problem of perspective in Internet law, The

Georgetown Law Journal, Jan 2003 by Kerr, Orin S

These two approaches are similar to each other and also quite different. In both the external and internal cases, we apply law to "the Internet." However, our model of what that Internet is-and therefore what Internet law is-varies dramatically depending on the perspective we choose. The law is contingent on the facts, and the facts are contingent on our perspective.

What makes this problem unusually interesting is that there is no particular correlation between internal and external renderings of the Internet's facts. The real produces the virtual, but the virtual need not reflect the real. Significant changes in the behind-the-scenes workings of the Internet can go entirely unnoticed by users.19 At the same time, minor changes in computer code can have a dramatic impact on users' experiences.20 A typical user immersed in the internal perspective can be blissfully unaware of the complex inner working of the Internet.

The lack of correlation between the real and the virtual has profound implications for Internet law. It means that the legal outcomes reached using an internal set of facts exist independently from outcomes reached with an external set of facts. When we apply the law to the facts, an internal perspective will take us down one path, and an external perspective will take us down another. The two paths may happen to converge, but there is no reason to think they will. In effect, we not only have two Internets, but two versions of Internet law. Every time we apply law to the Internet, we will have two possible outcomes: an internal outcome and an external outcome. The two outcomes may happen to match in some cases. In many cases, however, the choice of perspective proves outcome-determinative. Consequently, the shape of Internet law hinges on our choice of perspective.

C. AN EXAMPLE: SURFING THE WEB

All of this may seem rather abstract, so an example may help. Consider what happens when an Internet user surfs the web. Imagine that an Internet user opens up a web browser and types in "www.amazon.com," and moments later the homepage of Amazon.com appears on the viewer's screen. How might we model this event? How can we develop a factual picture of what has happened, so that we can later determine the legal consequences of accessing a webpage?

This is easy from an internal perspective. The user has visited Amazon.com's website, going to Amazon.com's home on the Internet. The user has visited Amazon.com's virtual store much like a person might visit a store in the physical world, traveling from one point in cyberspace to another. Of course, we realize that the user has not actually traveled anywhere. The user is just sitting in front of the screen. But from an internal perspective, the essential experience of surfing Amazon.com can be captured by comparing it to visiting a store.

From an external perspective, however, the event appears quite different-and significantly more complicated. Behind the scenes, the simple act of typing "www.amazon.com" into a web browser triggers a series of responses from different computers connected to the Internet. The browser begins by sending out a request across the Internet to a special type of computer known as a Domain Name System (DNS) server.21 The browser's request asks the DNS server to translate the letters of the website address "amazon.com" into an "Internet Protocol" or "IP" address, which is a series of numbers that computers connected to the Internet understand as an address akin to a phone number.22 The DNS server will respond that "www.amazon.com" translates into the IP address "207.171.184.16."23 The user's browser then issues another request, this time directed to "207.171.184.16," asking it to send a set of data files back to the browser. Amazon.com's computer will receive the request and then send data back to the browser. The browser will receive the data and display it on the user's screen. The resulting images and text appear in the form of the Amazon.com webpage that the user requested.24