Beyond Our Control

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Book: Stuart Biegel, Beyond Our Control? Confronting the Limits of Our Legal System in the Age of Cyberspace. MIT Press, 2001

explores control of the Internet, cyberspace, the online world


Review

Excerpts from Douglas Galbi:

"New technologies enable new types of relationships. In "Beyond Our Control?" Stuart Biegel explores control of the Internet, cyberspace, the online world; that is, relationships mediated at least in part by new computer and communications technologies. Biegel, who is a faculty member of both the Graduate School of Education and Information Studies and the School of Law at UCLA, does not argue a general yes or no to the question "Beyond Our Control?" Instead, Biegel recognizes both means of control and limitations of control, and urges that one examine a range of tools and policies on a case-specific basis. The case-specific material provides useful description of key recent legal and policy issues related to the Internet. In addition, the case-specific material is integrated into a general framework for considering regulation in cyberspace.

Biegel shows that the Internet has not created a radically new world of unbounded individual freedom, but it has created new opportunities for persons and new challenges for existing regulation and for implementing new political choices. Some analogize the Internet to the "Wild West", the situation at the frontier of US expansion westward across North America. A fascinating part of Chapter 1 explores this analogy with respect to representations in popular "western" films. Progress in these films is general associated with those building "walled gardens", or at least farms. And in the film The Man Who Shot Liberty Valance, at a public meeting the bad guys hold signs saying "Keep the Range Open." In these films freedom is associated with building government and enforcing boundaries. This analysis suggests that the means for promoting freedom need to be thought through carefully in relation to the real circumstances of the time.

One way of thinking about appropriate regulation for cyberspace is through more current, more realistic analogies. Chapter 2 of the book asks "Just How Different is Cyberspace?" Is using the Internet like using a telephone? Is using the Internet like speaking on a street corner or in a park, or is the Internet like a shopping mall or a library? One answer is to argue that there are many different cyberspaces with different characteristics. That answer strikes me as facile and unsatisfactory; it merely points implicitly to the difficulty of bounding and describing cyberspace.

Chapter 2 explores different understandings of cyberspace, but ultimately does not show that these debates matter. This book uses terms like the Internet, online, and cyberspace rather indiscriminately, and different cyberspaces are implicitly invoked by the treatment of specific problems. For a specific problem in cyberspace, the book directs attention to the questions of how different the problem is from problems elsewhere, and whether the existing regulatory approach is sufficient to deal with the problem in cyberspace. While these questions are worthwhile, they tend to promote the status quo. Thinking about what persons want and need from new computer and communications technologies directs attention more to avenues for progress.

This book considers regulation in terms of addressing problems, but not in terms of furthering substantive goals. Chapter 3 considers regulation in relation to four problem categories: (1) dangerous conduct, (2) fraudulent conduct, (3) unlawful anarchic conduct, and (4) inappropriate conduct. These categories of problems are used to analyze regulatory challenges throughout the rest of the book. This categorization seems to be helpful for analyzing regulatory problems, and it encompasses more than enough material for this 452 page book. Nonetheless, it seems to me that at least some notice might have been taken of a broader, more affirmative role for regulation. Political choices about regulatory goals are often tentative and contradictory, and they are made and expressed through complex institutional mechanisms. Nonetheless they do exist, and some might argue that at least within certain bounds such goals should exist.

This book considers regulatory approaches to problems in terms of what it calls three regulatory models. The first is traditional national law. The discussion of traditional national law focuses on recent Internet-related US legislation: the Communications Decency Act of 1996, the Child Online Protection Act of 1998, the "No Electronic Theft" Act of 1997, and the Internet Tax Freedom Act of 1998. While the discussion of these laws, related litigation, and outcomes is useful, I didn't get much sense of "model" of traditional national law. Considering national laws over a longer period, and with respect to a range of countries and legal systems, might help one get a better sense of how traditional national law works.

The second regulatory model put forward is international agreements and cooperation. Chapter 6 discusses the World Intellectual Property Organization (WIPO) Copyright Treaty and the Internet Corporation for Assigned Names and Numbers (ICANN) Memorandum of Understanding, and the World Trade Organization. In addition to these rather common topics, Chapter 6 includes interesting discussions of the law of the sea, the law of aviation space, and the law of outer space. These discussions add significantly to one's sense of how international regulatory efforts play out.

The third proposed regulatory model is code-based regulation. Software greatly affects what persons can do, i.e. their de facto online rights and freedoms. Thus, for example, the standards that a foreign company builds into accounting software might play a major role in regulating the standards of accounting used in a country that has a relatively small number of businesses. Understanding the forces that shape software architecture can help to inform regulatory policy. The discussion of "code-based regulation" in this book makes a contribution in that regard.

The best part of the book seems to me to be Part III. That part includes chapters devoted to regulatory approaches to cyberterrorism, to consumer rights in cyberspace, to private digital copying by the average netizen, and to online hate. The chapter on cyberterrorism includes an interesting discussion of counteroffensive activity.

The book concludes with twenty regulatory principles. The principles are generally reasonable, but tend toward platitudes and truisms. Authors everywhere should recognize that lists of principles should contain no more than three, that principles should be stated in one short sentence, and that the best list of principles is a single golden rule.

Overall, this book provides a good descriptive introduction to a wide range of policy problems related to the Internet. It also attempts to provide a more general analytical framework for considering regulation. With respect to that much more challenging task, the book is less satisfying." (http://www.galbithink.org/biegel.htm)