Customary Law & Power in Internet Communities: Maltz http://jcmc.indiana.edu/vol2/issue1/custom.html
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Customary Law & Power in Internet Communities
Tamir Maltz
School of Law, University of New South Wales
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Table of Contents
Introduction
Virtual Communities on the Internet
Community Rules
Teaching and Learning the Rules
The Development of Internet Law
Reasonableness
History
Enforcers and Power
Harassment and Interference
Silencing
Capture
Enforcement, Part II: Self-enforcement and the Panoptic Machine
Where is the Source of Law
Forums, Membership and Consensus
The Future
Conclusion
References
Introduction
This essay analyses the evolution of customary law in cybercommunities found on the Internet. This is both an
important and interesting issue. It is important as the power relationships and sources of rules on today's
computer-mediated networks are becoming the template for the future of online communication and are
relevant to potential regulatory strategies. It is an interesting issue as cybercommunities are a novel paradigm
of existence - presence defined by communication alone. This essay begins with a description of these
cybercommunities and progresses to consider their rules, mechanisms of enforcement, power dynamics, and
future.
Virtual Communities on the Internet
One-to-one telecommunications and inexpensive air travel have not created any real communities. A
sustainable community requires continuity, and the sharing of public conversation space. These characteristics
are precisely what networked and computer-mediated communication are capable of, and the Internet [1]
cybercommunities are a manifestation of this potential. These virtual communities are:
...social aggregations that emerge from the Net when enough people carry on those public
discussions long enough, with sufficient human feeling, to form webs of personal relationships in
cyberspace. [2]
The potential of cyberspace is not simply
the creation of yet more "chattering" space - it has the potential of creating a virtual "public sphere" of the
type necessary for healthy democratic governance. The trend of displacement of public spaces such as
town-halls and other community meeting places with the ersatz "public space" of modern media has been
criticised by Jurgen Habermas. Habermas critiques the transferral of the consumer model from economics to
politics - politicians become commodities, consumed by citizens evaluating spectacles staged on broadcast
media. Habermas distinguishes between the 'public opinion' necessary for a healthy democracy, and artificial
'opinion': " Public opinion, in terms of its very idea, can be formed only if a public that engages in rational
discussion exists." [3]
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One importance of electronic communities is that they can help reverse this trend. Although there are
problems, discussed below, in complete faith in electronic democracy - the hope is that:
[the] technical trends in communications technologies can help citizens break the monopoly on
their attention that has been enjoyed by the powers behind the broadcast paradigm - the owners of
television networks, newspaper syndicates, and publishing conglomerates. [4]
Networked communication is a catalyst for community formation. Marshal McLuhan's book title is therefore
misleading. There will never be "the Global Village." There already exist Global Villages. Having one interest
in common is enough to justify the formation of a community of people from around the globe. [5] The real
world is to be shattered in the Networld into a thousand overlapping, fragmented and specialised communities.
The Internet today has cybercommunities for everything - fantasy communities, ethnic communities, topical
discussion communities, professional groups, game playing communities, etc. Two prominent categories of
cybercommunities are Usenet and MUDs, or Multi-User Dungeons (Domains). These are discussed below.
The most prominent collection of cybercommunities on the Internet is called Usenet. Usenet is a hierarchy of
conversation areas called "newsgroups." In each of these newsgroups, users discuss topics by sending a
message to the group and reading responses. In many of these newsgroups there is sufficient continuity and
cohesion that each can be considered a genuine and stable cybercommunity.
Another set of communities are the Multi-User Dungeons (MUDs) and their more advanced versions
MUD-Object-Oriented (MOOs). These offer a similar experience to the early textual computer adventure
games where the user can undertake actions (including communication) by issuing commands such as "look at
the picture", or "say to George, 'Hi, how are you ?'" and receive responses. The immediacy of the interactivity
on MUDs accelerates their development, and certain MUDs have attained a highly advanced state of
community involvement.
Community Rules
Each of these communities is defined by its members, and is dependent upon protocols which govern
communication. A member is only speaking to the group when responding to it, sticking to the topic, obeying
the protocol. Straying from the protocol excludes the speaker from the group: joining a Chess discussion
group and writing about Go, joining a fantasy community and talking about the budget crisis,or engaging in
other more disruptive activities will immediately generate messages that the activity is not consistent with the
aims and purpose of the group.
Thus, cybercommunities are defined by their boundaries and their respective netizens tend to stay within
them. A cybercommunity may expire, or at least undergo a re-birth, when these boundaries are breached. Any
viable community requires rules - in the words of Howard Rheingold:
One of the great problems with the atmosphere of free expression on the Net is the fragility of
communities and their susceptibility to disruption. The only alternative to imposing potentially
dangerous restrictions on freedom of expression is to develop norms, folklore, ways of acceptable
behaviour that are widely modelled, taught, and valued, that can give the citizens of cyberspace
clear ideas of what they can and cannot do with the medium, how they can gain leverage, and
where they must beware of pitfalls inherent in the medium, if we intend to use it for community
building. (emphasis added) [6]
The initial expression of such norms in embryonic communities is customary law. Allen, writing about the
origins of legal systems decades before the Internet, noted:
It is at least certain that in many societies of which we have evidence, before any clearly
articulated system of law-making and law-dispensing has developed, the conduct of men in
society is governed by customary rules...they are 'legal'...inasmuch as they are binding and
obligatory rules of conduct (not merely of faith or conviction), and that the breach of them is the
breach of a positive duty. [7]
Teaching and Learning the Rules
On the USENET, these rules are called "netiquette", a folklore of rules which Internet "old timers try to teach
the flood of new arrivals." [8] Knowledge of the rules is communicated either in publicly accessible files [9]
which are continually updated and codified by volunteers, or by "veteran" users correcting new users. The
latter, often arrogant, form of instruction can be a displeasure:
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This...is the most annoying thing about the net: the boys who've been using it for three months
and feel the need to correct the newbies. [10]
There are mechanisms for the distribution of these rules. For example, on USENET, there are whole
newsgroups devoted solely to instructing new users - one such newsgroup is "news.announce.newusers"
which system administrators [11]
generally insist new users subscribe to and read before venturing any further. [12] The codified rules for each
newsgroup are also generally posted to the relevant newsgroup on a regular basis so that new users are alerted
to the latest version of the rules.
The Development of Internet Law
Allen laments the impossibility of ever being certain of the origin of customary law, given that the origins are
generally in pre-history:
No problem of jurisprudence...has given rise to more lively controversy than the origin of custom.
The difficulty of the inquiry [is]... that it necessarily deals with early social phenomena which are
not ascertainable by positive evidence.... [13]
Benjamin Wittes heralds the Internet as a posthumous solution to Allen's problem:
Suppose you wanted to witness the birth and development of a legal system. You would need a
large, complex social system that lies outside of all other legal authorities. Moreover, you would
need that system somehow to accelerate the seemingly millennial progress of legal development,
so you could witness more than a mere moment of the process. The hypothetical system might
seem like a social scientist's fantasy, but it actually exists. It's called the Internet. [14]
Provided with this opportunity, it is useful to investigate the origin of the content of these rules. One
explanation for the content of the rules is pragmatism, or "reasonableness." [15] To Rheingold such rules are
based on "acceptable conduct." To Allen they are based on
"practices prompted by the convenience of society and of the individual, so far as they are
prompted by any conscious purpose at all." [16]
Other relevant factors which are discussed below include: the attributes of the membership of the
communities, and the history of the community.
Reasonableness
The most well known instance of netiquette is the prohibition of "spamming." Spamming is the practice of
sending a single message to multiple newsgroups rather than sending the message once and noting the various
newsgroups in the header of the message. This practice is strongly discouraged as it multiplies the
communication traffic required to transfer the message around USENET, costing users in transmission costs.
Aggravated spamming can occur in many circumstances, such as when the message is gratuitously
commercial, and/or is clearly unrelated to the topic being discussed, or is abusive.
Pragmatism, or "reasonableness" dictates that plain spamming should be prohibited because traffic is
needlessly multiplied - in Internet jargon: "bandwidth" is wasted. [17] Similarly, the unsympathetic reception
for many commercial messages is that they are often unsolicited advertising unrelated to the topic of the
newsgroup to which they are posted. [18] Also, the exclusion of commercial content is partly to avoid a
networked "tragedy of the commons"- i.e. the floodgates must not be opened to endless commercial
advertising disrupting the public community conversation space.
History
The history of the Internet probably explains much of the anti-commercial ethic. The Internet was for many
years an academic network, reliant upon publicly funded academic resources, and commercial use was strictly
prohibited. There is therefore a strong tradition of anti-commercialism. This tradition has been gradually
abandoned as the Internet has become a more publicly accessible group of networks supported by private
rather than governmental entities.
The Internet evolves and self-regulates naturally...reflecting the beliefs of the people involved. As
people with more commercial expectations get online, the character of the services will change.
[19]
Some new users today, unacquainted with Internet history, welcome advertising that is specifically targeted to
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their area of interest, and most advertisers are not interested in alienating consumers, so they are unlikely to
flood newsgroups with repetitive advertising. [20]
Enforcers and Power
All rules require some sanction to secure enforcement. In the physical world, the ultimate source of power,
enabling such enforcement of rules, is physical power and the sovereignty of nation-states. On the Internet,
materiality and atoms have been replaced with signalling and electrons. [21] Cyberspace is a new universe
where the laws of physics have been replaced with software and transmission protocols. Power is manifested
by technically controlling or disrupting the communication of other users.
The traditional experts on physical power - the military - are now also interested in understanding
cyberspacial power. "Infowar" is a neologism for this novel battlefront. A useful military definition of
"infowar" is: [22]
...Information warfare is...attacking an adversary's information infrastructure though exploitation,
denial and influence, while protecting friendly information systems. (emphasis added)
Building on the military's definition above, Table 1 summarises the direct mechanisms for exercising power
over others' communication. Examples of these mechanisms are discussed below. Harassment and interference
can be considered as exercising power over the reception of information: "harassment" refers to the forced
reception of unwanted information, and "interference" refers to obstructing the reception of wanted
information. Similarly, "silencing" and "capturing" are exercises of power over the transmission function.
Table 1
Mechanism Meaning Examples
Forced reception of unwanted
Flaming
Harassment (reception)
information.
Interfering with either the current or
Cancelling current messages.
future transmission of information or
Silencing
Deleting stored messages
destroying past archives of
(transmission)
from public database.
transmissions.
Posting offensive messages
Capture Controlling transmission.
under other user's name.
(transmission)
Mail-bombs and mass
flaming.
Obstructing ability to receive The controller of a MUD,
Interference
information. denying a user access to a
(reception)
MUD, or to a part of the
MUD.
Harassment and Interference
The most commonly deployed sanction is "flaming". A flame campaign occurs when many individuals across
the Internet each post a vitriolic e-mail message to the offender. Although the quality of the content of these
messages is usually enough to punish and deter the offender, the sheer quantity of messages can overwhelm
the offender's e-mail system and shut it down temporarily. Sometimes individuals will send a large message
posted multiple times to achieve the same effect - a "mail bomb." [23] The enforcers are, therefore, either
outraged individual victims and/or volunteer vigilantes [24] backed by a loose community consensus. The
most famous example of such collective punishment occurred in 1993 when two Arizona lawyers advertised
their legal services on multiple newsgroups (a commercial and therefore aggravated spam) and were
overwhelmed with angry e-mail from all over the Networld.
Silencing
Not only were these two lawyers overwhelmed with e-mail, but their original messages were cancelled.
Cancelling others' messages is another means of enforcement. A user with a superior understanding of
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USENET software can enforce the rule against spamming by removing offending messages, through
deployment of special software. For example, a prominent user (or group of users), operating under the
pseudonym "Cancelmoose [tm]" has undertaken the role of enforcing the rule against spamming.
"Cancelmoose [tm]" is able to cancel, despite objections by the authors of those messages, because of a
superior understanding of Usenet software. Spammers could, of course, if they were persistent enough, re-post
their messages as soon as they were cancelled. Silencing can also be the result of the removal of historical
records rather than contemporary postings. On one discussion group which keeps records of interactions, an
unwelcome feminist had all her past messages deleted from the archives - an Orwellian erasure of history. [25]
Capture
LambdaMOO is a fictional environment where characters controlled by users interact. Two characters on
LambdaMOO were "virtually" raped. The "female" and "androgynous" victims were subjected to virtual
violence and brutalisation seen by their corresponding users and the LambdaMOO community via text
displayed on their screens (Dibbell, 1993). The offender was able to coerce his victims' characters because of
a powerful piece of programming called a "voodoo doll". This piece of programming allowed him to control
the victim's actions by making it appear that his descriptions of their actions were originating from them. The
offender was eventually restrained by a third party with a more powerful piece of programming - a "gun"
which "enveloped" the offender. Similarly, a well known anti-spamming activist had a spam maliciously
posted in his name and received thousands of protesting flames. [26]
Enforcement, Part II: Self-enforcement and the Panoptic Machine
A unique aspect of cyberspacial rules is that they are capable of almost perfect enforcement. Since a user's
existence is totally embedded in communication, and since this digital communication is often recorded,
computerised searching capabilities [27] can almost guarantee detection [28] of any infringement, particularly
in public spaces. This change in the extent of detection is also a shift to a different paradigm - omniscient
power, [29] analogous to Bentham's panopticon. [30]
The panopticon is the architectural expression of an idea - the enforcement of power through discipline based
on an expectation of omniscience. Foucault's description of the panopticon is:
Bentham's Panopticon is the architectural figure of this composition...at the periphery, an annular
building; at the centre, a tower; this tower is pierced with wide windows that open into the inner
side of the ring; the peripheric building is divided into cells...they have two windows, one on the
inside, corresponding to the windows of the tower; the other, on the outside, allows the light to
cross the cell from one end to the other. All that is needed, then, is to place a supervisor in a
central tower and to shut up in each cell a madman, a patient, a condemned man, a worker or a
schoolboy. [31]
The major effect of the panopticon was to "induce in the inmate a state of conscious and permanent visibility
that assures the automatic functioning of power." [32] It is not important whether the supervisor is actually
looking at a particular inmate, it was sufficient if the inmate recognised this as a possibility.
In cyberspace, a person's existence is purely digital. A user's total existence, both past & present can be
accessed by computer-assisted search engines. With these capabilities, life online begins to feel like being
inside a panoptic machine more efficient even than Bentham's. [33] The responsibility for enforcing the "law"
would then immediately fall to the individual:
He who is subjected to a field of visibility, and who knows it, assumes the constraints of power;
he makes them play spontaneously upon himself; he inscribes in himself the power relation in
which he simultaneously plays both roles; he becomes the principle of his own subjection. [34]
In light of the above extracts, consider the following excerpted comments from a lighthearted Internet
discussion that concerned the implications of the existence of search engines on actions in cyberspace: [35]
...My mother (sic) admonition that one should never say or do anything he or she would not want
to read on the front page of the New York Times seems to be applicable here. I will hence forth
seriously consider any statement or posting to be made on internet in the light that some potential
school, law firm, partners, client, or government agency may someday in the future in light of
circumstances that I can not even imagine at this time consider my posting offensive.I guess this
is my last post...
...I presume that this type of post trolling would only be really useful if you could use it to
construct data profiles -- and that may not be impossible. You would need to do a statistically
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significant study of people's posting habits and correlate it to personality types -- maybe to
Meyer-Briggs or whatever...
...But isn't a real part of the problem that people won't do that. They will instead simply say:
"Three postings to alt.sex.whatever. I don't hire perverts....
...This problem is, I suspect, either *very* minor, or about to go away: who among us, now that
we know of such post trolling, will ever again dare to post in such areas? (One never knows, after
all, when that Supreme Court nomination might come through.) Only the unwary will be caught,
and on the 'net, folks won't stay unwary for long...
That it is well known that these search engines exist, and that these search engines can be used by the
cybercommunities themselves does not impede the panoptic machine:
...anyone may come and exercise in the central tower the functions of surveillance...The seeing
machine was once a sort of dark room into which individuals spied; it has become a transparent
building in which the exercise of power may be supervised by society as a whole.[36]
Computer-assisted search engines, by enabling efficient access to the historical textual presence of netusers,
are the modern equivalent of the cumulative documentary surveillance undertaken by police:
...this unceasing observation had to be accumulated in a series of reports and registers; throughout
the eighteenth century, an immense police text increasingly covered society by means of a
complex documentary organisation...unlike the methods of judicial or administrative writing,
what was registered in this way were forms of behaviour, attitudes, possibilities, suspicions - a
permanent account of individuals' behaviour. [37]
Communication technology has often been associated with dystopian panoptic ideas. In George Orwell's
Ninteen Eighty-Four, a giant television screen was "big brother's" vista of surveillance. [38] However, the
destiny of computer-mediated communication does not necessarily lead to the erosion of privacy. The
technology of encryption may become the antidote to holistic surveillance because it allows messages to be
encrypted using ciphers so that only the intended recipient can read them. [39]
To stretch the metaphor - encryption eclipses the body in the shadows of the panopticon. However, certain
necessary activities, such as commercial transactions, must be partly lit. Encryption allows these activities to
be undertaken anonymously - i.e. the face remains darkened although a body is seen:
...citizen encryption makes possible two extremely powerful antipanoptic weapons known as
digital cash and digital signature. With digital cash, it is possible to build an electronic economy
where the seller can verify that the buyer's credit is good, and transfer the correct amount of
money, without the seller knowing who the buyer is. With digital signature, it is possible in the
identity-fluid online world to establish certainty about the sender of the message. [40]
The potentially panoptic future is difficult to predict but could be forestalled by a legal entitlement of citizens
to use unbreakable encryption. [41]
Where is the Source of Law?
The ultimate source of law differs among cybercommunities depending on how power is distributed within
them. Whereas the technical power in Usenet is well distributed, the power structure in LambdaMOO is
strictly hierarchical. The LambdaMOO virtual-rape saga concluded with the controller of the LambdaMOO
environment, effectively the Xerox researcher [42] who set up LambdaMOO, Pavel Curtis, managing a
transition toward structures of democratic self-governance based on polling and elections. [43] Mr Curtis can
orchestrate such a transition because he controls the computer programs underlying LambdaMOO, giving him
ultimate control over the LambdaMOO environment. Given such omnipotent power, Mr Curtis's character
within LambdaMOO - "Hakkon" - appears to other LambdaMOO denizens to be a "god", and the delegates of
his supernatural powers are called "wizards." [44]
Unlike LambdaMOO, given the present distribution of power on Usenet, a resolution cannot generally be
imposed from "above." To most people, this is a complete antinomy - it is difficult to imagine something that
actually works that doesn't have a controller. This is the "centralised mind set":
We are all conditioned to attribute complex phenomena to some kind of controlling agency. We
commonly assume, for example, that the frontmost bird in a V-shaped flock is the one in charge
and the others are playing follow-the-leader. Not so. The orderly formation is the result of a
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highly responsive collection of processors behaving individually and following simple
harmonious rules without a conductor. [45]
The flock of birds is a useful metaphor for how Usenet works. Each computer within Usenet has software [46]
which complies with "simple harmonious rules". Like the flock, these computers all transmit newsgroup
messages among each other without a central controller. The LambdaMOO application however, is a self
contained environment on a single computer which is completely dominated by the controller of the software
on which it is running.
The technical difference between these two environments affects our understanding of where their rules
ultimately originate. It is the familiar contrast between the Austinian dogma that rules can only originate from
a sovereign, and the alternative view that a sovereign is not a pre-requisite to all law:
In the one, the essence of law is that it is imposed upon society by a sovereign will. In the other,
the essence of law is that it develops within society of its own vitality. In the one case, law is
artificial: the picture is that of an omnipotent authority standing high above society, and issuing
downwards its behests. In the other case, law is spontaneous, growing upwards, independently of
any dominant will. [47]
Allen critiques the Austinian perspective on the origin of laws, and writes that "Their origin - whatever their
present scope and effect - is essentially a matter of social history; and to predict that this origin is and must be
a single sovereign, of a modern type, is to stultify the inquiry in limine." [48] In LambdaMOO, however, the
origin of all law is
an omnipotent sovereign, the same sovereign that brought the community into existence by programming the
virtual environment in which the community exists - Hakkon. Even the recent democratic reforms on
LambdaMOO which were intended to shift the role of governing the community from Hakkon to the
characters themselves does not sever the ultimate source of power - the "dominant will". The netizens of
LambdaMOO themselves have commented in internal discussions that they should not fool themselves that
they are truly masters of their own destiny.
The source of technological power is therefore either the creation of a new domain with its own rules (e.g.
Pavel Curtis creating LambdaMOO), or superior knowledge of the rules of an existing universe (e.g.
Cancelmoose within Usenet).
The examples above are "high-level" examples, i.e. they are closer to the informational "content" than to the
electrons running down the wires. However, technical control over the "low-level" network protocols which
govern the transmission of information may also be a source of power:
It is easy to overlook the fact that the message traffic over digital networks consists entirely of
strings of binary digits. In this environment, the line between the meaning contained in message
transmissions, and the purely technical contours of these messages, is blurred indeed.... [49]
Are these network technical specifications, then, part of the "law of cyberspace"? I believe that
they are - or at least that it would be profitable to analyse them as such. [50]
...the individual network "organisations" themselves - [possess] at least certain inherent
advantages in the competition for rule-making precedence in cyberspace, and that this controller
is therefore potentially the locus for much of the substantive rule-making that will take place
there. [51]
Forums, Membership and Consensus
Apart from sheer technological power, the evolving rules on the Internet are also dependent on the
membership of the community and the communicative force of factions within fora such as the newsgroup
"net.abuse" or the meetings within LambdaMOO.
Benjamin Wittes describes Cancelmoose's role as an enforcer:
Cancelmoose is a fascinating example of the Net's self-government because of the care he takes to
avoid going beyond the community consensus on which cancels are legitimate. He posts a
justification for each of his cancels on a newsgroup devoted to net abuse, including in that
justification a copy of the original message and a list of the newsgroups from which the spam was
removed. He also includes information allowing sysops to override the cancels...Cancelmoose
also takes pains to emphasise that the content of messages does not influence his decision whether
or not to cancel them. [52]
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Since Cancelmoose is backed by consensus, it is considered by the virtual community to be benign. Another
cancelling user - nicknamed "Cancelpoodle" - is notorious. Cancelpoodle, an anonymous user, cancelled
messages simply because they contained material claimed to be copyrighted by the Church of Scientology.
LambdaMOO also has forums. Following the virtual rape on LambdaMOO, intense discussion took place
both at meetings in virtual rooms within LambdaMOO and newsgroups concerned with the activities in
LambdaMOO. Julian Dibbel compiled some summaries of these discussions identifying the various factions
within the LambdaMOO environment:
"Parliamentarian legalist types argued that that unfortunately Bungle [53] could not be
legitimately be toaded [54]
at all, since there were no explicit MOO rules against rape, or against just about anything
else--and the sooner such rules were established, they added, and maybe even a full-blown
judiciary system...the better...
"Others, with a royalist streak in them, seemed to feel that Mr Bungle's as-yet-unpunished outrage
only proved this New Direction silliness had gone on long enough...high time the wizardocracy
returned to the position of swift and effective leadership...
"For [the technolibetarians]...assholes...[were] best dealt with not through repressive social
disciplinary mechanisms but through the timely deployment of defensive software tools...Don't
whine to the authorities about it--hit the "gag" command...
"...no position was trickier to maintain than that of the MOO's resident anarchists. Like the
technolibbers, the anarchists didn't care much for punishments or policies, or power
elites...complicated by the fact that the most vocal anarchists in the discussion [were] none other
than legba...who wanted to see Mr Bungle toaded...Needless to say, a pro death penalty platform
is not an especially comfortable one for an anarchist to sit on." [55]
That the attributes of the membership of these communities is determinative of the evolving set of rules is also
highlighted by feminist alarm at the lack of female presence on the Net. Dale Spender has written that:
At this very moment, as the road rules for the superhighway are being written and worked out,
there is no critical mass of women involved to ensure that the highway code reflects some of their
priorities and interests..."Netiquette" - as the new code is called - is another good example of the
way men get there first and then stand guard at the gateway; their rules of entry are that you have
to play their way if you want to be allowed on the road. [56]
The current set of rules on the Usenet owes a lot to its computer science faculty origins and the prevalence of
the libertarian hacker ethic. [57]
The cyberethic includes as its themes: a trust in technology coupled with a distrust of governments
(techno-libertarianism), a faith in freedom of expression, and confrontational dialogue. On the Internet,
everyone is playing a "game", where the players look to someone else to set the rules. Consider the following
comment on the LambdaMOO data-rape incident:
There was a woman crying virtual rape on LambdaMOO. It's a game, lady. You lost. You could
have teleported. OR changed into an Iron Maiden (the spiky kind) and crimped his dick. But by
playing in this way you really
lost. Because the Moo's also a social place where you can meet people with real cultural
differences - like Klansmen - and make them respect you as a woman.... [58]
One effect of the ethics expressed above is to exclude women. Consider the approach to flaming made by
various authorities on netiquette, and the effect on women:
...Thus the guidelines...prohibit "flames of a personal nature", and Shapiro and Anderson advise
"Do not insult or criticize third parties without giving them a chance to respond"...Normative
statements such as these are compatible with male values and male adversarial style...Yet these
are behaviours that female survey respondents say intimidate them and drive them off of lists and
newsgroups. [59]
One solution is self-defence: "It is indisputable that there are women in cyberspace - a significant number of
them - who have not only come to terms with the power ploys of the boys, but who are prepared to beat them
at their own games and on what they see as their own turf. This has to be seen as one way of dealing with the
problem." [60]
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Some feminists view these attitudes as revealing an implicit assumption that "control of the network should
remain with the more aggressive parties to the detriment of those who can be subjugated by them." [61]
The Future
Cybercommunities are increasingly facing interference from physical communities. Electronic pornography,
e-mail harassment, defamation, etc., are familiar activities in a new setting which are increasingly attracting
lawyers' and legislators' attention. Novel activities such as virtual-rape, cancelling others' messages, [62] and
spamming [63]
are also attracting legal attention. It may be true that "the medium is too young, too immature to be frozen in
place with rules." [64]
However, it also appears that legislators perceive the Internet as an anarchic joy-ride and their constituents
seek their their help in applying the breaks.
The question of whether legislatures [65] can effectively regulate computer-mediated communication remains
unanswered, although recent government activities, such as a German prosecutor closing down access to
certain neo-Nazi information, [66]
indicate that in the short-term governments can exercise control. In the long-term, however, it is unlikely that
individual governments will be able to control the medium completely.
Firstly, the decentralised nature of the Networld ensures that communication does not go through one
controlling bottleneck. [67]
This increases the costs of monitoring infringements. Encryption further increases the cost of monitoring.
Secondly, since every interconnection point is equipotent, online communication is itself is an "exit strategy"
from government regulation. When certain activities violate the rules of a particular government - the offender
simply shifts geographic locations. [68]
Thirdly, there is a legislative lag behind continual advances in technology which modify the topography of
networked communication, and leave gaps between the contours of existing legislation and the online
environment.
It is possible that the nature of the medium may mean that only self-regulation by netizens is likely to be
effective. [69]
An understanding of cybercommunities and their developing rules presents an alternative or addition to
ineffective legislative interference:
...[the Internet is] very antagonistic towards control, and making an effort to control it via the big
stick is almost bound to fail, whereas educating, making people aware of the problem and making
the community - because it is a community - aware that there are people who are misusing it and
abusing it and offering them tools to help them change that is I think a far more productive way of
going about it than simply attempting to legislate it out of existence.
...remember there's something like 32 to 35 million Internet users out there who are using
it...every day. They make a far more sensitive, and a far more effective screen than any single or
even multiple law enforcement agency could ever form, and if they're educated, willing to assist
and feel bound by a code of ethics to assist in stamping out material that they, the community,
feel is inappropriate, they'll be far more effective than any law enforcement agency could ever
hope to be. Neighbourhood Watch on the Internet! [70]
Conclusion
The reputation of computer-mediated communication for being a cyberspacial "wild-west" is not wholly
accurate. Cybercommunities are thriving, are important, and are currently dependent upon self-regulation for
their survival. This regulation is not free from growing pains or the challenge of external interference. Given
the difficulties of regulating these cybercommunities from the outside, potential regulators should attempt to
understand and then consider internal governance as a regulatory tool. Finally, cybercommunities should
ensure that they articulate their interests clearly [71] when the real sheriffs arrive online.
Footnotes
[1]
Functionally, the Internet is an international network of computer networks - a network of networks - which
allows the transmission of digital information among them. Various software applications which will be
described below (including "Usenet", and "MUDs") have been built employing this functionality. A shorthand
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for the Internet is "the Net".
[2] H Rheingold, The Virtual Community (1994), at 5.
[3] Rheingold, op. cit., at 283.
[4] Rheingold, op. cit., at 289.
[5] B H Gates, The Road Ahead (1995), at 210-211
[6] H Rheingold, The Virtual Community (1994), at 64.
[7] Allen, Law in the Making, 1964 Oxford University Press, at 69.
[8] Rheingold, op. cit., at 64.
[9]
These are generally called FAQs (frequently asked questions) files which are either available to be
downloaded by new users, and/or regularly posted as messages to newsgroups. One of the well known and
satirical FAQs concerning netiquette is - B Templeton, "Emily Postnews Answers Your Questions on
Netiquette", which is available on the internet at
http://www.smartpages.com/faqs/emily-postnews/part1/faq.html
[10] M Holderness, "Internet: Matters of Etiquette...", Guardian, 15 September 1994, at 4.
[11]
A system administrator is the person who controls a shared computer. In this context, I am referring to the
person who controls the computer (e.g. a university computer) which enables users (e.g. students) to access
the Internet.
[12] Holderness, op. cit.
[13] Allen, op. cit., at 79.
[14]
B Wittes, "Witnesing the Birth of a Legal System", 27 Feb [1995] The Connecticut Law Tribune, Supplement,
Special Section: Technology; p 8A.
[15]
Allen highlights that this reasonableness was in roman law not a function of deliberate will and consent, but of
a consensus as to a custom's "objective utility", a "recognition of the custom as being obligatory in order to
achieve a certain end", op. cit., at 83.
[16] Allen, op. cit., at 70.
[17] Holderness, op. cit.
[18]
Some of the more outrageous spams such as "Make money fast" are noted in: S Harris, "Internet: A plague
that travels by post; Easy to do and often tricky to trace, spamming is sweeping the Net", The Guardian, 6 July
1995, at 4.
[19]
Douglas Rushkoff as quoted in R Vadon, "Media Futures: Anarchists make the best police - Self-Regulation is
the way to stop offensive material travelling on the Internet", Financial Times, 29 May 1995, at 11.
[20]
One of the more notorious advertising "spammers" has argued her case in: M Siegel, "Internet ads aren't all
bad", 10 July 1994, The San Francisco Examiner, at B-5.
[21]
N Negroponte analyses the implication of the move from atoms/physical to electrons/digital in various settings
in - "Being Digital", Hodder & Stoughton (1995).
[22]
D Richardson, citing the U.S. Navy definition of "Information Warfare" in: "Confounding the enemy: the
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black art of infowar", Jane's Defence '96 155, at 155.
[23] Holderness, op. cit; and Vadon op. cit.
[24]
Even the Guardian Angels have entered the act, forming a group called the "CyberAngels" to police the
Internet like a cyberspacial subway - E English, "Combatting cybercrime", Jan 1996, Australian Personal
Computer at 29.
[25]
Discussed in Neutopia, "The Feminization of Cyberspace" - a message posted to
news:misc.activism.progressive
[26] Noted in S Harris, "Internet: A plague that travels by post", 6 July 1995, The Guardian, at 4.
[27]
For example, one of the powerful searching mechanisms is "AltaVista", a program which can search for
keywords (including names, email addresses, or expressions) through the USENET newsgroups, users' files
stored in directories accessible to the public, and the contents of the world wide web in a matter of seconds.
There is no reason why this capability can not theoretically be expanded further to encompass the interactive
communities and their conversation areas, e.g. MUDs, and other conversation areas - see S. G. Steinberg,
Wired 4.05, "Seek and te shall find (maybe)" 109, at 178:
"One thing we [Architext] want to do is index IRC (Internet Relay Chat)...It will let you find people who are
talking about things you are interested in right then."
[28]
Punishment too can be automated. For example, the detection and elimination of spamming has been partially
automated by programs called "Cancel-bots" - See the news.admin-net-abuse FAQ on the internet at
http://www.smartpages.com/faqs/net-abuse-faq/part2/faq.html
[29] M Foucault, "Discipline and Punish - The birth of the prison", Penguin, at 197.
[30] Rheingold, op. cit., at 289.
[31] Foucault, op. cit., at 200
[32] Foucault, op. cit., at 201
[33] Although Bentham intended on adding a system of pipes to allow the supervisor to listen as well as see
the inmate, he encountered technical limitations. In Bentham's final version the supervisor could only see the
inmate - Foucault, op. cit., at 202 footnote 3. In cyberspace an individual's total virtual existence may be open
to inspection.
[34] Foucault, op. cit., at 202-3.
[35]
The following comments are excepts of posts by various people on the Internet discussion group "cyberia-l"
during early 1996.
[36] Foucault, op. cit., at 207
[37] Foucault, op. cit., at 214.
[38]
Noted in William J. Mitchell, "City of Bits", Chapter 6.11. Available on the Internet at
http://www-mitpress.mit.edu/City_of_Bits/Bit_Biz/SurveillanceElectronicPanopticon.html
[39]
Unlike one-to-one communication, participation in public forums will by definition be more difficult to
protect from data trolling.
[40] Rheingold, op. cit., at 295.
[41] See Rheingold, op. cit., at 296.
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[42] A U.S. corporation renowned for its innovative computer research.
[43]
A document is available in the LambdaMOO virtual library called "LambdaMOO takes a new direction"
which describes the transition.
[44]
See J Smith, "FAQ: Basic information about MUDs and Mudding" - available on the Internet at
http://math.okstate.edu/~jds/mudfaq-p1.html at paragraph 1.35
[45] M Resnick's idea, noted as such in N Negroponte, "Being Digital" (1995), Hodder and Houghton, at 157.
[46]
This software is incredibly varied and sometimes even slightly incompatible: See the FAQ: "Usenet Software:
History and Sources" - available on the Internet at:
http://www.cis.ohio-state.edu/hypertext/faq/usenet/usenet-software/part1/faq.html
[47] Allen, op. cit., at 1.
[48] Allen, op. cit., at 3.
[49]
David G. Post, "Anarchy, State, and the Internet: An essasy on Law-Making in Cyberspace", 1995 J. Online
L. art 3, par 23.
[50] Post, op. cit., at par 22.
[51] Post, op. cit., at par 26.
[52] Wittes, op. cit.
[53] the offender.
[54] MOO jargon for being excluded from the MOO.
[55]
J. Dibbell, "A Rape in Cyberspace - or How an Evil Clown, a Haitian Trickster Spirit, Two Wizards, and a
Cast of Dozens Turned a Database into a society", The Village Voice, December 21, 1993, pp36-42. Also
available at ftp://ftp.parc.xerox.com/pub/MOO/papers/Village/Voice.txt
[56] D Spender, "Nattering on the Net - Women, power and Cyberspace" (1995), at 196.
[57]
see Kanaley, "Hackers Inhabit Nebulous Morality of Cyberspace with its Anarchic Flavor, The Practice May
Be the Rock 'n' Roll of the '90s", The Salt Lake Tribune, August 28, 1995, Pg C8.
[58] Rosie Cross, 1995, "Modem Grrrl; Wicked St Jude", geekgirl, 1 p8. Noted in D Spender op. cit., at 231.
[59]
S Herring, "Gender Differences in Computer-Mediated Communication: Bringing Familiar Baggage to the
New Frontier", Keynote talk at panel entitled "Making the Network Word: Is there a Z39.50 in gender
communication?", American Library Association annual convention, Miami, June 27, 1994. Available on the
internet at http://www.honors.indiana.edu/%7ew131/herring.html
[60] Spender, op. cit., at 231.
[61]
D K McGraw, Sexual Harassment in Cyberspace - The Problem of Unwelcome E-mail, 20 Rutgers Computer
& Tech. L. J. 491
[62]
The legality of cancelling messages by 'Cancelmoose [tm]' was the subject of a very interesting discussion on
the Cyberia-L listserv in late 1995.
[63] See L Himelstein, "Law and Order in Cyberspace" 4 December 1995, Business Week.
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[64] D Charles, Socialising in Cyberspace, New Scientist, May 16, 1992, at 12; noted in D McGraw, op. cit.
[65]
Judicial reform is unlikely to be sufficient to fit old law to the new paradigm of communications: W S
Byassee, "Jurisdiction of Cyberspace: Applying Real World Precedent to the Virtual Community" (1995) 30
Wake Forest Law Review 197
[66]
S Ascarelli, "Two On-Line Services Companies Investigated in Racial Hatred Case" 26 January 1996, The
Wall Street Journal.
[67] Post, op. cit., at 39
[68] Post, op. cit., at 38-40.
[69]
R Vadon, "Media Futures: Anarchists make the best police - Self Regulation is the way to stop offensive
material travelling on the Internet", Financial Times, 29 May 1995, at 11.
[70]
Extracts from Transcript of panel discussion on ABC radio Australia (2CH) 13:05 18 April 1995. Comments
are by Karl Auer. Available on the Internet at http://www.pcug.org.au/~kauer/tscript1.htm
[71] Byasse, op. cit., at 220.
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