Vol. 14 No. 1 (January 2004)
BEYOND OUR CONTROL? CONFRONTING THE LIMITS OF OUR LEGAL SYSTEM IN THE AGE OF CYBERSPACE, by Stuart Biegel. Cambridge: MIT Press, 2001. 452 pp. Paper, $19.95. ISBN: 0-262-02504-3.
Reviewed by Debora J. Halbert, Department of History and Political Science, Otterbein College. Email: email@example.com.
Concern by legal scholars over the relevance of laws designed in a pre-digital age has emerged as the Internet has grown in popularity, transcended national boundaries, and changed the metaphors we use to describe everyday life. There is great debate over the differences between cyberspace and everyday pre-digital life. Scholars who argue that cyberspace is an entirely new form of community with its own rules and regulations suggest that this realm should remain free from the laws that govern the non-digital world. Other scholars suggest that there is nothing new about cyberspace and all laws that apply in the "real" world should apply equally in cyberspace. Biegel takes this continuum about the applicability of law to this "new" environment as the starting point for BEYOND OUR CONTROL. At the heart of Biegel's book is an investigation of both the limits of our legal system and the ways in which existing law is more than adequate to address new issues emerging in cyberspace.
BEYOND OUR CONTROL examines the state of American law, international law, social norms and technological controls as they relate to the definition of crime in the information age. Biegel offers a descriptive discussion of the many issues that emerge when we begin to apply the law in cyberspace. Throughout the book he treats the application of law to cyberspace in a measured and systematic way, carefully building his argument about the law in cyberspace through the categories of problematic conduct he outlines and the ways in which the law can be, and has been, applied to these activities.
The book is divided into three parts. The first part examines the nature of cyberspace and the scope of the problem of applying the law within a new context. In this first section Biegel describes the state of debate over law and cyberspace. As is true throughout the book, Biegel's approach is to thoroughly examine all sides of the debate and then draw conclusions that place him somewhere in the middle. For example, he concludes that there are new and innovative problems that emerge when one begins to evaluate cyberspace in the context of the law. However, he also wishes us to conceive of cyberspace as multiple spaces, some of which are working very well and some that reflect the types of crimes committed in the "real" world. It is a pragmatic and not very controversial argument.
The first section goes on to elaborate the types of problematic behaviors that can be found in cyberspace. Indeed, much that follows relies upon the categories developed in Chapter Three. These categories include dangerous conduct, fraudulent conduct, unlawful anarchic conduct, and finally, inappropriate conduct. Each category then details examples ranging from the dangerous conduct of cyberterrorism to the inappropriateness of hate-related websites. Through this schema, Biegel covers the many contemporary controversies surrounding cyberspace - child pornography, harassment, cyberstalking, copyright violations, cyberterrorism, any many more.
Once the categories and problems in cyberspace have been established, Biegel turns briefly to the limits of the current American legal system in Chapter Four. These limits are also carefully categorized, but should be familiar to anyone who remains current in the literature. The problems primarily deal with local, national, and international jurisdictional boundaries and the problem of relying too heavily on law enforcement instead of normative practices. However, instead of using examples from technology and cyberspace issues, Chapter Four more generally lays out the limits of the legal system - limits that apply beyond cyberspace.
Section Two considers how we might go about regulating problematic behavior in cyberspace. More specifically, the three chapters in this section examine the laws that have been passed to regulate Internet-related issues and the different regulatory approaches that are being used. Chapter Five examines the ways in which the traditional legal system is used to create new laws that extend to cyberspace. Specifically, Biegel describes the passage of the Communications Decency Act and the surrounding litigation, the No Electronic Theft Act of 1997, and the Internet Tax Freedom Act of 1998. He uses these examples to examine the advantages and disadvantages to traditional lawmaking as it applies to the Internet and ultimately concludes that while this is a helpful approach, it is not the only approach to solving problems in cyberspace. The other possible approaches are outlined in Chapters Six and Seven where Biegel examines the state of international regulation and regulation at the level of code. While finding relevance to all layers of regulation, for Biegel, control of the code has advantages for regulating the Internet that are not available through the national and international legal framework.
The final section of the book takes the types of regulation that are possible and an example of each type of problematic conduct detailed in the first part of the book and attempts to examine how the law can be used to better regulate cyberspace. In Chapter Nine, Biegel discusses Denial-of-Service (DOS) attacks as a form of cyberterrorism by more broadly defining terrorism for cyberspace (p.232). He then describes how concepts already present in American law, regulations available at the International level, and changes in the computer code that construct the Internet can be used to regulate this problem. Chapter Ten takes a similar approach to the issue of on-line fraud, Chapter Eleven investigates digital copyright issues, and Chapter Twelve looks at on-line hate. Each chapter outlines the problem and then goes into detail about regulations that might be used to solve the problem. As the argument moves from problematic behavior where relative consensus exists, such as terrorism, to behavior where less consensus on the level of crime actually exists, Biegel attempts to note that defining a "crime" is very much a political process.
It is this last issue regarding the politics of defining problematic behavior and the types of regulations that are necessary to change these behaviors that I wish could have been better developed throughout the book. For example, I am not convinced that a broader definition of terrorism that defines denial-of-service attacks as cyberterrorism without investigating some level of intent is the best way to approach the issue. The "new" definition of cyberterrorism according to Biegel is "Extreme or intense force in an online setting, causing unexpected or unnatural results, and used for purposes of intimidating, coercing, or creating an atmosphere of anarchy, disorder, or chaos in a networked environment" (p.232). This definition seems quite broad and discounts the critical literature on the politics of defining some violent acts as terrorism and others as legitimate state-directed behaviors. I would have liked to see more analysis examining how issues of power and politics enter into the social construction of ideas like cyberterrorism.
Biegel enters even muddier waters when he assesses copyright law in the digital environment. It is clear that he is trying to come to terms with the issue by developing a middle ground between the strong protectionists who wish to see everything become intellectual property and the information libertarians who would like to see everything exchanged freely. One of the problems he identifies is that absent a consensus on what should be the subject of copyright law, regulation becomes very difficult. It is important to recognize starting from the existing copyright law does not mean starting from a position of neutrality. Copyright is an excellent example of how the law can be used to establish property boundaries and construct deviance while supporting the power base of already existing property owners. Biegel is correct to acknowledge that, given the complexity of copyright law, it is unrealistic to expect average citizens to understand and apply it to their everyday behavior, and his application of the de minimis doctrine to copyright is interesting and appealing. However, it also seems important to acknowledge that current copyright law is not neutral and that by labeling personal copying in cyberspace a "problem" in many ways the unintended consequence is to reproduce the power relationships inherent in the copyright law.
As a conclusion, Biegel lists a series of "regulatory principles" that emerge from the book. He argues that, "this book takes the position that regulation is a neutral term, and that in a vacuum it should be viewed as neither a curse nor a panacea" (p.356). I would like to see Biegel examine in more detail the politics of regulation, much of which is evident in his book. For example, to regulate at the level of computer code suggests a different distribution of power than to regulate at the international level. One is privatized with not democratic deliberation; the other can possibly be the focus of international social movements and great discussion. Often it is important to recognize that regulation has been designed to protect the status quo and punish innovation-the Recording Industry Association of American and Napster case is an excellent example-that does not create a neutral playing field, but simply serves the more powerful actor. In the end, Biegel's argument is sympathetic to these issues of non-neutral regulation, but I would like to see these points more explicitly assessed. Given these observations, it is important to note that his comments about where we should go from here are informed and useful.
Ultimately, I recommend this book as a significant description and history of legal issues as they relate to cyberspace. It is comprehensive and detailed and illustrates the author's expertise on all levels, from the infrastructure of the Internet to international law. The writing and analysis is clear and precise, and the book is accessible for even general readers. One possible problem with the formatting of the text is that the detailed headings and outlines often make it tempting to skip over sections. Given the fact that one must read through all sides of the issue before finding Biegel's opinion, skimming is not recommended. It can be very difficult to pick up on Biegel's argument because he includes so much detail. However, the detail helps illustrate why this book offers a credible and interesting look at the relationship of law to cyberspace.
Copyright 2004 by the author, Debora J. Halbert.