be automatically
redistributed to other list participants.  Rather, responses will be edited
into one or two brief followup mailings that follow the hypotheticals as they
unfold among the participants.  This will prevent our electronic mailboxes
from filling up with any number of emails from the list, and at the same time
free us to answer the hypotheticals as trivially or deeply as we like--there
is no danger that a series of short, snappy emails or long, drawn-out ones
will annoy fellow participants, because they'll all be folded into a single
followup mailing as appropriate.  The editor for our first week is Professor
Dorothy Zinberg of the Kennedy School of Government.


SUMMARY, THEN THE HYPOTHETICALS


Here, then, are some highlights from the seminar's first meeting, which was a
general introduction featuring John Perry Barlow (Grateful Dead lyricist,
retired cattle rancher, and co-founder of the Electronic Frontier Foundation),
Michael Katz (chief economist for the FCC), and Brian Kahin (Director of the
Information Infrastructure Project at the Kennedy School).  They are expressed
as four elemental claims, followed by the hypotheticals.




SESSION ONE:  WHAT DOES THE EXPANSION OF CYBERSPACE MEAN FOR LAW?
              FOR NATIONS?  FOR SOCIETY?




I.  CYBERSPACE THREATENS REAL SPACE.  Physical jurisdiction is becoming
increasingly meaningless when the only boundaries relevant to information flow
are those requiring passwords instead of passports.  At the very least this
could be a problem for individuals whose musings can travel far and wide in
the form of public messages.  Someone could violate a rural community's
obscenity standards from a downtown skyscraper--and, as has happened to a
California couple operating an electronic bulletin board containing
pornographic images--be indicted in Tennessee for it.


     The problem is international, too, since one country's free speech is
another's capital blasphemy.  As Barlow puts it: in cyberspace the First
Amendment is a local ordinance.




II.  CYBERSPACE CHANGES PEOPLE.  And it lets them change themselves.  One
aspect of this principle is the ability for each of us to adopt multiple--and
wildly varying--personalities over computer networks.  Katz told the story of
a twelve-year-old boy who, masquerading as someone older, had increasingly
intimate conversations with an eleven-year-old girl.  Who turned out to be an
eighteen-year-old boy.  (And ultimatley was given someone else's phone number
by the twelve-year-old instead of his own.)  Without the need for identity the
suasive force of responsibility is really attenuated.


     Another aspect of cyberspace changing people seems rooted in the
Internet's original users--elite, desocialized, educated younger men.  There
appears (at least anecdotally) to be a palpable libertarian bent to the
opinions expressed on the Net, and a concomitant brashness and even rudeness,
as anyone who has been "flamed" can attest.  It's unclear whether recent
infusions of a more representative cross-section of society into the Net will
make it more like the everyday world, or whether there's something about
cyberspace that transforms people into what they might otherwise fear and
loathe.




III.  NOW THAT COMMERCE AND CYBERSPACE HAVE DISCOVERED EACH OTHER, NOTHING
WILL BE THE SAME.  Within the past month or so several forms of "digital cash"
have been made available on the Internet, paving the way for high-volume
anonymous cash transactions.  Accompanied by a final withering away of the
National Science Foundation's original subsidization--and along with it the
requirement that the Net be used only for non-commercial purposes--the
potential for serious shopping, especially for information itself, now
exists.
Possible ramifications:


     1.  Copyright and distribution restrictions will become meaningless.
Information--able to be duplicated and shipped around at zero cost--won't be
able to help itself from running all over the place.  The fact that the Net is
a distributed, rather than centralized, network makes this even more likely to
occur.  Governments will be simply unable to censor anything, and companies
will be unable to enforce intellectual property protection for their
information wares.  The companies will come to rely on the timeliness of their
information as a means of retaining its salability in the face of rampant
information piracy.


     2.  Copyright and distribution restrictions will adapt and survive.  A
few publicized examples of violators--a few LaMacchia's--will suffice to keep
most of us in line.  This reflects a general debate over the role law will
play in the information frontier.  Some believe the glacial pace of lawmaking
will be replaced by a more organic and dynamic sense of informal ethical
rules, keeping up with the pace of technological change and information
transfer.  Others think law will do just fine so long as it expresses itself
at the proper level of generality, not binding itself merely to current
applications.


     3.  Taxes will become voluntary.  So says Barlow, apparently since it
will be near-impossible to know anyone's net worth much less income.  When
everything is a tip instead of a paycheck, tax policing is hard.  Death
survives as the only certainty, perhaps itself threatened by the Net's
opportunity for us to have--and share--multiple personalities (see item II).




IV.  CYBERSPACE IS FREEDOM.  CYBERSPACE IS SLAVERY.  Perhaps it's both.  It's
freedom because central governments, so often the source of opprobrious
censorship, taxes, and regulation, might be fundamentally--and successfully--
threatened by an entity that effortlessly transcends their boundaries and is
designed to respond to censorship as a minor, repairable bug.  It's slavery
because the potential for invasion of privacy is greatly enhanced.  Whatever
we do online might leave fingerprints for those skilled and resourced enough
to find them--which usually means governments.  Whatever we say--or is said
about us--can be carried instantly and irrevocably to the far reaches of the
world.




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What follows are the hypothetical situations based on the issues brought up in
the seminar.  Responses are not only solicited but necessary to the
functioning of this list, and are most useful within 24 hours of this
mailing.
(Why not dash off something right now?)  Account (and real) names will remain
attached to responses featured in the followup.


1.  THE DUCHY OF FENWICK GETS A SERVER.  A seller of pirated information and
software sets up in a country with which we do not have friendly relations or
trading alliances; a bazaar of pirated information, including digitized photos
that would be highly obscene under American law opens its doors.  (1) What
should the U.S. do?  (2) How likely is the scenario?


2.  THOUGHT POLICE/CONSCIENTIOUS ADMINISTRATORS.  A university network
administrator gives you, the university president, the names of professors who
have been accessing, and downloading material from, electronic child
pornography sites.  The activity does, at first blush, seem to be a criminal
violation of federal law.  What should you do with that information and why?
If the administrator tells you that she feels compelled to release the
information--confidentially--to the FBI, what do you do?


3.  SALMON RUSHDIE ISN'T THE ONLY ONE.  A warrant is sworn out in Singapore
for the arrest of an American citizen wanted for making criminally libelous
remarks about that country's esteemed leader.  The American made the remarks
on an Internet newsgroup (alt.countries.social-engineering), and they were
carried in the natural course of events to servers in Singapore.  Should the
situation be handled any differently from one in which an American court
swears out a warrant against a Singaporean for making terroristic threats
against the U.S. President over the same newsgroup?


4.  WE KNOW ABOUT THAT PIRATED GAME ON YOUR HARD DISK--SO JUST HOW DEGENERATE
ARE YOU?  The advent of electronic cash--and electronic junk mail--brings the
following offer to your desktop:


     *GUARANTEED TAX SHELTER!*
  Pay us 0.5% in e-cash and we'll be
  happy to help sequester the rest.
  Your major assets will be converted to
  e-cash and through our patented
  (but lamentably oft-pirated) system
  we'll bring your official account
  balances below the 15% bracket.  You
  need not pay taxes on the rest, and
  you can relax while it earns you interest
  at the going rate.
 SURE, it's ILLEGAL.  But EVERYONE's doing it!


     Cryptologically-certified testimonials from enthusiastic shelterees
assure you to a metaphysical certainty that the offer is solid and that you
could get away with paying thousands of dollars less in taxes.  (1)  Would you
do it?  (2)  What percentage of people do you think would?


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Welcome aboard--replies most useful within 24 hours.