I think, frankly, that the only way to answer the arguments made below is with financial cryptography. Like I've said before, if it's encrypted, and only I (not Bill Gates and I :-)) have the key then it's my property. The same can be said about the abstractions of financial assets represented by bearer "certificates" created with financial cryptography protocols like blind signatures. Otherwise, yes, I do believe that "Cyber"-law is just meat-law by other means. One need only think about the Adult Action case, where an extradited defendant is now rotting in a Kentucky jail for the contents of his California server, or the American who foolishly went home to stand trial for his Antiguan net-gambling business to understand that. Until we have some kind of technological equivalent of the Treaty of Westphalia, sundering once and for all the power of nation-states on the internet in the same way that that treaty broke the power of religion in international relations, we will eventually end up in some kind of Heller/Randian legal singularity where everything, everywhere, will be illegal, all the time. :-). The solution to the legal paradox is not legal, it's physical: Write software, not legislation. Write code instead of Code. Cheers, RAH http://online.wsj.com/article_print/0,,SB1025481262421276800,00.html The Wall Street Journal July 1, 2002 BOOM TOWN By LEE GOMES The Hot New Field of Cyberlaw Is Just Hokum, Skeptics Argue Is there really a cyberspace full of "cybercitizens" who need only be accountable to their own "cyberlaws"? A loose-knit group of law professors is bucking one of the big fads in the legal field by calling that whole idea "cybersilly." Law involving the online world is hot right now. Law schools trying to stay current have courses in it, which tend to be popular with a generation of law students reared on Wired magazine and Napster. Experts in so-called cyberlaw typically have technology-friendly legal views, and are thus frequent guests at the tech world's many conferences. They're also quoted all the time in media accounts of online legal disputes. Cyberskeptic or buff? Write to Lee Gomes at lee.gomes@wsj.com1 There is, though, a much less well-known but equally determined group of legal experts -- let's call them the "cyberskeptics" -- who are deeply troubled by just about everything about this trend. The skeptics start by questioning the very existence of cyberspace, which they say is no more real than a "phone space" involving all the people on the telephone at a given time. They go on to argue that something happening online shouldn't be treated any differently by the law than if it occurred on Main Street. You can usually find the skeptics in law journals rather than at tech conferences. Orin S. Kerr, of George Washington University Law School, for example, is wary of courts looking at Internet legal issues from the perspective of users, who may indeed think of themselves as cavorting about in cyberspace. A more productive approach, he says, might be to look at what is happening in the real world, where one usually simply finds a group of computers connected to each other and passing along data. Timothy Wu, a professor at the University of Virginia School of Law, writes that there is no single Internet, but instead, many different Internet applications that all need to be discussed differently. Jack Goldsmith, of the University of Chicago law school, defends a decision two years ago by a French judge who said that Yahoo couldn't sell Nazi memorabilia in France, which bans the material. Netizens pounced on the ruling as an affront to their brave new digital world. But Prof. Goldsmith says that Yahoo, since it has a subsidiary in France, should no more be immune to French laws than General Motors is. More importantly, he says, the French judge went through with the ruling only after determining that it was feasible, through various screening technologies, for Yahoo to prevent its French visitors from seeing the ads but still display them to others. While the skeptics emphasize different points, they all have as a core principle a rejection of the notion of "Internet exceptionalism," or the idea that the Internet is a new, unique thing that requires its own special laws. "The steam engine ... probably transformed American law, but the 'law of the steam engine' never existed," writes Joseph H. Sommer, counsel at the Federal Reserve Bank of New York, in a law review article called "Against Cyberlaw." He also fretted that the cyberbuffs are afflicted with "insufficient perspective, disdain for history, unnecessary futurology and technophilia." The skeptics have no particular beef with computer and Internet technology. Most, in fact, are avid users. They just think that it shouldn't be pandered to. And they certainly deride the ideas behind the "Declaration of Independence of Cyberspace," which is posted on many Web sites and poses a "hands off" challenge to government. The dispute between the buffs and the skeptics doesn't have the usual left-right overlay to it. The skeptics tend to be Republican but come from both sides of the spectrum. A better question, perhaps, involves the politics of the cyberspacians -- not their defenders in law schools as much as the cyberactivists themselves. Many observers assume them to be politically progressive, beyond their obvious libertarianism. But are they really? Prof. Wu thinks not, calling them deeply technocratic and elitist despite their populist rhetoric. And most of the activists continue to see the Internet as a utopian ideal -- despite the fact that many progressives are beginning to worry that the Web is really just a very efficient way for companies to move white-collar U.S. jobs overseas. Prof. Goldsmith says that most law professors are becoming increasingly wary of the legal claims being made for cyberspace. But what about his students? Well, he concedes, they're another matter. Many of them, with the passion of youth, are still enthralled with the whole idea of a separate universe, one they can call their own. -- ----------------- R. A. Hettinga <mailto: rah@ibuc.com> The Internet Bearer Underwriting Corporation <http://www.ibuc.com/> 44 Farquhar Street, Boston, MA 02131 USA "... however it may deserve respect for its usefulness and antiquity, [predicting the end of the world] has not been found agreeable to experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'