Developments in the law the law of cyberspace

Harvard Law Review

Volumn 112, Issue 7, 1999, Pages 1574-1609

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EID: 37849186539     PISSN: 0017811X     EISSN: None     Source Type: Journal    
DOI: 10.2307/1342414     Document Type: Article

References (308)

1. The size of the nation's largest corporations as measured by market capitalization is in constant flux, but recent figures indicate that Microsoft is the nation's largest company, with General Electric a close second. See The 100 Biggest Companies, WALL ST. J., Feb. 25, 1999, at R13.
2. See Joel Brinkley, U.S. and 20 States File Suits Claiming Microsoft Blocks Competition over Internet, N.Y. TIMES, May 19, 1998, at A1.
3. See John R. Wilke, U.S. Sues Microsoft on Antitrust Grounds: Software Giant Is Accused of Curbing Competition; States Also Bring Action, WALL ST. J., May 19, 1998, at A3.
4. See Amy Harmon, Tangled Web Tangles up the World Wide Web, N.Y. TIMES, Sept. 12, 1998, at A11.
5. See, e.g., James K. Glassman, Matt Drudge, E-Journalist, WASH. POST, June 9, 1998 (celebrating the rise of Matt Drudge, "the notorious Internet journalist who told the world about the liaison between Monica Lewinsky and President Clinton," and observing that the marketplace for news on the Internet poses "a threat to the people with the power today").
6. See Steve Lohr & John Markoff, Deal Is Concluded on Netscape Sale to America Online, N.Y. TIMES, Nov. 25, 1998, at A1 ("By moving quickly toward what both [Netscape and America Online] have recently come to see as the inevitable convergence of technology and media, America Online hopes that it will secure a solid lead in a battle already joined by giants like the Microsoft Corporation and the International Business Machines Corporation to transform the greater part of cyberspace into a vast virtual mall.").
7. See George Anders, Cybersqueeze: Comparison Shopping Is the Web's Virtue - Unless You're a Seller, WALL ST. J., July 23, 1998, at A1 (noting that amid heavy competition, many analysts do not expect Wall Street darling Amazon.com to post an annual profit until 2001);
8. Rob-ert Sobel, Mania Milestones, BARRON'S, Feb. 22, 1999, at 19 (comparing the current market craze over Internet stocks to other famous cases of speculation).
9. See George Anders, Amazon.com, eBay Post Blazing Growth, WALL ST. J., Jan. 27, 1999, at B6 (reporting that Amazon.com posted a 1998 fourth quarter loss of $46.4 million on revenue of $252.9 million, but that, according to the company's chief financial officer, the Internet bookseller was "profitable" during the December holiday rush).
10. It is impossible to derive a precise figure for the number of Internet users, but two hundred million is a common estimate. See, e.g., Reno v. ACLU, 521 U.S. 844, 850 (1997) (stating that the number of people who use the Internet was expected to reach two hundred million by 1999).
11. See Robert D. Hof, The Net Is Open for Business - Big Time, Bus. WK., Aug. 31, 1998, at 8 (citing predictions by Forrester Research, Inc.). In a later report, Forrester predicted that "global E-commerce revenue would reach $3.2 trillion by 2003, a figure that accounts for almost 5% of all global sales." Linda Himelstein,
12. Robert D. Hof & Geoffrey Smith, Why They're Nuts About the Net, Bus. WK., Nov. 23, 1998, at 52. No one is more aware of this electronic commerce boom than Congress. See, e.g., 144 CONG, REC. S11, 503 (daily ed. Oct. 5, 1998) ("I rise today in support of the Internet Tax Freedom Act. In recent years, Internet use has exploded, creating unprecedented opportunities for individuals and businesses. We must not allow a complicated patchwork of taxes to impede future opportunities.") (statement of Sen. Faircloth).
13. The ARPANet was sponsored by the Advanced Research Experimental Project Agency, also known as the Defense Advanced Research Experimental Project Agency. See ACLU v. Reno, 929 F. Supp. 824, 831 (E.D. Pa. 1996).
14. For a detailed, technical description of the history of the Internet as seen by some of its founders, see Barry M. Leiner et al., A Brief History of the Internet (visited Apr. 19, 1999) 〈http:// info.isoc.org/internet/hbtory/brief.html (on file with the Harvard Law School Library).
15. ACLU, 929 F. Supp. at 831. Leiner and his co-authors downplay the defense aspects of the early Internet that are often emphasized by those recounting the early history of the Internet See Leiner et al., supra note 12.
16. See ACLU, 929 F. Supp. at 832.
17. See Leiner et al., supra note 12.
18. At the end of 1969 there were four host computers connected to the ARPANet. See id. Today the number of hosts exceeds forty million. See Internet Domain Name Survey, January 1999 (visited Apr. 19, 1999) 〈http://www.nw.com/zone/www/report.html (on file with the Harvard Law School Library).
19. As used here, the term "directly" includes computers linked to computer networks that are in turn connected to the Internet, as well as computers that are themselves connected to the Internet.
20. See ACLU, 929 F. Supp. at 832.
21. See id. at 833.
22. Id. at 834 (categorizing the "most common methods of communication on the Internet).
23. See id.
24. See id. at 835.
25. See id. at 834.
26. Id. at 835.
27. Id. at 836.
28. See id.
29. See Karen Kaplan, Anti-Spam Forces Move Beyond Suits, L.A. TIMES, Sept. 28, 1998, at D3 (discussing the ISP industry's response to the spam problem).
30. See Patrick McGeehan, When Things Co Wrong: What Can You Do If You Have a Grievance About an On-line Trade?, WALL. ST. J., Sept 8, 1998, at R15 (noting the rising number of complaints about online trading processed by both federal regulators and the National Association of Securities Dealers).
31. See, e.g., Lizette Alvarez, House Passes Bill to Crack Down on Pedophiles Exploiting Internet, N.Y. TIMES, June 12, 1998, at A16 ("Cyberpredators often cruise the Internet in search of lonely, curious or trusting young people." (quoting Rep. Bill McCollum) (internal quotation marks omitted)).
32. See, e.g., Phillip J. Nesser U, The Internet and the Millenium Problem (Year 2000) (visited Apr. 19, 1999) 〈http://www.ietf.org/internet-drafts/draft-ietf-20000-issue-o6.txt (on file with the Harvard Law School Library) (concluding at this point in his consulting team's review of Internet protocols that the YsK problem will not disrupt the functioning of the Internet);
33. see also Barnaby J. Feder, Fear of the Year 2000 Bug Is a Problem, Too, N.Y. TIMES, Feb 9, 1999, at A1 (discussing the varying levels of concern about the Y2K problem expressed by Americans).
34. See, e.g., Geeta Anand, Parents Want BPL to Block Pom on Internet, BOSTON GLOBE, Feb. 12, 1997, at A28 ("City Councilor Maureen E. Feeney (Dorchester), responding to parents' concerns, plans to ask the Boston City Council today to schedule a hearing on how to regulate children's Internet access at the [Boston Public Library].");
35. Karen Kaplan, AOL Drops Plans to Sell Members' Phone Numbers, L.A. TIMES, July 25, 1997, at A1 ("AOL's proposal reinforced fears that privacy rights are steadily eroding in Cyberspace. Mounting public concern helped spur the Federal Trade Commission to hold hearings in Washington last month to examine whether government regulation is needed.");
36. Aaron Lucchetti, Plan to Reduce Volatility on Nasdaq Hits Hurdle, WALL ST. J., Feb. 3, 1999, at C1 (reporting less than unanimous support among traders for the National Association of Securities Dealers' response to investor complaints about the wild price volatility of some Internet stocks).
37. Communications Decency Act of 1996, Pub. L. No. 104-104, tit. V, no Stat. 561 133-43 (1996).
38. See Reno v. ACLU, 321 U.S. 844, 864-66 (1997) (discussing and then rejecting the government's contention that the CDA was a constitutional exercise of the government's interest in protecting children from harmful materials).
39. See id. at 861.
40. Id. at 868.
41. See id. at 849.
42. The Supreme Court, 1996 Term - Leading Cases, in HARV.L. REV. 329, 334 (1997).
43. In December of 1998, Congress passed the Child Online Protection Act as part of an omnibus spending provisions bill. See Omnibus Consolidated and Emergency Supplemental Appropriations Act, Pub. L. No. 105-277, tit. XVI, 112 StaL 2681, 2736-41 (1998) (to be codified at 47 U.S.C. § 231).
44. See, e.g., ACLU v. Reno, 31 F. Supp. 2d 473, 497 (E.D. Pa. 1999) (granting a preliminary injunction against the enforcement of the Child Online Protection Act on the grounds that the law did not appear to be the least restrictive means of blocking minors' access to indecent material).
45. See id. at 498.
46. See Sam Howe Verhovek, Creators of Anti-Abortion Web Site Told to Pay Millions, N.Y. TIMES, Feb. 3,1999, at Ag.
47. For example, after providing a description of the Internet to illustrate how the provisions of the CDA were intended to work, the Court distinguished the situation in Reno from prior cases in which the Court had upheld statutes that targeted speech content. See Reno v. ACLU, 521 U.S. 844, 864-68 (1997). Throughout his opinion for the Court, Justice Stevens relied on long-standing principles of real-space First Amendment law to justify his decision. See, e.g., id. at 868 (noting that although in some cases, the "scarcity" or "invasiveness" of a particular broadcast medium may justify governmental regulation, "[t]hose factors are not present in Cyberspace").
48. This statement, of course, greatly oversimplifies a complex area of First Amendment jurisprudence. Part ni of this Development examines the nuances of this area in greater detail. See infra Part HI.
49. For a thorough discussion of this problem, see infra Part IV.
50. See infra Part HI.
51. See, e.g., David R. Johnson David Post, Law and Borders -The Rise of Law in Cyberspace, 48 STAN. L. REV. 1367, 1402 (1996);
52. John Perry Barlow, A Declaration of the Independence of Cyberspace (visited Apr. 19, 1999) 〈http://www.eff.org/pub/Publications/John_Perry_Barlow/ barlow_0296.declaration (on file with the Harvard Law School Library).
53. See, e.g., Lawrence Lessig, Symposium: Emerging Media Technology and the First Amendment: The Path ofCyberlaw, 104 YALE LJ. 1743,1745 (1995) ("What is special about the common law here is its constructive function. What recommends it is the process that it offers, with its partial answers, to repeated if slightly varied questions, in a range of contexts with a world of different talent and ideals.").
54. See Frank H. Easterbrook, Cyberspace and the Law of the Horse, 1996 U. Cm. LEGAL F. 207, 208 (1996) (arguing that rather than struggling to develop a body of "cyberlaw," those who wish to bring order to Internet transactions should concentrate on the optimal means of applying existing legal principles to the new medium).
55. See, e.g., Charles Gasparino & Michael Schroeder, SEC Steps up Oversight of Online Brokerages, WALL ST. J., Mar. n, 1999, at Ci ("Last week, the agency introduced a proposed rule that some online brokers believe is aimed squarely at their industry. The SEC proposed that a broker-dealer would violate securities rules if the firm didn't have the 'operational capability' to handle their day-to-day activities.").
56. See, e.g., Frederick Schauer, The Speech of Law and the Law of Speech, 49 ARK. L. REV. 687, 690-91 (1997) (characterizing the registration requirements of the Securities Act of 1933 as content-based prior restraints on speech that are not understood as conflicting with the First Amendment).
57. See Johnson & Post, supra note 46, at 1378-81.
58. Abrams v. United States, 25 U.S. 616, 630 (1919) (Holmes, J., dissenting).
59. One study projects a worldwide Internet usership of 250 to 300 million people by the end of the year 2000. See Donald J. Karl, Stale Regulation of Anonymous Internet Use After ACLU of Georgia v. Miller, 30 ARIZ. ST. L.J. 513, 514 (1998). Concern that access has landed disproportionately in the hands of the well-off is notable. See, e.g.,
60. Beth Lipton, Digital Divide an Income Gap, CNET NEWS (Aug. 20, 1998) 〈http://www.news.com/News/Item/o,4,25470,00.html (on file with the Harvard Law School Library) (observing that Internet access tracks racial and economic lines).
61. See, e.g., Amy Harmon, Guess Who's Going On Line, N.Y. TIMES, Mar. 26, 1998, at G1 ("The newfound infatuation with E-mail... is prodding scattered families to reconvene in Cyberspace ....").
62. See, e.g., Bob Tedeschi, 'cp: A Year to Make Good on Electronic Commerce, N.Y. TIMES ON THE WEB (Dec. 29, 1998) 〈http://www.nytimes.com/library/tech/98/i2/cyber/commerce/29com merce.html (on file with the Harvard Law School Library) (asserting that 1998 would "go down as the year e-commerce began to crawl... into the mainstream consumer consciousness").
63. HOWARD RHEINGOLD, THE VIRTUAL COMMUNITY 5 (1993) (defining "virtual communities" as "social aggregations that emerge from the Net when enough people carry on ... public discussions long enough, with sufficient human feeling, to form webs of personal relationships in Cyberspace").
64. See Lawrence Lessig, The Path of Cyberlaw, 104 YALE L.J. 1743, 1745-46 (1995) [hereinafter Lessig, Path] ("What will be new are the communities that this space will allow, and the constructive ... possibilities that these communities will bring.").
65. Id. at 1746.
66. Jonathan Zittrain, The Rise and Fall of Sysopdom, 10 HARV. J.L. & TECH. 495,497 (1997).
67. See David R. Johnson David Post, Law and Borders - The Rise of Law in Cyberspace, 48 STAN. L. REV. 1367, 1387 (1996) (discussing the "Net community" and "Cyberspace citizens").
68. See Anne Wells Branscomb, Anonymity, Autonomy, and Accountability: Challenges to the First Amendment in Cyberspaces, 104 YALE L.J. 1639, 1640 (1995) (stating that experimental user groups called virtual communities "can be said to occupy separate and diverse Cyberspaces").
69. See, e.g., ESTHER DYSON, RELEASE a.i, at 46-47 (1998) (discussing the "great Net hope");
70. MIKE GODWIN, CYBER RIGHTS 15 (1998) (arguing that virtual communities "promise to restore" a "stable sense of community, of place" in America); RHEINGOLD, supra note 4, at 14 (recognizing the Internet's potential to "revitalize the public sphere").
71. The forms of possible online life, as defined by the computer programming code, are many, and not all of them have yet been seen or experienced; no one "inherent" Cyberspace community exists. See Lawrence Lessig, The Zones of Cyberspace, 48 STAN. L. REV. 1403, 1408 (1996) [hereinafter Lessig, Zones] (claiming that "Cyberspace is socially constructed"). But see GODWIN, supra note 10, at 302 (discussing the "values inherent in the Net"). Moreover, the shape of online community life has already begun to transform. From the early days of interactive, noncommercial, textual exchange, Internet use has moved toward increasingly less interactive, multimedia, commercial intercourse.
72. See Andrew L. Shapiro, The Disappearance of Cyberspace and the Rise of Code, 8 SETON HALL CONST. L.J. 703, 710 (1998) (describing how early, vibrant communities are being supplanted by less creative uses of the Net).
73. See Lawrence Lessig, What Things Regulate Speech: CDA 2.0 vs. Filtering, 38 JURIMETRICS J. 629, 669 (1998) [hereinafter Lessig, Speech] (listing these factors, in addition to law, as factors involved in regulating online speech).
74. Many commentators have argued that regardless of how carefully designed Internet legal rules are, they may be irrelevant because they are largely unenforceable, as a result of both jurisdictional and practical constraints. See, e.g., Lessig, Zones, supra note n, at 1405-06 (discussing the viewpoints of regulation skeptics, including Johnson and Post). However, as Professor Lessig suggests, this skepticism may be overstated, particularly considering the law's potential to regulate programming code. See id.
75. As Professor Lessig has written, "[t]hey are making, not finding, the nature of Cyberspace; their decisions are in part responsible for what Cyberspace will become." Lawrence Lessig, Reading the Constitution in Cyberspace, 45 EMORY L.J. 869, 904 (1996) [hereinafter Lessig, Reading] (discussing how courts' "findings" about Cyberspace impact the shape Cyberspace takes).
76. Political scientist Robert Putnam, among others, has prominently discussed this civic decline. See Robert D. Putnam, Bowling Alone: America's Declining Social Capital, 6 J. DEMOCRACY 65, 65-66 (1995) (charting the declining "vibrancy of American civil society" over the past several decades and contrasting modern America with the early America of civic association and engagement).
77. GODWIN, supra note 10, at 15.
78. RHEINGOLD, supra note 4, at 14.
79. See, e.g., DAVID B. WHITTLE, CYBERSPACE: THE HUMAN DIMENSION 287-88 (1997) (suggesting social "disjuncture" due to technology); Putnam, supra note 15, at 75 (describing the role in community's decline played by the increasingly private and individualized leisure fostered by technology);
80. Richard E. Sclove, Making Technology Democratic, in RESISTING THE VIRTUAL LIFE 85, 85 (James Brook lain A. Boal eds., 1995) (discussing technology's potential to weaken community interactions).
81. But see BENEDICT ANDERSON, IMAGINED COMMUNITIES 40-49 (1983) (explaining how the rise of print media helped create national community).
82. See, e.g., Putnam, supra note 15, at 76 (expressing interest in the potential for electronic networks either to contribute to or to stem civic decline).
83. See Robert C. Post, Community and the First Amendment, 29 ARIZ. ST. L.J. 473,473 (1997).
84. See, e.g., Gregory S. Alexander, Dilemmas of Group Autonomy: Residential Associations and Community, 75 CORNELL L. REV. i, 17-33 (1989) (summarizing the fundamental debate about the nature of legal rights, duties, and identity).
85. See generally STEPHEN MULHALL & ADAM SWIFT, LIBERALS AND COMMUNITARIANS (1992) (exploring communitarian and liberal claims). This debate certainly affects an analysis of how virtual communities may or may not mesh with American law and society. As Professor Alexander notes, depending on one's ideological orientation, the proliferation of voluntary associations (arguably the proper label for emerging virtual "communities") may or may not enhance true community. See Alexander, supra, at 23.
86. See Alexander, supra note 21, at 26-27. This Part formulates a working definition of "community" broad enough to allow those with varying ideologies to make use of the analysis, realizing that one's fundamental conception of the role and meaning of community will have much to do with one's understanding of the role and meaning of Cyberspace groups.
87. See id. at 24 (explaining the traditional, territorial conception of community).
88. For example, some of the most successful early virtual communities, such as the WELL, had a geographic center (in the WELL's case, the San Francisco Bay area) and involved community members meeting in real-space. See, e.g., RHEINGOLD, supra note 4, at 2 ("The WELL felt like an authentic community to me from the start because it was grounded in my everyday physical world.").
89. See Alexander, supra note 21, at 25-26 (discussing an "experiential" conception of community).
90. See id. at 25; Jim Falk, The Meaning of the Web, 14 INFO. SOC'Y 285, 289 (1998).
91. See Philip Giordano, Invoking Law as a Basis for Identity in Cyberspace, 1998 STAN. TECH. L. REV. 1, 8 〈http://stlr.stanford.edu/STLR/Articles/98_STLR_i/ (on file with the Harvard Law School Library).
92. See Post, supra note 20, at 476-77.
93. This deference can be seen in the legal standards developed for obscenity cases. See, e.g., William S. Byassee, Jurisdiction of Cyberspace: Applying Real World Precedent to the Virtual Community, 30 WAKE FOREST L. REV. 197, 207-08 (1995) (discussing the federal obscenity test of local "contemporary community standards" articulated in Miller v. California, 413 U.S. 15 (1973)).
94. The Supreme Court has identified two rationales supporting a "freedom of association" - a First Amendment-based freedom of expressive association, see NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460 (1958), and a privacy-based freedom of intimate association, see Roberts v. Jaycees, 468 U.S. 609, 617-18 (1984). See Lee Tien, Who's Afraid of Anonymous Speech? McIntyre and the Internet, 75 OR. L. REV. 117, 176-80 (1996) (discussing freedom of association doctrine);
95. Giordano, supra note 27, ¶ 29 (same).
96. See Henry H. Perritt, Jr., Cyberspace Self-Government: Town Hall Democracy or Rediscovered Royalism?, 12 BERKELEY TECH. L.J. 413, 451-63 (1997). In many cases, "contract law provides the mechanism for beginning the process of self-governance" because territorial sovereigns enforce these private arrangements. Id. at 476.
97. See Giordano, supra note 27, ¶ 10 ("To the uninitiated, it may seem ironic and even dubious that a sense of community can arise within the sterile environment of a computer network.").
98. See, e.g., RHEINGOLD, supra note 4, at 2.
99. See, e.g., GODWIN, supra note 10, at 23 (urging greater understanding of virtual community life).
100. Patrick T. Egan, Note, Virtual Community Standards: Should Obscenity Law Recognize the Contemporary Community Standard of Cyberspace?, 30 SUFFOLK U. L. REV. 117, 131 (1996).
101. See Shapiro, supra note 11, at 710.
102. See, e.g., GODWIN, supra note 10, at 5-8;
103. Byassee, supra note 29, at 200-03;
104. Lessig, Path, supra note 5, at 1746-47;
105. Zittrain, supra note 7, at 496-98.
106. See generally RHEINGOLD, supra note 4 (detailing various types of online life).
107. Called BBSs, these are sites onto which users post messages either publicly or privately to other users. See GODWIN, supra note 10, at 7;
108. RHEINGOLD, supra note 4, at 8-9.
109. These systems are high-capacity BBSs, such as the WELL or AOL, which often offer additional services, such as real-time "chatting." See GODWIN, supra note 10, at 7.
110. Also known as IRC, this program enables groups of people to congregate in "chat rooms" for real-time discussion in text. See RHEINGOLD, supra note 4, at 176-88.
111. Usenet is a large network of newsgroups accessible by the Internet, segregated by topic, onto which anyone can post messages in response to those posted by others, and in which the history of the discussion remains accessible to all who visit. See GODWIN, supra note 10, at 7-8.
112. Often called "listservs," e-mail lists are mass-mailings sent to other members of a group. Recipients can often respond to the entire group, or without other members knowing, only to particular group members. See David S. Bennahum, The Hot New Medium Is . . . Email, WIRED, Apr. 1998, at 104.
113. These are the abbreviations for "Multi-User Dungeons" and "MUDs object-oriented," respectively - sophisticated, fictitious, user-created worlds in which players invent roles and interact in a variety of public and private spaces. See GODWIN, supra note 10, at 40;
114. RHEINGOLD, supra note 4, at 145-75.
115. See GODWIN, supra note 10, at 7-8.
116. See Byassee, supra note 29, at 200.
117. See Katie Hafner, The Epic Saga of The Well, WIRED, May 1997, at 98. The WELL's geographic center was not originally intended, but as members began to meet in real-space to supplement their online interactions, geographic proximity among members became important. See id.
118. Many writers have extensively chronicled WELL life. See, e.g., GODWIN, supra note 10, at 34-40;
119. RHEINGOLD, supra note 4, at 1-64;
120. Cliff Figallo, The WELL: A Regionally Based On-Line Community on the Internet, in PUBLIC ACCESS TO THE INTERNET 49, 49-61 (Brian Kahin & James Keller eds., 1995);
121. Hafner, supra note 46, at 98.
122. ECHO, a similar system based in New York City, has also received considerable attention. See, e.g., STACY HORN, CYBERVILLE (1998) (providing a window into the online lives of ECHO members).
123. Julian Dibbell, A Rape in Cyberspace: How an Evil Clown, a Haitian Trickster Spirit, Two Wizards, and a Cast of Dozens Turned a Database into a Society, in INTERNET DREAMS 293, 295-96 (Mark Stefik ed., 1996);
124. see Giordano, supra note 27, ¶ 49-72.
125. See Giordano, supra note 27, ¶ 60-62 (describing how a character named "Mr. Bungle" infiltrated the MOO, raping one character and forcing another to "enact a ritual of self mutilation").
126. See id. ¶ 62-72.
127. See Perritt, supra note 31, at 437-42;
128. Zittrain, supra note 7, at 498-501.
129. See Zittrain, supra note 7, at 501-06.
130. See Perritt, supra note 31, at 449-50.
131. See GODWIN, supra note 10, at 133-37.
132. This practice is called "lurking." See WHITTLE, supra note 18, at 60.
133. Mike Godwin provides a helpful introductory description of the Web. See GODWIN, supra note 10, at 5-9.
134. See, e.g., Falk, supra note 26, at 290.
135. See Janice Maloney, Finding Some Warm Havens in the Web's Information Blizzard, N.Y. TIMES, June 21, 1998, § 15, at 25.
136. See Amy Harmon, On-Line Trail to an Off-Line Killing, N.Y. TIMES, Apr. 30, 1998, at A1.
137. Even aggrieved lawyers may avail themselves of such Web-based interactivity - through the "Greedy Associates" club on the "Yahoo" website. See Carl S. Kaplan, Lawyers on the Bottom Rung Take Aim at the Top, N.Y. TIMES ON THE WEB (Nov. 27, 1998) http://www.nytimes.com/library/tech/98/11/cyber/cyberlaw/27law.html (on file with the Harvard Law School Library).
138. One of the most prominent accounts of the commercial potential of the Internet suggests that commercial intercourse generates community. See JOHN HAGEL III & ARTHUR G. ARMSTRONG, NET GAIN: EXPANDING MARKETS THROUGH VIRTUAL COMMUNITIES at xi (1997) ("Our view is that the profit motive will in fact create new forms of virtual communities whose strong commercial element will enhance and expand the basic requirements of community - trust and commitment to each other.");
139. see also DYSON, supra note 10, at 57-61 ("Many markets are communities, not just mechanisms for setting prices.").
140. Community cooperative networks are locally-based bulletin board systems, designed to supplement geographic communities by providing both Internet access and forums for discussion of local concerns. See STEPHEN DOHENY-FARINA, THE WIRED NEIGHBORHOOD 124-37 (1996);
141. Frank Odasz, Issues in the Development of Community Cooperative Networks, in PUBLIC ACCESS TO THE INTERNET, supra note 47, at 115,118-19.
142. See, e.g., DOHENY-FARINA, supra note 62, at 37;
143. LAURA J. GURAK, PERSUASION AND PRIVACY IN CYBERSPACE 132 (1997);
144. WHITTLE, supra note 18, at 411.
145. Cf., e.g., Shapiro, supra note n, at 714-15 (anticipating a blending of life in real-space and Cyberspace);
146. Jon Katz, The Digital Citizen, WIRED, Dec. 1997, at 68 (observing that the online world features many of the "real" world's most active citizens).
147. See infra p. 1635.
148. See, e.g., Branscomb, supra note 9, at 1678-79 (cautioning against making such assumptions about Cyberspace).
149. ITHIEL DE SOLA POOL, TECHNOLOGIES OF FREEDOM 7 (1983),
150. quoted in M. Ethan Katsh, Rights, Camera, Action: Cyberspatial Settings and the First Amendment, 104 YALE L.J. 1681, 1689 (1995) (internal quotation marks omitted).
151. See, e.g., ACLU v. Reno, 929 F. Supp. 824, 881 (E.D. Pa. 1996) (Dalzell, J., concurring) ("[T]he Internet has achieved, and continues to achieve, the most participatory marketplace of mass speech that this country - and indeed the world - has yet seen."), affd, 521 U.S. 844 (1997);
152. GODWIN, supra note 10, at 302.
153. Lessig, Reading, supra note 14, at 888. Lessig notes that "[c]yberspace has no permanent nature, save the nature of a place of unlimited plasticity." Id.
154. The Internet began as a government entity for defense research, and one key question is who will administer it in the future. See infra pp. 1657-58, 1660.
155. See Michael W. Carroll, Garbage In: Emerging Media and Regulation of Unsolicited Commercial Solicitations, u BERKELEY TECH. LJ. 2, §HLB (Fall 1996) http://www.Iaw.berke ley.edu/journals/btlj/articles/n-2/carroll.html (on file with the Harvard Law School Library),
156. See, e.g., Jim Evans, Portals Open Doors to Convergence at CES, CNN ONLINE (Jan. 8, 1999) http://cnn.com/TECH/computing/99oi/o8/portal.ces.idg/index.html (on file with the Harvard Law School Library) (describing how "[t]he portals firmly believe that theirs is the content medium of the future, and it has only just begun");
157. see also Andrew L. Shapiro, New Voices in Cyberspace, THE NATION, June 8, 1998, at 36, 36-37 (discussing Microsoft Internet software, by which Microsoft can "simply steer [users] -subtly but strongly -where it wants them to go").
158. In constitutional law, a "designated public forum" is an area under government control provided for expressive purposes and thus subject to First Amendment protections. Many authors have advocated designating all or part of the Internet as a public forum. See, e.g., Steven G. Gey, Reopening the Public Forum - From Sidewalks to Cyberspace, 58 OHIO ST. LJ. 1535, 1618-34 (1998) (calling for a reworking of the public forum doctrine using Justice Kennedy's functional approach and for extending coverage to the Internet);
159. David J. Goldstone, A Funny Thing Happened on the Way to the Cyber Forum: Public vs. Private in Cyberspace Speech, 69 U. COLO. L. REV. i, 9-10 (1998)
160. (advocating treating dissimilar spaces on the Internet differently, and designating some as public forums); Robert Kline, Freedom of Speech on the Electronic Village Green: Applying the First Amendment Lessons of Cable Television to the Internet, 6 CORNELL J.L. PUB. POL'Y 23, 57-58 (1996) (describing the Internet as a public forum -"an open meeting place for all members of the public where ideas are exchanged, issues are debated, and self expression flourishes").
161. See, e.g., Lessig, Reading, supra note 14, at 892-93 (describing the prevailing trend toward zoning).
162. See Lessig, Zones, supra note n, at 1410-11 (discussing the potential for the Internet to prevent deliberation);
163. Cass R. Sunstein, The First Amendment in Cyberspace, 104 YALE L.J. 1757, 1785-86 (1995)
164. (same); Andrew L. Shapiro, Keeping On-Line Speech Free: Street Corners in Cy-berspace, THE NATION, July 3,1995, at to, 10-11 (same);
165. cf. Clay Calvert, Regulating Cyberspace: Metaphor, Rhetoric, Reality, and the Framing of Legal Options, 20 HASTINGS COMM. ENT. L.J. 541, 557-59 (1998) (discussing how the widely used "information superhighway" metaphor improperly emphasizes communication as transmission and de-emphasizes communication as deliberation).
166. CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH 51 (1993) (discussing modern communications technologies generally).
167. See, e.g., POOL, supra note 67, at 224-25. But see
168. Glen O. Robinson, The Electronic First Amendment: An Essay for the New Age, 47 DUKE L.J. 899, 907, 968 (1998) (arguing that Pool's fear of overregulation may be excessive).
169. See POOL, supra note 67, at 224-25, 250. Pool examines the regulatory response to communications technologies since the printing press and concludes that historically, when new communications technologies were introduced, "regulation seemed to be a technical necessity." Id. at i. Consequently, "[a]s new technologies have acquired the functions of the press, they have not acquired the rights of the press." Id. at 250. For Pool, "[networked computers will be the printing presses of the twenty-first century" and must therefore remain "free of public control." Id. at 224-25-
170. See infrapp. 1639-54.
171. See Lawrence Lessig, The Constitution of Code: Limitations on Choice-Based Critiques of Cyberspace Regulation, 5 COMMLAW CONSPECTUS 181, 189-90 (1997) [hereinafter Lessig, Constitution]. Filtering technology is currently rough-edged and may exclude information that the consumer actually wants. However, some writers, such as Lessig, argue that even a "perfect" filter may still be dangerous because it allows people to tune out too much.
172. See Lessig, Zones, supra note ii, at 1410.
173. See Jerry Herman Daniel J. Weitzner, Abundance and User Control: Renewing the Democratic Heart of the First Amendment in the Age of Interactive Media, 104 YALE L.J. 1619, 1629, 1633-35 (1995)-
174. See Chip Bayers, The Promise of One to One (A Love Story), WIRED, May 1998, at 130, 186 (discussing the hope for tailored commerce).
175. Lessig, Zones, supra note n, at 1410.
176. See, e.g., Sunstein, supra note 75, at 1788.
177. See, e.g., James Niccolai, Set-Top Boxes, Home Networking Grow Up, PC WORLD ONLINE (Jan. 2, 1999) http://cnn.coni/rECH/computing/99oi/ci2/homenet.idg/ (on file with the Harvard Law School Library) (noting emerging Internet technologies).
178. See, e.g., Matt Richtel, Videophone Call-ins On a Cable TV Channel, N.Y. TIMES, Oct. 22, 1998, at 63 (describing a cable television channel that urges viewers to call in with Internet-based videophones).
179. See Charles McGrath, The Internet's Arrested Development, N.Y. TIMES, Dec. 8, 1996, §6, at 80 flocking forward to "when the Net becomes invisible and we can finally stop talking about it").
180. Shapiro, supra note n, at 710.
181. Shapiro argues that this distinction is already erroneous. See id. at 718.
182. Lessig, Path, supra note 5, at 1747.
183. See Lessig, Constitution, supra note 80, at 191.
184. See Lessig, Reading, supra note 14, at 909 ("These are our democratic choices, and real choices they are.");
185. Giordano, supra note 27, ¶ 74-75 (arguing that law defines significant aspects of communities); see also infra pp. 1695-97.
186. Giordano, supra note 27, ¶ 31.
187. Id. ¶ 69.
188. See id. ¶ 30.
189. Communications Decency Act of 1996, Pub. L. No. 104-104, tit. V, no Stat. 56, 133-43 (1996).
190. See Reno v. ACLU, 521 U.S. 844, 849 (1997). Congress responded to the invalidation of the CDA by passing the Child Online Protection Act (COPA), Pub. L. No. 105-277, §§1401-06, 112 Stat 2681 (1999) (to be codified at 47 U.S.C. §201), which was itself blocked by a restraining order in 1998, see Carl S. Kaplan, Anti-Pom Law Enters Court; Delay Soon Follows, N.V. TIMES ON THE WEB (Nov. 20, 1998) http://www.nytimes.com/library/tech/98/it/cyber/cyberlaw/2olaw. html (on file with the Harvard Law School Library), and more recently by a preliminary injunction, see ACLU v. Reno, No. Civ-A.gS-ssgi, 1999 WL 44852, at *2 (E.D. Pa. Feb. I, 1999).
191. The Court announced this standard in Miller v. California, 413 U.S. 15, 30-34 (1973), in response to the confusion generated by Roth v. United States, 354 U.S. 476 (1957), which many had interpreted as mandating that courts should determine a national obscenity standard. See Byassee, supra note 29, at 207-08.
192. 74 F.sd 701 (6th Cir. 1996).
193. See id. at 711-12. Several commentators advocate a "community of cyberspace" standard. See Byassee, supra note 29, at 209-10;
194. Rebecca Dawn Kaplan, Cyber-Smut: Regulating Obscenity on the Internet, 9 STAN. L. & POL'Y REV. 189, 194 (1998) (proposing the use of Internet surveys as evidence of community standards in cyberspace);
195. Egan, supra note 35, at 147 (proposing that judges instruct juries to apply the obscenity standard of the Cyberspace community).
196. But see Timothy S.T. Bass, Comment, Obscenity in Cyberspace: Some Reasons for Retaining the Local Community Standard, 1996 U. Cm. LEGAL F. 471,472 (arguing in favor of the current standard).
197. See Thomas, 74 F.3d at 705-06, 711-12 (noting that in this case the bulletin board operator had established methods to determine the location of individuals downloading materials, as well as actual knowledge of where the information was sent).
198. Cf. Branscomb, supra note 9, at 1653 (linking the question of which jurisdictional rules should apply to where the detrimental consequences of Internet use occurred).
199. See Byassee, supra note 29, at 209-10 ("[CJomputer users - or at least those individuals who use their computers to join the Cyberspace community - no longer participate as members of the local community in significant ways in which VCR owners or adult bookstores still must participate.").
200. Cf. Stanley v. Georgia, 394 U.S. 557, 558-59 (1969) (holding that possession of obscene materials in one's home is protected by the First Amendment).
201. See Byassee, supra note 29, at 210 (noting that the precise formulation of such a broadly-framed standard may "prove to be ... elusive").
202. See John S. Zanghi, "Community Standards" in Cyberspace, 21 U. DAYTON L. REV. 95, 112-13 (1995).
203. Additionally, to retain control over these prosecutions, local communities must continue to make convincing arguments about local harms, particularly because dormant commerce clause concerns have already led two jurisdictions to constrain state attempts to regulate Internet indecency. See ACLU v. Johnson, 4 F. Supp. 2d 1029, 1034 (D.N.M. 1998); American Libraries Ass'n v. Pataki, 969 F. Supp. 160, 183-84 (S.D.N.Y. 1997).
204. The Supreme Court highlighted the alternative of user-controlled filters in its rejection of the CDA's indecency provision. See Reno v. ACLU, 521 U.S.
205. See Mainstream Loudoun v. Board of Trustees, 2 F. Supp. ad 783, 795-96 (E.D. Va. 1998) (holding that public libraries providing Internet access may not, consistent with the First Amendment, block sites based on content); Pamela Mendels, Court Tackles New Angle on Library Internet Filtering, N.Y. TIMES ON THE WEB (Dec. 4, 1998) http://www.nytimes.com/library/ tech/98/12/cyber/cyberlaw/o4law.html (on file with the Harvard Law School Library) (discussing a California case in which a mother sued a public library for her child's exposure to Internet pornography). The California case was dismissed without comment by a state judge.
206. See Matt Richtel, Suit to Limit Net Access at a Library Is Dismissed, N.Y. TIMES, Jan. 21, 1999, at 63.
207. See Mainstream Loudoun, 2 F. Supp. 2d at 795, 797.
208. See id. at 795-96.
209. See Pamela Mendels, Issues That Defined the Year for Schools and Computers, N.Y. TIMES ON THE WEB (Dec. 30, 1998) ttp://www.nytimes.com/library/tech/98/12/cyber/education/3oed ucation.html (on file with the Harvard Law School Library) (discussing the controversy over the "E-rate" program, for which funding was dramatically cut in 1998).
210. Elsewhere in this Development, Internet libel is considered in greater detail than in this Part's community-framed discussion. See infra pp. 1612-22.
211. Zittrain, supra note 7, at 496.
212. 776 F. Supp. 135 (S.D.N.Y. 1991).
213. See id. at 144.
214. No. 31063-94, 1995 WL 323710 (N.Y. Sup. Ct. May 24, 1995).
215. See id. at *77.
216. See 47 U.S.C. § 230 (1994); David J. Loundy, E-LAW4: Computer Information Systems Law and System Operator Liability, 21 SEATTLE U. L. REV. 1075, 1089-90 (1998) (discussing the CDA's safe harbor provision and its relationship to Stratton Oakmont).
217. 129 F.3d 327 (4th Cir. 1997).
218. Id. at 330.
219. Id. at 331.
220. 992 p. Supp. 44 (D.D.C. 1998).
221. See id. at 47, 49-50.
222. See Carl S. Kaplan, Echoes of the Railroad Age in AOL Decision, N.Y. TIMES ON THE WEB (July 3, 1998) http://www.nytimes.cornyiibrary/tech/98/07/cyber/cyberlaw/03law.html (on file with the Harvard Law School Library).
223. See Blumenthal, 992 F. Supp. at 49.
224. Branscomb, supra note 9, at 1671.
225. Cf. Chris Gosnell, Hate Speech on the Internet: A Question of Context, 23 QUEEN'S L.J. 369, 420-22 (1998) (discussing the link between responsible behavior on the Internet and ISP sysops, the linchpins of content control).
226. See Loundy, supra note 119, at 1082-1105 (suggesting possible analytical analogies to ISPs, including press, disseminators, common carriers, traditional mail routers, public forums, bulletin boards, and broadcasters).
227. See, e.g., Carroll, supra note 71, § I.
228. See, e.g., Coalition Against Unsolicited Commercial Email (CAUCE) (visited Apr. 19, 1999) http://www.cauce.org (on file with the Harvard Law School Library).
229. See Daniel P. Dern, Postage Due on Junk E-mail - Spam Costs Internet Millions Every Month, INTERNETWEEK (May 4, 1998) ttp://www.techweb.com/se/directlink.cgi?INW1998o5 o4Sooo3 (on file with the Harvard Law School Library). Significantly, much of the spam that has been attacked to date has been fraudulent in nature. Some spammers promote fraudulent products, others forge return addresses to evade ISP filtering devices, and still others "hack" into an ISP's server to gather a list of e-mail addresses to target.
230. See, e.g., Janet Kornblum, AOL Sues Junk Emailer, CNET NEWS (Oct. 20, 1997) http://www.news.com/News/Item/o,4,15426,00. html (on file with the Harvard Law School Library) (describing suit in which AOL alleged that Prime Data committed computer crimes to gain access to the AOL network);
231. Joe Nickell, Juno Jumps on Spammers, WIRED NEWS (Nov. 25, 1997) http://www.wired.com/news/business/story/ 8788.html (on file with the Harvard Law School Library) (mentioning forged return addresses).
232. For example, AOL has nine suits pending in five states. See William McQuillen, AOL Sues to Stop Unsolicited E-mail to Customers, THE DETROIT NEWS ONLINE (Dec. 29, 1998) http://www.detnews.com/i998/technology/9812/29/1229019o.htm (on file with the Harvard Law School Library).
233. See Goldstone, supra note 73, at 63-65, 70 (discussing the implications of the initial, rather unsympathetic, commercial spam cases for future cases involving noncommercial speech).
234. 948 F. Supp. 436 (E.D. Pa. 1996).
235. See id. at 442.
236. Id. at 437. The court also held that AOL's server was not a public forum under the Pennsylvania constitution. See id. at 446.
237. 962 F. Supp. 1015 (S.D. Ohio 1997).
238. Id. at 1017. The court found that the ISP server was not analogous to either a public forum or a public utility. See id. at 1025-26. The CompuServe court's reasoning has subsequently been followed by another federal district court. See America Online v. IMS, 24 F. Supp. 2d 548, 550-52 (E.D. Va. 1998) (holding a bulk commercial e-mailer liable for trespass to chattels and violation of the Lanham Trademark Act for falsifying return addresses).
239. Pending legislation includes a proposal that all unsolicited commercial e-mail be labeled as such. See, e.g., CAUCE - Pending Legislation (visited Apr. 19, 1999) http://www.cauce.org/ legislation.html (on file with the Harvard Law School Library); Unsolicited E-mail - Statutes (visited Apr. 19, 1999) http://www.jmls.edu/cyber/statutes/email (on file with the Harvard Law School Library) (listing state and federal proposals). These CAUCE and John Marshall Law School pages provide helpful catalogs. See Jonathan Byrne, Squeezing Spam off the Net: Federal Regulation of Unsolicited Commercial E-mail, 2 W. VA. J.L. & TECH. 4, § IV (Feb. 14, 1998) http://www.wvjolt.wvu.edu/v2ii/byrne.htm (on file with the Harvard Law School Library) (analyzing major 1997 federal bills);
240. Janet Kornblum, Netizen Sues Spam Firm, CNET NEWS (July 23, 1998) http://www.news.com/News/Item/o,4,24544,oo.html (on file with the Harvard Law School Library) (describing a suit under the state of Washington's spam law);
241. Courtney Macavinta, Spam Bill Raises Free-speech Flags, CNET NEWS (Sept. 1,1998) http://www.news.com/News/Item/o,4,25935,oo.html (on file with the Harvard Law School Library) (analyzing a California anti-spam bill).
242. See Pamela Mendels, A Case of Spam and Free Speech at Intel, N.Y. TIMES ON THE WEB (Dec. 11, 1998) http://www.nytimes.com/library/tech/98/12/cyber/eyberlaw/11law.html (on file with the Harvard Law School Library) (describing Intel's efforts to prevent a former employee from mass e-mailing Intel employees on the company network); see also infra pp. 1623-24, 1630-34.
243. See Mark D. Robins, Electronic Trespass: An Old Theory in a New Context, COMPUTER LAWYER, July 1998, at 1, 4 (advocating the use of trespass claims against spammers).
244. See, e.g., Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 562-63 (1980) ("The Constitution therefore accords a lesser protection to commercial speech than to other constitutionally guaranteed expression.").
245. Cf. Goldstone, supra note 73, at 63-65, 70 (suggesting caution when denying First Amendment protections to commercial e-mailers).
246. See Shapiro, supra note 75, at 14 (arguing for the need for public forums in cyberspace).
247. Robert M. O'Neil, Free Speech on the Internet: Beyond "Indecency", 38 JURIMETRICS J. 617, 626 (1998) (citing dicta in a federal district court case, Sanger v. Reno, 966 F. Supp. 151 (E.D.N.Y. 1997), indicating that private ISPs could readily prohibit all discussion of abortion on their servers).
248. Cf. Vicki Been, "Exit" as a Constraint on Land Use Exactions: Rethinking the Unconstitutional Conditions Doctrine, 91 COLUM. L. REV. 473, 506-07, 517 (1991) (discussing the theory of competitive federalism and Tiebout's work suggesting that local geographic communities compete for residents).
249. Branscomb, supra note 9, at 1662.
250. See Keith J. Epstein & Bill Tancer, Enforcement of Use Limitations by Internet Service Providers: "How to Stop That Hacker, Cracker, Spammer, Spoofer, Flamer, Bomber," 19 HASTINGS COMM. & ENT. L.J. 661, 680 (1997). AOL, for example, has adopted such policies.
251. See, e.g., AOL Online Conduct, AOL Rules of the Road, AOL Usenet Terms of Service (visited Apr. 19, 1999) http://www.aolsucks.org/censor/cens-tosdir.html (on file with the Harvard Law School Library) (listing AOL policies).
252. See Johnson & Post, supra note 8, at 1388;
253. Shapiro, supra note 75, at 11 (describing termination of Prodigy protestors).
254. See, e.g., Dibbell, supra note 48, at 300-08 (LambdaMoo);
255. Hafner, supra note 46, at 121-22 (the WELL).
256. See Perritt, supra note 31, at 449-50 (discussing the use of trespass theory to enforce member termination contracts).
257. No. Civ.A. 97-5931, 1997 WL 634384 (E.D. Pa. Sept. 30, 1997). Cyber also sued WorldCom, another ISP, for a similar summary termination. See Newsflash: June 24, 1997 (visited Apr. 19, 1999) http://www.jmls.edu/cyber/cases/cp-wco.html (on file with the Harvard Law School Library).
258. Apex, 1997 WL 634384, at *3. More recently, an ISP member sued for termination without notice after the ISP mistakenly accused the member of spamming. See Carl S. Kaplan, Filmmaker Sues ISP over Termination of E-Mail Service, N.Y. TIMES ON THE WEB (Aug. 14, 1998)
259. http://www.nytimes.com/library/tech/98/o8/cyber/cyberlaw/14law.html (on file with the Harvard Law School Library) (discussing Peter Hall's federal suit against Earthlink).
260. See Kaplan, supra note 154.
261. See generally Goldstone, supra note 73 (explaining the feasibility of designating Internet providers as state actors or as public forums).
262. Cf. Lessig, Zones, supra note 11, at 1410 n.26 (noting that one must develop "a certain social capital to function well" in cyberspace and that "[e]xit, or banishment, is the forfeiting of that social capital");
263. 9 (discussing the difficulty and cost of altering e-mail addresses when companies providing addresses change).
264. See Branscomb, supra note 9, at 1654-55. The public-private issue has arisen in the area of discrimination against the disabled. Many early online interactions had a liberating potential for disabled people, because early text-based formats lent themselves to translation for the blind and deaf.
265. 7. However, as sites became more interactive and graphical, the disabled became less able to navigate them.
266. See Michael Moeller, Disabling Web Barriers, PC WEEK ONLINE (May 12, 1998) http://www.zdnet.com/pcweek/reviews/o511/nwai.html (on file with the Harvard Law School Library);
267. see generally Debra Nussbaum, Bringing the Visual World of the Web to the Blind, N.Y. TIMES, Mar. 26, 1998, at G8 (describing efforts to make the Internet "more accessible to blind, deaf and disabled users"). The Department of Justice has issued a statement that the Americans With Disabilities Act (ADA) will cover government entities on the Internet, as well as those serv-ices deemed to be "public accommodations." See Moeller, supra. How this will be enforced and which Internet entities will be labeled "public accommodations" remains to be determined.
268. Cheris Kramarae, Technology Policy, Gender, and Cyberspace, 4 DUKE J. GENDER L. & POL. 149, 152 (1997).
269. See id. at 151-54; Giordano, supra note 27, ¶ 37.
270. See, e.g., WHITTLE, supra note 18, at 272 (discussing the potential for gender equalization online); cf.
271. Roger O. Crockett, Invisible - And Loving It, BUSINESS WEEK, Oct. 5, 1998, at 124 (describing how minority entrepreneurs find the Internet a haven from real-space discrimination).
272. See GODWIN, supra note 10, at 103;
273. Branscomb, supra note 9, at 1654-55, 1673;
274. Giordano, supra note 27, ¶ 41-45.
275. See, e.g., Giordano, supra note 27, ¶ 39 (outlining the success of single-sex discussion groups on the WELL).
276. See GODWIN, supra note 10, at 103.
277. See Giordano, supra note 27, ¶ 43.
278. Id. ¶ 44.
279. See, e.g., Branscomb, supra note 9, at 1673.
280. See GODWIN, supra note 10, at 114 (foreshadowing the effects of strong government regulation). Godwin's observation that "online forums, when left to speak in freedom, tend to become more tolerant places over time" is questionable, although his concerns about state intervention are generally well-voiced. Id.
281. Compare Giordano, supra note 27, ¶ 11-13 (citing the beneficial effects of anonymity and identity creation on community formation), wit
282. h DYSON, supra note 10, at 64-65 (arguing that real community requires identity over time, which is impossible with anonymity).
283. See also SHERRY TURKLE, LIFE ON THE SCREEN: IDENTITY IN THE AGE OF THE INTERNET 177-269 (1995) (discussing the ramifications for personal identity of interacting via constructed online identities).
284. See Tien, supra note 30, at 122 (advocating a freedom of association rationale for anonymity protection).
285. See Lessig, Reading, supra note 14, at 876-82.
286. 977 F. Supp. 1228 (N.D. Ga. 1997).
287. See id. at 1233.
288. The Court recognized this right in McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995).
289. See Tien, supra note 30, at 123-25.
290. See id. at 122, 176 ("Because social interaction on the Internet provides great potential for self-definition through association, protection of online anonymity is also justified by recognized rights of association . . . . Anonymity is linked to speech as association because the ability to bound groups fosters expression and intimacy . . . ."). Another anonymity issue certain to become more prominent involves "anonymous remailers" - Internet entities that agree to reroute com-
291. See Branscomb, supra note 9, at 1659-61.
292. Although many of these remailers are located abroad, state and federal regulations have been proposed that in some cases would hold remailers liable for damage caused by the anonymous messages they process. See, e.g., Noah Levine, Note, Establishing Legal Accountability for Anonymous Communication in Cyberspace, 96 COLUM. L. REV. 1526, 1528, 1572 (1996).
293. See, e.g., David G. Post, Pooling Intellectual Capital: Thoughts on Anonymity, Pseudonymity, and Limited Liability in Cyberspace, 1996 U. CHI. LEGAL F. 139, 168-69 (noting suggestions that laws embrace cyberspace pseudonymity, and the collective action it facilitates, by recognizing "e-persons" as corporate structures).
294. Sovereignty is more fully discussed elsewhere in this Development. See infra Part VI.
295. See Perritt, supra note 31, at 451-63 (discussing possible analogies to other self-governing, autonomous communities).
296. See, e.g., DYSON, supra note 10, at 52-57 (arguing that communities must set their own rules to thrive);
297. Byassee, supra note 29, at 219 (claiming that self-governance enhances the practical possibility of controlling online behavior);
298. Johnson & Post, supra note 8, at 1391-93 (advocating the delegation of governance to online communities because of community members' "interest in assuring the growth and health of their shared enterprise");
299. Perritt, supra note 31, at 419-25 (citing practical reasons, beyond fostering community, for delegating governance);
300. Giordano, supra note 27, ¶ 8 (noting that self-governance cements virtual communities).
301. See Henry H. Perritt, Jr., Dispute Resolution in Electronic Network Communities, 38 VILL. L. REV. 349, 400 (1993) (arguing that the need for law is greater once groups enlarge and norms erode).
302. See id.; see also infra pp. 1678-80.
303. Gosnell, supra note 128, at 422.
304. David Post's proposal of a Virtual Magistrate project and Jack Goldsmith and Lawrence Lessig's response provide an interesting background. See David E. Post, Engineering a Virtual Magistrate System (visited Apr. 19, 1999) http://www.law.vill.edu/ncair/disres (on file with the Harvard Law School Library);
305. Jack Goldsmith & Lawrence Lessig, Grounding the Virtual Magistrate (visited Apr. 19, 1999) http://www.law.vill.edu/ncair/disres (on file with the Harvard Law School Library).
306. See Lessig, Reading, supra note 14, at 904.
307. See Lessig, Path, supra note 5, at 1752-53.
308. RHEINGOLD, supra note 4, at 310.