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JILT 1998 (3) - Diane Rowland


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Cyberspace -
A Contemporary Utopia?
[1]

Dr Diane Rowland
Department of Law
University of Wales, Aberystwyth
Diane.Rowland@aber.ac.uk

Abstract

Just as the law responded both by creating new rules and modifying existing rules to cope with the advent of the telephone and telecommunications technology, so a similar process will eventually be undertaken in relation to global computer networks. Without doubt this can be perceived as a rather intractable problem because of jurisdictional issues, difficulties of enforcement etc., but the mechanisms of regulation of the Internet and the rationale behind that regulation have proved, not only elusive of resolution, but also controversial. An earlier paper (Rowland D; 1998) considered the protection of rights and the role of customary behaviour in Cyberspace, this article will begin to explore the extent to which the metaphor of community can be of assistance in comprehending the difficulties surrounding the regulation of Cyberspace.

Keywords: Cyberspace, Globalisation, Internet regulation


This is a Refereed Article published on 30 October 1998.

Citation: Rowland D, 'Cyberspace - A Contemporary Utopia?', 1998 (3) The Journal of Information, Law and Technology (JILT). <http://elj.warwick.ac.uk/jilt/98-3/rowland.html>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/1998_3/rowland/>



1. Introduction

Over the past decade the Internet has metamorphosed from a research tool into a forum for popular culture. The global computer network which encompasses the Internet and the World Wide Web together with a whole host of other fora for electronic communication such as bulletin boards, chat rooms etc. now has millions of regular users and that number is rising as the technology becomes ever more accessible. The growth of this network of linked computers and computer networks of which the Internet is merely a part has fostered the existence of a virtual world. As the number of users has increased, so the purposes for which they turn to this system have diversified. It is now common to use the Internet or the Web as a library or information source, for one to one communication and more open discussion, as a marketplace for buying and selling goods and services, and as a means of facilitating other experiences via participation in new 'worlds' which have their existence only in the medium of Cyberspace.

History contains many examples of new technological developments causing problems for the application and enforcement of the law and other regulatory mechanisms and this has been particularly apparent in relation to computer technology. Saxby (1995) has commented that 'The law is at a stage when it is trying to bed down a technology that has re-shaped society to its roots.' Just how radical is this re-shaping? There are obvious parallels with other communication technologies here such as wireless telegraphy, telephone etc. which, in their day may have been regarded both as equally revolutionary and with equal suspicion by the populace of the day but which very rapidly became accepted as a normal part of life. Even though all households may not actually have a telephone there are few whose occupants would not expect to use one. Thus although the Internet and associated technology is currently a habit or habitat of choice and use of it can be avoided if desired, it seems unlikely that in the twenty-first century on-line communication and discussions will not become the norm.

In 1993, the concept of the National Information Infrastructure (NII) was launched in the US backed by presidential endorsement and promising to 'unleash an information revolution that will change forever the way people live, work and interact with each other.' Such relentlessly optimistic hype ignores the regulatory difficulties inherent in controlling and adjudicating relationships on-line - an inevitable consequence of lives being increasingly lived in a virtual rather than a physical world and the continuing exploration of the vast amorphous ether termed 'Cyberspace'. In reality there were and are a number of barriers, both technical and legal to the realisation of such a 'revolution'. These include a whole raft of legal provisions in many jurisdictions which impact upon the use of the new medium, even though the extent to which they are appropriate or enforceable is uncertain. At the technical level, difficulties remain with defining standards for the interpretability of the various technologies and developing the necessary structures which facilitate the growth of the global network. Nevertheless this network of linked computers has made the concept of virtual communities, virtual society, a virtual world commonplace.

2. The Development of Society and Community in Cyberspace

In this analysis it is necessary to distinguish how society and community can develop in Cyberspace and whether such terms have validity and utility in describing the observed groupings before going on to an examination of the influence this might have on the way Cyberspace is, can be or should be governed.

At least one of the answers to this question lies in the nature of some of the uses of Cyberspace. Barrett (1996) details a number of the reasons for using the Internet leading on to a discussion of the growth of "digital communities" and the concept of government and nationhood in relation to this use. Some such uses are beginning to be divorced from similar activities in the physical world and some have no obvious counterpart. On the other hand, the regulation of the increasing commercial use is not so contentious and so, just as legal rules were modified to take account of telephones, telex, electronic bills of lading etc., so the law will be stretched or modified to accommodate the electronic marketplace[2]. However, buyers and sellers in this virtual forum have usually a common interest in ensuring the maintenance of business efficiency, efficacy and good faith. The situation in relation to other uses and purposes may be radically different.

Even those who merely use the Net as an information source will be familiar with electronic bulletin boards, news groups and chat rooms. Whilst bulletin boards and news groups require users to wait for reactions to the messages they have sent, users of chat rooms are able to participate in a real time discussion dependant only on the number of users logged on at a particular instant and willing to contribute to the debate. Given that most chat rooms, in common with news groups and bulletin boards, have a particular subject focus (however bizarre!!), their clientele are unlikely to be disappointed by finding the 'room' empty. Whereas in real life we may make our friends from those who have similar interests, these virtual spaces provide a means of 'meeting' many others of like mind. A chat room allows relationships to be developed unhampered by the constraints of geographical location and barriers of social status. In consequence 'an increasing number of people are finding their lives touched by collectivities which have nothing to do with physical proximity.' (Wilbur S; 1997 p.5)

An even more participative environment is provided by the so-called MUDs (multi-user dungeons or domains) and MUSHs (multi-user shared hallucination)[3]. These are essentially games which create what are commonly referred to as text-based realities, although an onlooker might suggest that 'unrealities' would be a more appropriate term. They were originally derived from the fantasy game Dungeons and Dragons, hence the term multi-user dungeon. There are now games based on a variety of themes some, probably as a result of their genesis, tend to be combative, but others have a completely different ethos. Whatever the theme, participants assume an identity which may or may not have any relationship to their own and enact various role plays, although this is something of an over-simplification as there are likely to be many levels of the game and a hierarchy of players[4]. Curtis (1996) suggests that 'the emergence of MUDs has created a new kind of social sphere, both like and radically unlike the environments that have existed before.' and goes on to suggest that it 'behoves us to begin to try and understand these new societies ...'

From the previous descriptions there appear to be clear differences between the environment provided by a chat room (or even users of a bulletin board or news group) and that experienced in the text-based reality of a MUD. In the former, users are exchanging information, perhaps arguing, perhaps developing their friendships in a manner which looks, at first sight, very similar to such processes in a geographical community or special interest group such as a sports or social club. However, a major difference is that it is much more difficult to verify identity or sincerity on-line and, paradoxically, many users appear to be more trusting of those met on-line than those they encounter in person. There are a number of well-documented examples of the effect that breach of trust can have on the unsuspecting victim[5]. Those who have never experienced a MUD (including the author of this article) may not find it easy to understand how users could confuse participation in a game, albeit a very sophisticated game, with real physical experiences. Nonetheless, there is growing evidence that this can happen among habitual users[6], so that in some senses the user can be said to exist in or inhabit the virtual environment created by the MUD. Whereas players of a more conventional computer game, as supplied on CD ROM for instance, rarely forget that they are playing a game, it appears much easier to confuse interactive games on the Internet with reality, perhaps because they use precisely the same commands, techniques etc. as would be used for standard e-mail communication with others.

3. The Concept of the Cybercommunity

Whether such interactions truly lead to the creation of communities in the accepted sense is open to debate. The views of Rheingold (1994), concerning community formation in Cyberspace and the way in which social groups may be moulded into virtual communities, have been cited with approval and espoused by many writers and commentators and are clearly becoming influential. The underlying belief is that the ease of communication facilitates community formation in the sense that it is a simple matter for those of like mind and interest to form groups within which the members feel as at ease as they might in a physical community. An alternative point of view is that this is to confuse the true nature of community with the removal of many of the fetters to communication. Enabling communication may result in a freer exchange of ideas and assist in the formation of a group, the members of which are in frequent communication with each other, but this may not necessarily engender other traditional community values, such as loyalty and group identity. Members of a community in the physical world are likely to be aware of a distinct community identity in addition to and distinct from their individual personal identities. In Cyberspace, on the other hand, individuals may move in and out of many groupings with a range of norms and values without necessarily taking on a community identity unique to that forum (see e.g. Graham G; 1994). Despite these reservations, the concept of a virtual world based on social interactions, such as those which occur in a chat room, is not alien to most inhabitants of the physical world, even though there can be no absolute verification of the real identity or gender of the contributors in this medium, this does not appear to deter users. The term 'chat room', itself, contains a cosy spatial analogy and promotes the idea of place, popular culture has begun to advance the idea of Cyberspace as a place to go and have experiences. This property is even further accentuated in the text-based realities of MUDs, where it is perfectly feasible for several hundred participants to be involved at any one time.

Fascinating as it may be to treat these groupings as communities, the familiar nature of such terms should not tempt us to invest the formation of a 'cybercommunity' with too much prior meaning. The precise definition of 'community' generates discussion among sociologists, anthropologists and legal theorists, but, nevertheless, the nuances of meaning elicited by this debate should not blind us to the fact that the concept of community is still one which the majority of people feel to be both familiar and non-threatening. Although it may be difficult to correlate precisely the properties of cybercommunities with those of conventionally accepted communities, nevertheless it appears possible to define a range of 'social spaces' which can be accessed and 'inhabited' whilst on-line. The nature of these emergent virtual communities may serve to affect our overall understanding and experience of community and the range of norms and values which they exhibit would be expected to influence the basis, scope and nature of legal intervention and legal regulation.

4. Cybercommunities and the governance of Cyberspace

A stable society is possible where there is some assumed general agreement between its members or where a set of values can be identified which define the limits of both the social order and of individual contributions to social groups within that society. Most conventional territorial societies exhibit a hierarchical structure between the governed and the government and power is exercised within certain constraints which are usually imposed by the government and related to its ideology. In general, government in these societies is usually stronger than the resistance offered by the governed, otherwise the society becomes unstable and revolution is possible. The course taken by that society will depend on the interests, goals and personalities of those in power. How can this be translated to a society such as that encountered in Cyberspace where there is not, possibly cannot be, a central system of government? Is there any point of contact?

lilacbar2

"...the application of existing legal rules has proved, arguably, to be more reliable, ...than attempts by national legislatures to enact bespoke legislation."

lilacbar2
The facilitation of communication at an individual level made possible by the global computer network has the capability to both compromise and confront the control mechanisms of governments and corporations (see e.g. Chatfield D; 1991). This has inevitably meant that there have been attempts to use existing legal provisions and legislative powers to control activities and behaviour on the Internet. These have had mixed success to date. Interestingly for the present purposes, the application of existing legal rules has proved, arguably, to be more reliable, at least from the point of view of those wishing to enforce certain standards, than attempts by national legislatures to enact bespoke legislation. In Germany in December 1995, a Bavarian Court succeeded, at least for a while, in enforcing nationally based standards. This was achieved by the service of an injunction on the commercial service provider, Compuserve, requiring it to suspend access to certain newsgroups. The response of Compuserve was to deny access to these newsgroups to all their subscribers worldwide. Although Compuserve subsequently restored the links to those subscribers who were not resident in Germany and complied with the terms of the injunction by the provision of blocking software to their German subscribers, this case demonstrates that, up to a point, domestic law can be applied to the on-lie world and, indeed, its effects may even be felt outside the relevant jurisdiction[7].

On the other hand the Communications Decency Act of 1995 in the US, a statute designed to prevent access by minors to indecent and obscene material on the Internet and World Wide Web was immediately subject to a successful challenge in the courts in Reno v ACLU (1997) 138 L Ed 2d 874. In this case, the Supreme Court upheld the earlier judgment of the Pennsylvania District Court (<http://www.epic.org/CDA/>) that the Communications Decency Act was unconstitutional and in which District Judge Dalzell provided a colourful account of communication in Cyberspace, describing it as 'the most participatory marketplace of mass speech that ... the world has yet seen' which, as such, deserved the 'highest protection from governmental intrusion'. The ease with which the global computer network allows people to be organised and communicate across jurisdictional frontiers is capable of creating a challenge to authority from wherever it emanates as it allows, even encourages users to confer and develop their ideas independently of any formal structure which might tend to restrict such activity. In a conventional society the institutions of Government should allow for both the resolution of conflict and the control of power even if this is camouflaged behind an ideology of consensus. How can this be translated to a society which has no central system of Government. Should the emergent cybercommunities be controlled from without or from within?

To begin to understand and answer these questions we need to consider carefully the nature of a cybercommunity and the way in which it functions. Is it collectivist or individualist? Is there any concept of the 'common good'? The ethos which characterises the Internet and World Wide Web appears to be based on the development of a culture of freedom and individual liberty tending to give rise to negative duties of non-interference and positive duties to sustain that culture. This has been demonstrated most clearly in the United States in the high profile challenge to the Communications Decency Act, referred to above. However, the suggestion that such communities may be highly individualist appears to be at odds with the perceptions of some users, as evidenced by the example below. The obstacles encountered by those who wish to participate in the many activities available in Cyberspace are significantly different to those encountered in parallel situations in the physical world but are, essentially, the same for all classes of participant[8 ]. This has the potential to lead to greater equality between participants whatever their real or perceived status in the physical world. There is evidence that this attribute of electronic communication is not without importance to habitual users but may be regarded in a rather uncritical way. Thus Moore (1995), in recounting the attractions of a MUSH to one user:-

'You can do anything you want. It is not like society. There is no bias to anything. You can have any name you want. There are no arguments, no fighting. There is, like, no race. You can be yourself.'

comments '(w)ho amongst us hasn't yearned for such a Utopia.' Both of these comments accept, implicitly the creation of a virtual community or communities among those who spend time on-line or, to use a common metaphor, inhabit Cyberspace. Do communities in Cyberspace really exhibit Utopian characteristics? Even if they do, does this in any way assist our understanding of the regulatory dilemmas of the virtual world?

Visions of Utopia are to be found in every age presented variously as myth, a vision of a golden age, or an alternative world or remote, inaccessible paradise. Utopian societies may have an individualist ethos based on wish fulfilment and gratification of desires, a well-known example being Cockaigne, but there are others based on a conscious striving for a perfect society. Literature also contains many examples of Utopian satires, 1984 and Brave New World being famous 20th century examples, and, indeed, it is possible to regard Neuromancer, the novel by William Gibson which first introduced the word 'Cyberspace', in the same way. There are of course, also many opponents of technological utopianism[9], (techno-dystopians), but, whichever view is espoused, it is a mistake to believe that even if communities in Cyberspace exhibit utopian properties they are immune from regulation. Plato, in 'The Republic', discussed the necessity of regulating the affairs of the community and later writers including More have stressed the importance of the legal structures of the society which they have described.

Dahrendorf (1968) suggested that a Utopian society had the characteristic of being both unchanging, uniform and isolated from all other communities in both time and space. The first of these implies a lack of history and the second the existence of a universal consensus of prevailing values and institutional arrangements. Although universal consensus can be taken to indicate the absence of structurally generated conflict, it does not point to the absence of structure, even a hierarchical structure, allowing regulation. Society and community in Cyberspace can be viewed as forming and reforming amoeba like and therefore, at one level, can be likened to the Utopian State which comes from nowhere and goes nowhere[10].

5. The Emergence of Legal Rules in Cybercommunities

For any community, legal rules may emerge as a result of a 'top-down' or 'bottom-up' process. In the former, legal rules are imposed by a more or less centralised authority whereas, in the latter, legal rules develop organically out of the customary behaviour which evolves in the community in question. If the structure of relationships in the virtual world can, indeed, be characterised by community formation, whether of a Utopian nature or otherwise, a further examination must then ensue to ascertain the extent to which legal rules governing behaviour may already be emerging from amidst the chaos of Cyberspace. In some respects the cybercommunity, at this juncture, could be regarded as a 'pre-legal' world and the change to a legal world will inevitably involve the creation of rules dealing with change, adjudication and recognition of rights. Most communities will regulate themselves, in practice, by a combination of formal or 'book law' ('top-down' rule formation) and also by acknowledgement of the customary rules which have evolved to supplement this source of law and to cater for what 'actually happens' ('bottom-up' regulation). Examples are the rites of passage, initiation or induction for newcomers to that community which either enable them to integrate more easily, or, conversely, create a barrier to entry to the society which must be successfully negotiated. Neither is such 'living law' confined to the more obviously 'social' sphere. Macaulay's (1963) classic study of the rules which actually govern business relationships shows wide acceptance for a set of rules governing such relationships which are not rooted in the specifically legal rules which have been created for that purpose. This concept, even if not articulated in quite this form, is very widespread. Many contemporary institutions have developed their own rules either through custom or otherwise and self-regulate. It is then possible for this process to be recognised by the State's legal order.

To what extent can such processes be observed in operation in cybercommunities? It is true that certain customs can be identified in some elements of Cybersociety (Rowland D; 1998) and appear to be in the process of being elevated to the status of customary rules. But this side steps the most important issue, namely the point at which 'the thing done becomes the thing which must be done' (Allen C K; 1964 p. 101). Many rules remain purely customary, having no enforceable sanction attached to their non-adherence, indeed it is doubtful whether a universally enforceable sanction can be applied in Cyberspace[11]. It may, however, be erroneous to measure the success of custom as a regulatory mechanism purely by the availability of express sanctions. Successful customs may be obeyed, not so much because of the threat of sanctions, but for fear of standing out from the crowd. Such rules may be adhered to not out of personal conviction, but, rather, as an indication that such conduct is conventionally accepted and so participants are happy to accept it as a standard of assessment. People may also accept rules not necessarily because of any issue of morality but possible out of fear, self-interest, coercion or habit. What is not apparent in cybercommunities is such an assurance of acceptable behaviour, at least as judged by the prevailing standards and mores of the physical world. In comparison, the range of norms and values in cybercommunities seems to cover a much wider and more diverse range. What may be absent in the virtual world is the necessary degree of uniformity and unanimity defining a custom which has the capacity to metamorphose into a legal rule and become both binding and obligatory.

lilacbar2

"This emergent global law is both expected and observed to have attributes that set it apart from domestic law based on a particular territorial jurisdiction."

lilacbar2
Cotterell (1992 p18), in discussing the work of the American sociologist, Sumner, first published in 1906, points out his emphasis of the insensitivity and ineffectiveness of legal innovation through legislation if the social roots of law are ignored. It may be that what Sumner identified in more conventional communities some hundred years ago, is now apt to describe the situation pertaining to the emergent cybercommunities. An interesting parallel may also be drawn with the theories of the Austrian philosopher Ehrlich. Ehrlich was a particular proponent of the 'living law' which arises out of accepted custom. His hypothesis was based on the notion that all human life is lived in associations, formal or informal groupings of all kinds. Such groupings can certainly be identified in Cyberspace. Further his theories were likely to have been influenced by his own social background, introducing an empirical element based on experience and observation. He came from the province of Bukovina, an outlying region of the Austrian Empire, which contained a mix of distinct cultural groupings each with its own form of social organisation. In this environment, centralised law-making from Vienna was seen as an intrusion into a set of normative rules which functioned well without it. As pointed out by Nelken (1984), Ehrlich's theories can certainly be used to justify non-intervention in the case of communities which have developed customary rules. Neither are such customary rules or self-regulatory mechanisms necessarily more lax than formal legislation, it is always possible for the actual rules of conduct to be more stringent than those which might be imposed by law[12]. In a different context, Teubner (1997) has described newly emerging global, as distinct from international, law in the areas of transnational regulation of, for instance, economic transactions, labour, professional standards, human rights, even sport where the prevailing governing rules are not the creation of a particular nation state. This emergent global law is both expected and observed to have attributes that set it apart from domestic law based on a particular territorial jurisdiction. Although this analysis refers to rules which are firmly rooted in the physical rather than the virtual world, there are clear parallels. These parallels are most evident when some of the specific characteristics of the emergent system are examined. Teubner points out that such a system of globalised law does not depend on recognised physical boundaries, as such, and is the result not of the demarcation of a core territory but of barriers created by 'invisible colleges', 'invisible markets', 'invisible professional communities' and 'invisible social networks'. He suggests, further, that Ehrlich's theories are the appropriate ones, both empirically and normatively, for an understanding of this phenomenon, on the basis that the system described is a decentralised one and that, in such a case, policy should be shaped by the local community. Further analysis is clearly needed to ascertain the extent to which all such theories might assist in understanding the most appropriate regulatory mechanisms for the emergent communities in Cyberspace.

6. Conclusion

In conclusion, it could be said that this article has raised far more questions than it has been able to provide answers and that this is a topic which is crying out for further sustained and detailed study not only by lawyers but also by sociologists and scholars of other relevant disciplines. It is arguable, at least, that commentators find such a problem with the issues of governance of the Internet because, by its very nature, it is largely a phenomenon of the developed world. This world is one in which the twentieth century in most jurisdictions has seen extensive use of legislation (book law) for the furtherance of many if not all of the objectives of government and society, to encourage enterprise for instance, or to modify social attitudes and relations, in other words, attempting to use the law as an agent of social change. The diffuse and insubstantial quality of many cybercommunities challenges this model of law making and social control, but it also challenges many of our preconceptions of the attributes of society and community. Even if the impact of new communications technology on both social relationships and law-making processes is still in its infancy, intuitively, at least, we can appreciate that the effect may be to facilitate the creation of a global society transcending national boundaries (Bianchi A; 1997). There are myriad political processes at work in all societies but the decentralised nature of the Internet makes it particularly difficult to understand either the manner in which power can be exercised, by whom and within what limits We should, perhaps, beware of imposing on the organisation and use of the Internet a social construct which is entirely inappropriate both in idea and substance. Thus far, legal rules external to Cyberspace have not been conspicuously successful at regulating the global computer network. Perhaps a more urgent objective should be to engender an environment which fosters moral and social responsibility on a global scale (Halloran J; 1994). The law may only succeed in regulating Cyberspace when the social conditions pertaining in cybercommunities are acknowledged and understood. However, the success or failure of regulation by means of customary rules will depend to a large extent on the stability of these cybercommunities and the development of their accepted norms and values.

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Footnotes

1. With apologies to H. G. Wells whose Modern Utopia was one of the texts which provided some inspiration for parts of this article.

2. See for example the draft European directive on electronic signatures, COM (1998) 297 final.

3. A term evoking the definition of Cyberspace in Gibson's Neuromancer.

4. For a more detailed description of the modus operandi see e.g. Ito M; 1997. Alternatively information may be cleaned from the contributions to the many news groups dedicated to MUDs - a large number have titles starting with alt.mud and rec.games.mud but there are many others which can be found by doing an appropriate search.

5. For a psychological assessment of the effect of the breakdown of relationships in Cyberspace see e.g. Turkle S; 1996

6. See e.g. Dibbell J; 1996 and Part 2 of Porter D; 1997.

7. In a later case, the head of Compuserve in Germany was charged and convicted of facilitating access to proscribed material.

8. Discussed further in Rowland D; 1998.

9. Arguments for and against techno-utopianism are presented by a number of contributors to Kling R; 1996.

10. Butler's Utopian vision was, of course, Erewhon, an anagram of nowhere.

11. Although there is evidence of the growth of 'vigilante' groups in Cyberspace which take it upon themsleves to 'police' certain aspects of behaviour.

12. An example is acceptable use policies for computer networks at most Universities which frequently attempt to regulate the material on the network to a higher standard than would be required by the relevant legislation.

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