Cyberspace Jurisprudence: Who Shall Punish Evil?

One of the best advancements of the twentieth century was the development of the web.

This worldwide communications system has dramatically changed the way that the world shares info and conducts commerce. It's an outstanding tool which has really made the world a far littler place. With one or two clicks of a mouse, an individual in Idaho can right away be connected with someone else in Bangladesh, sharing text, photographs, video, and audio just about in realtime. The power to do research, share info, diagnose illness, and join in commerce has been forever modified by the phenomenon that's the internet. But with any uncontrolled medium, there's a darker side. And those that are unhappily most impacted by this are frequently youngsters. Immediate access to nearly anybody, anywhere has made it simple for people that live on kids to have a back door to go into the houses of trusting kids and live upon those least capable of caring for themselves. June has been appointed "Internet Safety Month" by the U.S. Senate. The goal is to raise the profile among folks, tutors, law enforcement, elected officers, and communities at large about the risks that skulk on the web and the way to decisively combat these threats.

Particularly, communities need to get together to fight the growing threat of Web predation against youngsters. More than 35,000,000 youngsters aged between five and seventeen now have net access, and this access is frequently unmanaged. At any particular time, there are far more than 3,000,000 folks in incognito chat-rooms and their identities are sometimes unknown ( or masked ). One in five middle college, junior high and school scholars have met face to face with somebody they first met on the Web, and this number is growing at a shocking rate. According to the nation's Center for Missing and Exploited Youngsters , one in seven youth ( aged between ten and seventeen ) received a sexual solicitation or were approached in a sexual demeanour while online, yet few of these situations are reported to elders, guardians or law enforcement staff. At the moment child-molesters maintain and operate more than ten thousand known internet sites globally with numerous hosted outside of the US in nations who turn a blinkered eye to the manipulation of kids. Child-molesters maintain a complex network to share secrets, photos, video, and brag of their successes. Yet the resources dedicated to stemming the growing tide of Web predation is small in comparison to the threat.

Filtering software is an essential tool to defending kids, but it isn't the sole tool.

Industry statistics prove virtually one in three youngsters who are online have the technical talents to by-pass most Net filtering software, and just about two in three youngsters admit to using the Net in an hazardous or unseemly demeanour. Teaching youngsters about the hazards that prowl online, and monitoring their activities is an essential part to minimizing the chance of unbecoming contact or damaging content being brought to your youngster while on the web.

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.