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Using Communication Theory to Understand Cyberlaw and Its Discontents

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Using Communication Theory to Understand Cyberlaw and Its Discontents USING COMMUNICATION THEORY TO UNDERSTAND CYBERLAW AND ITS DISCONTENTS Dean Colby* Robert Trager** I believe that if we were forced to select the principle that supports and infuses all human aspiration we would find it in the objective of 1 maintaining communication with our fellows. I. INTRODUCTION The emergence of technologies permitting cheap, high-speed digital communication and nearly costless information distribution has disrupted traditional legal approaches to regulating information and communication. Do these new technologies and their users need new law—Cyberlaw2—to solve the problems that these technologies might pose to traditional social relations in the production and distribution of information?3 Not everyone agrees that new law is needed for new * Lecturer, Program for Writing and Rhetoric, University of Colorado at Boulder. Ph.D., University of Colorado at Boulder. ** Professor, School of Journalism and Mass Communication, University of Colorado at Boulder. M.A., Ph.D., University of Minnesota; J.D., Stanford University. The authors would like to express their appreciation to Professor Matthew Bunker, University of Alabama, and Professor Steven Helle, University of Illinois at Urbana-Champaign, for their helpful comments on an earlier draft of this Article. 1. LON L. FULLER, THE MORALITY OF LAW 185 (1964). 2. The origin of the word “Cyberlaw” is unclear, but the term was inspired by William Gibson’s novel Neuromancer, which coined the word “cyberspace.” WILLIAM GIBSON, NEUROMANCER 51 (1984). Jonathan Rosenoer subsequently published a newsletter called CyberLaw in the early 1990s, and the neologism began to appear in law review articles shortly thereafter. See JONATHAN ROSENOER, CYBERLAW: THE LAW OF THE INTERNET, at vii–viii (1997) (discussing his CyberLaw column); I. Trotter Hardy, Electronic Conferences: The Report of an Experiment, 6 HARV. J.L. & TECH. 213, 232 (1993). 3. Recent scholarship on Cyberlaw’s justifications has focused on structural regulation, arguments from democracy, intellectual property, the Constitution, and cultural studies. See, e.g., Yochai Benkler, Through the Looking Glass: Alice and the Constitutional Foundations of the Public Domain, LAW & CONTEMP. PROBS., Winter/Spring 2003, at 173, 176–77 [hereinafter Benkler, Public Domain] (discussing how constitutional constraints on the creation of private rights in information are needed to protect democracy and autonomy); Anupam Chander, The New, New Property, 81 TEX. L. REV. 715, 717–18 (2003) (arguing that an international intellectual property regime governing uses of domain names conflicts with the integrity of other cultures); Dan Hunter, Cyberspace as Place and the 187 188 JOURNAL OF LAW, TECHNOLOGY & POLICY [Vol. 2005 technologies. Cyberlaw’s detractors believe technology plays a conceptually neutral part in providing for individual well-being and robust democracy.4 The anti-Cyberlaw argument generally admits that existing protection of rights in the production and distribution of information is adequate.5 That a technology is new is never a justification for degrading the status quo of social relations common to uses of old media.6 Conversely, Cyberlaw adherents claim that users of new media need law that considers the novel effects of digital communications. Such law might reflect sensitivity to ways in which new media endanger viewpoint diversity.7 Alternatively, Cyberlaw might be needed to provide efficient access to copyrighted works8 or to regulate uses that endanger privacy.9 The purpose of this Article is not to vindicate the corpus of Cyberlaw, though the Article does advance an argument that such law is needed. Rather, this Article is interested primarily in how Cyberlaw opponents and proponents justify their relative claims. Surprisingly, Tragedy of the Digital Anticommons, 91 CAL. L. REV. 439, 509–19 (2003) (arguing that the “metaphor of place” in describing rights in cyberspace creates an “anticommons” in which all resources are excluded as private property); Beth Simone Noveck, Designing Deliberative Democracy in Cyberspace: The Role of the Cyber-Lawyer, 9 B.U. J. SCI. & TECH. L. 1, 5 (2003) (arguing for the development of new media to accommodate contexts of democratic deliberation); Philip J. Weiser, The Internet, Innovation, and Intellectual Property Policy, 103 COLUM. L. REV. 534, 536 (2003) (suggesting a “competitive platforms model” that would “guide intellectual property policy in the Internet age”). 4. See, e.g., JOSEPH RAZ, ETHICS IN THE PUBLIC DOMAIN: ESSAYS IN THE MORALITY OF LAW AND POLITICS 3 (1994) [hereinafter RAZ, ETHICS]. Raz argues that “[i]n large measure our well-being consists in the (1) whole-hearted and (2) successful pursuit of (3) valuable (4) activities.” Id. Therefore, democracy should improve the conditions for improving well-being. Id. at 102 5. Cyberlaw’s detractors often look to stare decisis as a suitable means to resolve conflicts between traditional law and new media. See, e.g., Jack E. Brown, New Law for the Internet, 28 ARIZ. ST. L.J. 1243, 1258 (1996) (arguing that the rush to legislate new media is prone to mistakes and that “judicial rulings tailored to meet individual, discrete factual situations” produce more rational solutions). 6. New media might present difficulties for the application of established law, but these can be overcome. See Pavlovich v. Superior Court, 109 Cal. Rptr. 2d 909, 912–13 (Cal. Ct. App. 2001) (“The Internet, as a mode of communication and a system of information delivery is new, but the rules governing the protection of property rights, and how that protection may be enforced under the new technology, need not be.”); cf. UMG Recordings, Inc. v. MP3.com, Inc., 92 F. Supp. 2d 349, 350 (S.D.N.Y. 2000) (“[C]yberspatial communication may create difficult legal issues . .”). 7. For example, Sunstein argues that operators of a political Web site should provide links to other Web sites offering different political opinions, reasoning that this would expose people to alternative viewpoints. CASS SUNSTEIN, REPUBLIC.COM 186–90 (2001) [hereinafter SUNSTEIN, REPUBLIC.COM]. 8. In this sense, the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA) are Cyberlaw. See 17 U.S.C. § 1201 (2000). These provisions prohibit, in many cases, the novel use of software to circumvent access barriers which are intended to prevent unauthorized uses. Id. Although § 1201(c)(1) seems to protect fair use, defenses against a § 1201 DMCA claim are weakened because the action need not allege copyright infringement. Therefore, a declaration of a fair use is irrelevant. See, e.g., Universal Studios, Inc. v. Corley, 273 F.3d 429, 459 (2d Cir. 2001) (“Fair use has never been held to be a guarantee of access to copyrighted material in order to copy it by the fair user’s preferred technique or in the format of the original.”). 9. For example, the Communications Assistance for Law Enforcement Act (CALEA) requires providers of electronic services, like Internet service providers, to assist law enforcement in the installation of pen registers and wiretaps. See Pub. L. No. 103-414, 108 Stat. 4279 (1994) (codified as amended at 18 U.S.C. §§ 2510–2522 (2000)). No. 2] COMMUNICATION THEORY AND CYBERLAW 189 many of the justifications (on either side) do not adequately interrogate the value of communication and information exchange in a global society increasingly interconnected by digital communication. Legal scholarship on Cyberlaw has not adequately denied or defended basic principles of communication or the specific value that communication and information exchange has for individual well-being and democracy. This Article is critical of Cyberlaw because its justifications frequently do not acknowledge the novelty of emerging digital communications as technologies that can expand general access by directly assailing elite control over the production and delivery of information.10 This assessment of elite control considers whether access can and should be improved for cultural production (the creation, distribution, and storage of knowledge); the legitimation of institutional authority and the validation of law and other norms; and improvement in the access that individuals have to new media. Together, these forms of access can be referred to as “symbolic reproduction.”11 Too frequently, the justifications used to advocate or deny the importance of Cyberlaw fail to acknowledge the potential for new media to radically countervail the traditional social relations of symbolic reproduction that mostly favor elite control. This is no trivial problem. When the arguments for or against Cyberlaw fail to acknowledge how radically new media differ from old media, the implications of these new technologies for autonomy, legitimation, culture, and, indeed, democracy may be overlooked. Often, the only argument left between lovers and haters of Cyberlaw is whether the law, applied in the usual way to new media, deserves to be called Cyberlaw.12 Elite control of communications via new media is seldom defended or challenged in the many debates over the validity of Cyberlaw; rather, elite control of symbolic reproduction is simply taken for granted. This Article concerns itself primarily with the lack of adequate justifications in the debate over Cyberlaw. Secondarily, this Article is 10. According to Mills, “elite” refers to the “higher circles” in which power—primarily the power to allocate and appropriate productive resources—is withheld and enacted. See C. WRIGHT MILLS, THE MARXISTS 117–18
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