problem of perspective in Internet law, The

Georgetown Law Journal, Jan 2003 by Kerr, Orin S

INTRODUCTION

The lawyer's quintessential task is to apply legal rules to facts.1 When we apply law to the Internet, however, a difficult question arises: What are the "facts" of the Internet? The Internet's facts depend on whether we look to physical reality or virtual reality for guidance. We can model the Internet's facts based on virtual reality, looking from the perspective of an Internet user who perceives the virtual world of cyberspace and analogizes Internet transactions to their equivalent in the physical world.2 Alternatively, we can model the facts based on the physical reality of how the network operates. From this perspective, Internet transactions can be understood based on how the network actually works "behind the scenes,"3 regardless of the perceptions of a user. Because the Internet can generate a virtual reality, it offers two distinct sets of facts: one based on physical reality, the other based on virtual reality.

The Internet's ability to generate a virtual reality creates what I will call the problem of perspective in Internet law. The problem is that whenever we apply law to the Internet, we must first decide whether to apply the law to the facts as seen from the viewpoint of physical reality or virtual reality. In this Article, I will refer to the viewpoint of virtual reality as the "internal perspective" of the Internet, and the viewpoint of physical reality as the "external perspective."

This Article argues that the problem of perspective pervades Internet law, and that the nature and shape of Internet law depends upon how it is resolved in particular cases. In a surprising number of situations, we arrive at one result when applying law from an internal perspective and a different result when applying law from an external perspective. In fact, many of the major disputes within the field of "cyberlaw"4 boil down to clashes between internal and external perspectives. To complicate matters, neither perspective holds an a priori claim to greater legitimacy. Both internal and external perspectives can appear perfectly viable depending on the circumstances, and courts and commentators switch between them frequently without even recognizing the change.5

The goal of this Article is to explain the problem of perspective, to show its importance, and to offer an approach that can help lead to its solution. I argue that we need to be aware of the problem of perspective and develop legal tools that can help us choose between real and virtual understandings of the Internet when we apply law to it. I also contend that the problem of perspective is a new problem, or at least a new twist on an older one. Although prior technologies such as the telephone hinted at the clash in narrow ways,6 computer networks and the Internet provide the first widespread technology that creates a virtual world for its users that can compete on an equal footing with the real one. As a result, Internet law prompts us to confront the problem of perspective for the first time.

I will develop my argument in four parts. In Part I, I explain the conceptual distinction between internal and external understandings of the Internet. The Part explores how and why both perspectives offer plausible means of modeling the facts of the Internet and how the shape of Internet law hinges on whether we approach the law of the Internet internally or externally.

Part II shows that the choice between internal and external perspectives presents a recurring and powerful theme in Internet law. This Part explores the importance of the problem of perspective in four areas of law. The analysis begins with the Fourth Amendment in cyberspace, and in particular Fourth Amendment restrictions on obtaining e-mail and conducting remote network searches; turns next to Internet governance, with particular focus on the ideas of Lawrence Lessig and the scope of the state action doctrine; follows with computer crime law, where it shows how internal and external approaches have been raised in appellate cases involving online bomb threats and the distribution of obscene materials over the Internet; and concludes with copyright law, focusing on the recent copyright dispute over the Internet music service MP3.com. Within each area, I show how a range of seemingly unrelated disputes in fact all reflect a clash between internal and external viewpoints.

Part III explains the significance of the problem of perspective. It shows how the problem of perspective reflects the universalization of themes presaged in limited ways by the telephone and builds upon and extends theories of systems developed by H.L.A. Hart and others. This Part also argues that we need to develop a new awareness of the problem of perspective, as well as a framework to help mediate between the internal and external perspectives in particular cases.

Part IV offers a tentative normative framework for choosing which perspective to apply in a given case. The framework approaches the problem of perspective as a problem of fidelity, in which our goal should be to select the perspective that best reflects the judgments and function of preexisting law. Under this framework, our first step should be to study the legal doctrine for signals that the law already reflects an internal or external approach. When applicable cases or statutes reveal a particular orientation, we should adopt that orientation. When doctrine alone does not answer which perspective should apply, our second step should be to adopt the perspective of the party that the law seeks to regulate. As with the first method, this approach is rooted in fidelity to existing law: It seeks to transfer the law's regulatory scheme as directly and completely as possible from the physical world to the Internet.