Книга: Code 2.0

On Being “in” Cyberspace

On Being “in” Cyberspace

Cyberspace is a place.[13] People live there. They experience all the sorts of things that they experience in real space there, and some experience more. They experience this, not as isolated individuals playing some high-tech computer game, but as part of groups, in communities, among strangers, and among people they come to know and sometimes like — or love.

While they are in that place, cyberspace, they are also here. They are at a terminal screen, eating chips, ignoring the phone. They are downstairs on the computer, late at night, while their husbands are asleep. They are at work, at cyber cafes, and in computer labs. They live this life there, while here, and then at some point in the day they jack out and are only here. They rise from the machine in a bit of a daze, and turn around. They have returned.

So where are they when they are in cyberspace?

We have this desire to pick: We want to say that they are either in cyberspace or in real space. We have this desire because we want to know which space is responsible. Which space has jurisdiction over them? Which space rules?

The answer is both. Whenever anyone is in cyberspace, she is also here, in real space. Whenever one is subject to the norms of a cyberspace community, one is also living within a community in real space. You are always in both places if you are there, and the norms of both places apply. The problem for law is to work out how the norms of the two communities are to apply given that the subject to whom they apply may be in both places at once.

Think again about Jake Baker. The problem with Jake was not that he went to a different place where the norms were different. The problem was that he was simultaneously in a Michigan dorm room and on the Net. He was subject to the norm of civility in the dorm, and he was subject to the norm of indecency in cyberspace. He was subject, that is, to two sets of norms as he sat in that single chair.

So whose norms would apply? How would real-space governments deal with the conflict between these two communities?

Some examples might help to set a context in which that question might be answered. Ordinarily, when you go to Europe you do not bring the federal government with you. You do not carry along a set of rules for Americans while in Europe. In Germany you are generally subject to German law. The United States ordinarily has very little reason to worry about regulating your behavior there.

But sometimes the U.S. government does have a reason to regulate American citizens abroad. When it does, nothing in international law can stop it.[14] For example, there are jurisdictions where pedophilia is not adequately regulated, and for a time they became target tourist spots for pedophiles from around the world. The U.S. government passed a law in 1994 to forbid Americans from engaging in child sex while outside the United States, even in jurisdictions where child sex is permitted.[15]

What justification could there have been for such a law? Obviously, the sense of Congress was that if a person engages in such behavior in a foreign country, they are more likely to do it here as well. If they visit a community where the norms permit such behavior, they are more likely to carry those norms back to their life here. Thus, while the American government generally doesn’t much care what you do elsewhere, it does begin to care when what you do elsewhere has an effect on your life here.

Regulations like this are the exception, of course. But they are the exception because the practice of passing into alternative, or alien, communities in real space is also the exception. The frictions of real-space life make it less likely that the norms of an alien culture will bleed into our own; the distance between us and alien cultures is so great that very few can afford to have a life in both places.

But the Net changes this. As the Baker case suggests, and as any number of other cases will press, with cyberspace these other communities are no longer elsewhere. They can be brought home, or more frighteningly, into the home. Real-space communities no longer have the buffer of friction to protect them. Another community can now capture the attention of their citizens without their citizens’ ever leaving their living room. People may be in both places at the same time. One affects the other. As Edward Castronova writes, “synthetic worlds are becoming important because events inside them can have effects outside them.”[16] The question for government is how far to allow these effects to go.

Now this question has really three different parts — two old, and one new. The old part is how a far a government will allow foreign influences to affect its culture and its people. Cultures at one time isolated are later invaded when the barriers to invasion fall. Think about the plea from Europeans to stop the invasion of American culture, which pours over satellite television into the living rooms of European citizens.[17] Or even more extreme, the Middle East. These places have long fought to protect their culture from certain alien influences, and that fight becomes much more difficult once the Internet becomes ubiquitous.

The second old part is the question of how, or whether, a government will protect its citizens against foreign practices or rules that are inconsistent with its own. For example, the copyright law of France strongly protects the “moral rights” of French authors. If a French author enters into a contract with an American publisher, and that contract does not adequately protect the “moral rights” of the French citizen, how will the French respond?

But the third question — and the new part — is the issue raised by the ability for citizens to live in the alien culture while still at home. This is something more than merely watching foreign television. The alternatives offered by TV are alternatives of the imagination. The interactive life of cyberspace offers alternative ways of living (or at least some cyberspaces do).

My focus in this chapter is not on the first question, which many call cultural imperialism. It is instead upon the conflicts that will be manifested by the second and third. It may well be true that there have always been conflicts between the rules of different governments. It may always have been that those conflicts have bled into particular local disputes. Cyberspace has exploded this third stage of the debate. What was once the exception will become the rule. Behavior was once governed ordinarily within one jurisdiction, or within two coordinating jurisdictions. Now it will systematically be governed within multiple, noncoordinating jurisdictions. How can law handle this?

The integration of cyberspace will produce a profound increase in the incidence of these conflicts. It will produce a kind of conflict that has never happened before: a conflict arising from individuals from different jurisdictions living together in one space while living in these different jurisdictions.

This question has produced a ferocious argument between two extremes. At one end is the work of David Post and David Johnson. Johnson and Post argue that the multiplicity of jurisdictions in which your behavior is subject to regulation (since anything you do in cyberspace has an effect in every other context) should mean that much behavior is presumptively not subject to regulation anywhere. Anywhere, that is, save cyberspace.[18] The inconsistency of any other solution, they argue, would be absurd. Rather than embracing the absurd, we should embrace something far more sensible: life in cyberspace, as Milan Kundera might put it, is life elsewhere.

At the other extreme is the work of scholars such as Jack Goldsmith and Tim Wu, who claim there is nothing new here — at least new from the perspective private international law.[19] For many years the law has worked through these conflicts of authority. Cyberspace may increase the incidence of these conflicts, but it does not change their nature. Old structures may have to be molded to fit this new form, but the pattern of the old will suffice.

While both sides embrace partial truths, in my view both are mistaken. It is true, as Johnson and Post argue, that there is something new here. But what is new is not a difference in kind, only a difference in degree. And it is true, as Goldsmith and Wu argues, that we have always had disputes of this form. But we have not had conflicts at this level. We have not had a time when we could say that people are actually living in two places at once, with no principle of supremacy between them. This is the challenge that we will face in the future.

This duality is a problem because the legal tools we have used to resolve these questions before were not designed to deal with conflicts among citizens. They were designed to deal with conflicts among institutions, or relatively sophisticated actors. They are rules made for businesses interacting with businesses, or businesses interacting with governments. They were not designed for disputes between citizens.

Jessica Litman makes an analogous point in her work on copyright.[20] For much of the last century, Litman argues, copyright has worked fairly well as a compromise between publishers and authors. It is a law that has largely been applied to institutions. Individuals were essentially outside copyright’s purview since individuals didn’t really “publish.”

The Internet, of course, changes all this. Now everyone is a publisher. And Litman argues (convincingly, in my view) that copyright’s rules do not necessarily work well when applied to individuals.[21] The ideal rules for individuals may not necessarily be the ideal rules for institutions. The rules of copyright need to be reformed to make them better suited to a world where individuals are publishers.

The same is true of conflicts between sovereigns. The rules for dealing with these conflicts work well when the parties are repeat players — corporations that must do business in two places, for example, or individuals who constantly travel between two places. These people can take steps to conform their behavior to the limited range of contexts in which they live, and the existing rules help them to that end. But it does not follow (as it does not follow in the context of copyright) that the same mix of rules would work best in a world where anyone could be a multinational.

The solution to this change will not come from insisting either that everything is the same or that everything is different. It will take more work than that. When a large number of citizens live in two different places, and when one of those places is not solely within the jurisdiction of a particular sovereign, then what kinds of claims should one sovereign be able to make on others, and what kinds of claims can these sovereigns make on cyberspace?

This question is not yet answered. It is another latent ambiguity in our Constitution’s past — but in this case there is no founding international constitutional moment. Even if there had been, it would not have answered this question. At the founding ordinary people were not routinely living in multiple noncoordinating jurisdictions. This is something new.

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