Cyberspace Jurisprudence: Who Shall Punish Evil?

One of the conundrums of life in cyberspace is balancing the rights and obligations of netizens as they struggle to define the laws of the Internet. Nowhere is this more vexing than policing that ever-present nuisance, spam.

An unintended consequence of protocols that relay unauthenticated e-mail, spam is to cyberspace what pollution is to the real world.

Economists call this the problem of externalities, where benefits come by imposing costs on others. Two schools of thought have emerged to cope with the problem of externalities. The first is exemplified by the work of the Cyberspace Law Institute (www.cli.org), which argues in its seminal paper, "The New Civic Virtue of the Internet," that the classic approach of coercive law enforcement by territorial sovereigns does not and cannot work on the global Internet.

Instead, a distributed, competitive system is envisioned, wherein individuals voluntarily associate themselves with one or more Internet communities. These communities duke it out in the marketplace, using only the power of banishment to exclude those who break their particular codes of conduct. If you don't like the rules of one community, you can "vote with your modem" and move to another. If the community doesn't like you, you're out.

The contrasting philosophy is exemplified in a recent article titled "Spam Wars" by Harvard Law School professor Lawrence Lessig, who argues for the creation of an overarching policy-making institution to develop and enforce collective rules and regulations. You might remember Professor Lessig, whose 15 minutes of fame came when he was dumped as a proposed "special master" in the Microsoft antitrust suit.

Lessig opines that, while spam is a nuisance, "the real problem is that vigilantes and network service providers are deciding fundamental policy questions about how the Net will work, each group from its own perspective."

Lessig is horrified by this rejection of central authority in favor of reliance on the invisible hand. He takes, as an example, the anti-spam consortia such as the Open Relay Blocking System and the MAPS Realtime Blackhole List, whose subscribing system operators voluntarily agree to block incoming e-mail from ISPs that do not, in the consortium's judgment, practice adequate anti-spam measures.

What's particularly fascinating about this debate is that we are coming full circle since the civil rights legislation of the 1960s granted broad new powers to the government to regulate commerce between citizens. While correcting a grievous moral wrong, racial discrimination, the remedy sowed the seeds for the destruction of the freedom of association and the right of private contract.

These rights have been born again on the Internet, and what drives Lessig and his kind crazy is that there's nothing they can do about it.

Characteristic of the environment in which these professional policy-makers thrive, any solution in which governance does not come down from the top is inconceivable.

As so aptly expressed in an unpublished letter to the editor by Internet entrepreneur Bruce Fancher, copied to me in a fit of pique, "Lessig is quite right when he says that policy is being made, but he is mistaken when he says that those making the policy are unaccountable. What he means is that they are not accountable to him and other elites in government and academia. Those making policy are accountable to their employers, customers and others who are, unlike Lessig, directly involved. They are accountable in the same way a shop owner is accountable to his clientele."

Yep. And the handmaidens of the Leviathan State had better get used to it. After all, who would you rather have write the laws of cyberspace: a club-wielding Harvard professor or you and your peers, voluntarily participating in a journey of discovery?

Bill Frezza is a general partner at Adams Capital Management. He can be reached at frezza@alum.mit.edu or www.acm.com.