Let’s make a few things perfectly clear: Cyberspace, the Internet, and that superhighway.
By Erik J. Heels
First published 5/1/1995; Student Lawyer magazine, “Online” column; publisher: American Bar Association
Why is the Internet sometimes called cyberspace? Isn’t commercial use of the Internet prohibited? Is it OK to advertise on the Internet? Is there a lot of crime on the Internet? In this month’s column, Erik answers these and other questions about the Internet.
Mixed and Mixed-up Metaphors
Buzzwords like the “information superhighway,” “cyberspace,” and the “national information infrastructure,” which may be nicknames for the Internet or planned government or industry initiatives, are not helpful to understanding what the Internet is.
A computer network is simply two or more computers connected by wires. Computer networks allow interconnected users to share printers, programs, and files. When one network is connected with another, an internet (lowercase i) is formed. The Internet (uppercase I) is the international network of interconnected computer networks. So where did the terms “cyberspace,” “information superhighway,” and “national information infrastructure” come from?
The term “cyberspace” was first used by science fiction writer William Gibson in his book “Neuromancer,” the original cyberpunk novel (New York, Ace Science Fiction Books, 1984). Gibson defined the term as “the mass consensual hallucination in which humans all over the planet meet, converse, and exchange information.”
Last time I checked, I was not hallucinating, so I guess I’m not in cyberspace. I am, however, using the Internet. I dislike the term “cyberspace” because 1) it is an inaccurate description of what the Internet is; 2) it makes the Internet sound mysterious and magic; and 3) is has its roots in science fiction. There is no magic on the Internet — only hardware, software, and people. There are no “tools” on the Internet (see 11/94 Online) — only computer programs operating by agreed-upon rules. And science fiction — I have never seen any of the Star Trek movies; I prefer history and biographies.
The term “information superhighway” (as far as I can tell) was first used in 1988 by Mitch Kapor to describe a national network used for transporting information in multiple forms, including sound, pictures, words, and numbers. Mitch Kapor, who founded Lotus Development Corp. in 1982 (see 10/94 Online), left Lotus in 1986, and later went on to form the Electronic Frontier Foundation.
Kapor properly referred to the “information superhighway” as the medium for exchanging information, not for the information itself. The popular press has used and abused the term to mean both the medium and the message. Besides, the analogy of the Internet to a highway is not a good one. Unlike in the book Zen and the Art of Motorcycle Maintenance, on the Internet, I care about the destination, not the journey. If you fly to Chicago for a business trip, you don’t Zen-out about the stratosphere; your primary concern is the meeting itself. If you call your best friend on the telephone, you don’t jump for joy when you’re waiting for somebody to answer the phone. Similarly, on the Internet, I get little satisfaction from waiting for an HTTP connection to be established because a particular WWW server is overloaded. The satisfaction lies in getting to the information quickly and not worrying about the underlying network that transmitted my information request. “Information superhighway,” no. “Instant information smorgasbord,” maybe. The Internet, definitely.
The “National Information Infrastructure.” Sigh. OK, accepting, for a moment, the “information superhighway” analogy, a network is analogous to a highway, which can be considered an infrastructure. Information is analogous to rest stops, national parks, and scenic lookouts, and libraries on the highway. But the “National Information Infrastructure” is a mixed metaphor. How can the rest stop be the highway? How can the information be the infrastructure? How can the end be the means?
The National Information Infrastructure (NII) is a superset of the planned National Research and Education Network (NREN), which is part of the federal government’s High Performance Computing initiative. Confused? Me too. Basically, Al Gore and others in the Clinton administration are trying to establish (and fund?) the NREN as the successor to the Internet. A national information infrastructure (small n, i, and I) — which this administration has called the National Information Infrastructure (big N, I, and I) should be just like the interstate highway system, so says its supporters. Well, not exactly. I’ve never seen a sign on I-95 that says, “Exit 7, Science Library, 1/4 mile.” Is the Internet now broken? If not, why is the government trying to fix it? If so, why is the government trying to fix it?
Commercial Use of the Internet
In the 1980s, much of the Internet traffic used to pass over the National Science Foundation’s (NSF) backbone network (NSFnet), which was funded by the government. The NSF promulgated the NSFnet Backbone Services Acceptable Use Policy (AUP) that described one “general principle,” eight “specifically acceptable uses,” and two “unacceptable uses” for use on the network. (This AUP and others are available via anonymous FTP: ftp://nic.merit.edu/acceptable.use.policies/.) The “general principle” of the June 1992 version of the NSF’s AUP is as follows: “NSFnet Backbone services are provided to support open research and education in and among US research and instructional institutions, plus research arms of for-profit firms when engaged in open scholarly communication and research. Use for other purposes is not acceptable.” Two “specifically acceptable uses” include “Announcements of new products or services for use in research or instruction, but not advertising of any kind,” and “Use in applying for or administering grants.” Translation: some commercial use is more equal than other commercial use. By the way, from where does the government’s authority to regulate in this area derive? From the Commerce Clause of the Constitution? I.e., because the Internet “affects commerce”? Just curious. The two “unacceptable uses” are “Use for for-profit activities, unless covered by the General Principle or as a specifically acceptable use,” and “Extensive use for private or personal business.” Hmm. How about extended use for private business? (Is that private business, or private affairs?) Or is that expanded use? My high memory area fails me at the moment. The only good thing about the NSFnet’s AUP — like the Army’s first defense contract with Orville and Wilbur Wright — is that it is only one page long. At least they didn’t use the phrase “information superhighway.”
In 1992, two significant events occurred. First, much of the Internet’s traffic shifted from the NSFnet to commercial networks (such as the Commercial Internet Exchange, CIX). Second, and perhaps more significantly, we had a vice presidential candidate who had heard of the Internet — and who was interested in its potential. These two events resulted in a tremendous amount of coverage of the Internet in the popular press and in increased commercial use of the Internet. Since most of the Internet traffic no longer relies on the NSFnet, the NSFnet AUP is now inapplicable to the Internet community at large. Here are a couple new commercial Internet users: http://www.lsas.org (Law School Admission Services — you know, the LSAT people), http://www.cbs.com (yup, CBS TV).
Advertising on the Internet
Advertising is a specific form of commercial use. But when people say “there should be no advertising on the Internet,” what they really mean is “Don’t annoy me.”
Scenario 1. Imagine that a developer of Web-O-Rama software posts the following message to a Usenet newsgroup dedicated to the discussion of Persian cats: “Hey, I’ve found this great new Web page about Persian cats. Here’s the info. And I found this using our Web-O-Rama. Here’s how you can get more info about Web-O-Rama.” Few people would be annoyed because the Web-O-Rama employee provided relevant information about Persian cats to Persian cat lovers while telling how others could use her company’s software to do the same.
Scenario 2. Now imagine that she had posted the following message: “Want to find interesting info about lots of neat stuff? Try Web-O-Rama! I give it two thumbs up! If you must surf the Net, please, try Web-O-Rama!” Many, many, many people would rightly be upset because this message has nothing to do with Persian cats. It’s not illegal to do so, but it’s very annoying.
Business schools teach that a happy customer will tell one friend; an unhappy customer tells nine. The annoyed recipient of an unsolicited advertisement tells many, many, many people. Can you advertise on the Internet? Of course. A signature file is advertising. Giving somebody your e-mail address is advertising. Saying, “I work for Web-O-Rama, the best darn software company north of Seattle!” is advertising. Giving somebody your business phone number is advertising. This is advertising: My favorite, business phone number is 1-800-555-1212 (try it!) and the best deal in rush shipping is two-day priority mail from the USPS (two pounds, two — make that three — bucks, no kidding). Newspaper and magazine articles (like this one) are free advertising, at times. If I were to mention the names of two Arizona lawyers who followed scenario two above (times about 5000 newsgroups), that would be advertising for them. But I shan’t do so. They have already received enough free press. Can you advertise on the Internet? Yes. Should you use discretion? Definitely.
Crime Online
The percentage of activity on the Internet that could be considered illegal is much less than the percentage of conduct in society that could be considered illegal. The unfortunate reality is that because the Internet is the darling of the popular press, they report its extremes. Cars were invented, cars were used in crimes. The telephone was invented, phones were used in crimes. It should come to no surprise to anyone that some use the Internet for criminal activity. But let’s not blow it out of proportion.
A key problem for would-be Internet police is that there is little case law about the Internet, and little statutory law is applicable. A case in point is the indictment of David LaMacchia on April 7, 1994. LaMacchia was indicted for conspiracy to commit wire fraud in violation of a federal statute, despite the fact that he had not profited from his activities. The federal wire fraud statute was enacted in 1952 to combat wire fraud — the use of the telephone to defraud unsuspecting individuals. Mr. LaMacchia was accused of running a computer bulletin board used for uploading (copying to) and downloading (copying from) copyrighted commercial software. Mr. LaMacchia apparently was aware that the copying was going on, although he had not been accused of any illegal copying. He also apparently used the computer for other purposes whose legality has not been questioned. The federal government had a very good case for saying that Mr. LaMacchia did some things that are not very nice, but they did not have a wire fraud case at all. Mr. LaMacchia was recently rightly acquitted. The newsletter of a Boston law firm said that LaMacchia had slipped through a “legal loophole” and that there was no question that he had violated the law. Not exactly. LaMacchia was acquitted because he committed no crime. If the government had wanted to prosecute LaMacchia for “doing things that are not nice,” then it should have enacted a law that “doing things that are not nice” is a crime. It should not have tried to get a conviction for wire fraud and copyright violations simply because changing the law is too difficult. It’s supposed to be difficult. Due process, anyone?
Closing Thoughts
Never forget that the Internet is simply a bunch of interconnect wires, with computers at the ends of the wires, and with people in front of the computers. The regulation of the Internet should not be driven by a fear of the unknown or of the magical, but should be based on the reality of the situation. If existing laws apply, they should be applied. If they don’t, they should not. Common courtesy and common sense should apply regardless.
