Internet Law

by

Chris Marsden

• LAST REVIEWED: 26 June 2012
• LAST MODIFIED: 26 June 2012
• DOI: 10.1093/obo/9780199743292-0075

Introduction

Internet law is a relatively new academic subject, dating to approximately 1991 (see Goldman 2008, cited under Debate), but much of the relevant legislation dates to before 2002 (see Edwards and Waelde 2009, cited under General Overviews and Anthologies). As the law was colonizing the metaphorical “cyberspace”—communications between computer users over the Internet (see Technical Background and Regulation)—most of the authoritative and pioneering legal scholarship with regard to the new medium dates to the 1990s (see Marsden 2000, cited under General Overviews and Anthologies). Where real innovation has occurred in the core field, more recent sources are included, though it should be noted that several off-line subjects have themselves incorporated large literatures from their digital forms, including intellectual property, nonnetworked computer law, telecommunications, privacy, cybercrime, and media content regulation, all of which are substantive enough for their own bibliography (see the Oxford Bibliographies Criminology article Cybercrime). As the Internet was “born global” but first became widely deployed in the United States (see Kahin and Nesson 1997, cited under Development), much of the literature has a bias in that direction, a tendency exacerbated by both the relative openness of the US academy and student-run journals to the impact of new technologies on law and the much greater resources of US law schools than those of their equivalents in Europe and elsewhere. This survey is thus focused on US literature for the most part, with reference drawn where appropriate to other English-language literature and a very limited amount of foreign-language literature. This article is structured as follows. It begins with a discussion of the boundaries of Internet law and the debate on whether Internet law exists as a field and delimits itself by excluding intellectual property, cybercrime, and media law. It then considers in turn a general overview; essential textbooks, anthologies, and journals; the technical background; the development of Internet law; and the effect of the Internet on lawyers. It continues by considering the effect of Internet intermediaries, an essential topic to understand before considering specific topics. The specific topics in bounds are constitutional and human rights, jurisprudence and legal philosophy, regulation law and economics, competition law, telecommunications law, and the particular example of network neutrality. The article then considers issues essential to understanding the Internet economy: intellectual property where it affects Internet law directly, data protection and privacy, and electronic commerce law, including online gambling, online dispute resolution, and virtual worlds. There is no section on international and comparative law, as these areas are interwoven with the substantive topics. It would be foolhardy to claim to represent all the areas of Internet law, a contested field in itself, and the bibliography is selective of the topic, not comprehensive.

Debate

There have been extensive discussions as to the provenance of a field termed “Internet” or “cyber” law since the mid-1990s (Lessig 1999). Many argue that the effects of digital information retrieval on the law apply across all areas with some relevance, especially for intellectual property, and that Internet law should be considered part of the law of contracts, competition, the Constitution, and so on (Easterbrook 1996, Sommer 2000), with narrow exceptions for such issues as legal informatics and telecommunications law, which are being transformed by technology and therefore cannot remain distinct (Marsden 2010, pp. 216–219, cited under Net Neutrality; see also Guadamuz González 2004 on net neutrality). Others argue that the lack of general academic expertise and the emergence of the field mean that Internet law is a necessarily short-term distinct study area that may eventually be reintegrated into its constituent parts (Larouche 2008, Kerr 2003) as an inevitable eventual assimilation. Goldman 2008 argues that Internet law is best taught as a survey course, and while not disowning others’ opinions about the relative merits of Internet law as a discrete or overarching field, this article is structured with that aim in mind.

• Easterbrook, Frank H. “Cyberspace and the Law of the Horse.” University of Chicago Legal Forum (1996): 207–216.

  Easterbrook argues that the Internet is of interest to legal scholars but its impact is limited to a means of conveying legal doctrines, as with the horse or the railway. Therefore he argues that legal scholarship needs to adjust to the Internet but that there is no field of “Internet law.”

• Goldman, Eric. “Teaching Cyberlaw.” Saint Louis University Law Journal 52 (2008): 749–764.

  Goldman argues for an Internet law that can be taught using new pedagogical elements employed in a survey-type course and argues against Easterbrook 1996 that the volume of Internet-specific legislation and case law means that common law cannot provide a sufficient grounding for students to understand the transformations wrought by Internet law.

• Guadamuz González Andrés. “Attack of the Killer Acronyms: The Future of Information Technology Law.” International Review of Law, Computers, and Technology 18.3 (2004): 411–424.

  DOI: 10.1080/1360086042000299613

  Survey essay on the origins of the Internet law debate. Argues that several new fields are emerging from the study of computers and law, including legal informatics and artificial intelligence and law, and that Internet law can provide new insights into established fields that provide contemporary context for the theoretical study of several subjects as well as the profession’s development as a whole.

• Kerr, Orin S. “The Problem of Perspective in Internet Law.” Georgetown Law Journal 91 (2003): 357–405.

  Kerr explains two divergent views of Internet law. The first is an internalized expert view of the law, the second a technophobic view. Kerr concludes that two perspectives will converge and evolve, as more people understand the underlying technologies involved and the useful middle ground.

• Larouche, Pierre. On the Future of Information Law as a Specific Field of Law. Tilburg Law and Economics Center Discussion Paper No. 2008-020, 2008.

  Larouche argues that the object of information law has mutated, scope for public intervention has been rolled back, implementation of any form of public intervention has been made more difficult, and information law has seen its main topics expropriated by more traditional topics. As a result, he argues that a “future information law” will be radically amended.

• Lessig, Lawrence. “The Law of the Horse: What Cyberlaw Might Teach.” Harvard Law Review 113 (1999): 501–549.

  DOI: 10.2307/1342331

  Lessig replies to Easterbrook 1996, explaining that the transformative effects of the Internet on law, in such areas as free expression, privacy, and intellectual property, are such that it offers lawyers a radically new route to thinking about private regulation and globalization and the limits of state action as well as a powerful metaphor for explaining these wider changes to law students.

• Sommer, Joseph H. “Against Cyberlaw.” Berkeley Technology Law Journal 15.3 (2000): 1145–1232.

  Sommer extends the argument in Easterbrook 1996 in dismissing the claims in Lessig 1999 regarding the exceptionalism of cyberlaw. Argues that bodies of law are not defined by their characteristic technologies and the Internet’s possible transformative social impact does not affect the study of its law. Argues that “a lust to define the law of the future” (p. 1146) is dangerous and can create bad taxonomy and bad legal analysis.