Book Review

Citation

Hannabuss, S. (2002), "Book Review", Library Hi Tech News, Vol. 19 No. 3. https://doi.org/10.1108/lhtn.2002.23919cae.002

Book Review

Beyond Our Control? Confronting the Limits of Our Legal System in the Age of CyberspaceStuart BiegelThe MIT PressCambridge MA and London, UK2001xiv + 452 pagesISBN 0 262 02504 3 (hardback)$34.95/£23.95

All the problems we face in real life we also face on the Internet. Biegel's analogy is the original Wild West, where some people wanted to roam free and others wanted to fence it in. This is a useful metaphor for intellectual property, digital or otherwise, and it is an equally good way of describing the fast-changing balance between regulation and anarchy on the Internet. Biegel's approach is very American but, since much Internet material and many of its users are American and much of US law affects everyone else, the assumption is one most readers can accept, at least provisionally. Readers from around the world can add - and will want to add, because the book is infectious - examples from their own neck of the woods, their own jurisdictions and experience. It is that sort of book - a robust schematic, highly readable cases, clear unpretentious style, open-minded, and highly informed (the guy has read everything in the US bibliographical backyard). Biegel himself teaches at the University of California in Los Angeles, and he is clearly well up on legal and literary, policy and technology issues : it shows through in this well-argued, stimulating examination of Internet regulation.

He asks if anyone is in charge? That's a question which begs another one - is the Internet really different? And a third - who cares? He catches your attention right away with the Napster/MP3/RIAA debate - as a battle it has got the lot - copyright, infringement, commercial interest, peer-to-peer dissemination, case law, cartels, distributed networks, and plenty of copycats and sons-of like Gnutella and Freeserve (and the debate rumbles on as we speak . . .) The Internet is and is not different, and this is why some people say that the law is the law and others that copyright is dead and anarchy rules OK. It is not "one" homogeneous virtual community but a complex sampling frame of niches, subcultures, segments - Usenet newsgroups, bulletin boards, chatrooms, publishing ventures, ISPs, alternative Web sites, lobby groups and extremists. This makes for radical changes in legal practice and public policy. Biegel is good on this - it is an easy field for clichés, which he avoids, and he is always readable. He knows how to manage notes - lots of good things in these, at the back, authenticating, providing supporting evidence, citing sources reliable and partisan, scholarly and trade.

So what about this regulation thing? If we look at traditional legal categories (like contract, tort, and defamation), it's all there on the Internet, just as anywhere else. But Biegel advocates something more: he rejigs the legal intellectual schematic so that four types of problematic conduct on the Internet emerge. They go from really harmful to just difficult: there is dangerous conduct which risks physical and national safety (child porn, unlicensed online health care, cyber-stalking, cyber-terrorism, with some apt cases to back it up); then fraudulent conduct which impacts upon our economic safety (hacking, denial-of-service spamming, deceitful business practices where privacy is abused, online fraud when people misrepresent information or pretend to be someone else, and this is big in online auctions and online investment services); then unlawful anarchic content (this includes copyright violations in cyberspace, covering texts and images, games and videos, in fact anything digital, as well as online porn and defamation - is the Internet one big gossip column?); and finally inappropriate conduct (online harassment, extremist and hate-related Web sites, aggressive business practices like employee e-mail surveillance).

This takes us quite a way into the subject and freshens up many of the tired paradigms I have seen in the area. But Biegel moves on: are there limits to our (i.e. the USA, and by extension law on the Internet) legal system? Yes, partly because it is a domain where ethics plays a part, and so do social norms. Beyond that, there is regulation, and this is where he is at. Three approaches to regulation: the first is legal frameworks in individual countries (like the "decency" legislation in the USA, allegedly protecting children online, like the NET Act 1997 extending copyright protection to digital materials), the second is international models of agreement (typically a mixture of Berne and WIPO and ICANN, with world trade and TRIPS thrown in), and the third is based on changing Internet architecture through code-based regulation (e.g. protocols like TCP/IP).This is a good, useful summary of things, not easy to write, since it summarizes pretty well-known stuff, but it really does set things up for the final stages in his argument.

This comes when he re-examines the four legal areas and discusses how well the three regulatory models work with them. The structure of the book is neat and clear and he does this without undue repetition, staying lively throughout. He calls it a road-map for prospective regulation, because he is really doing two things - providing a contemporary history of Internet regulation and dissecting what forms, and combinations of forms, of regulation really seem to work. Dangerous conduct, like cyber-terrorism, shows that laws are a baseline but need beefing up (say, for hacking), and this we can see in legislation, international work, code-based developments and technical changes: in fact, no "one" regulatory model has been used on its own, and his forecast is that only a mixed approach will succeed in the future. Not that "success" for him necessarily means more or less regulation : he stays neutral about the Utopian or dystopian aspects of the Internet, forcing the reader on to the back foot intellectually: with a book like this, the reader has to make up his/her own mind. This is what makes it great for a personal read, an academic text, and a catalyst for appropriate professional training and practitioner discussion.

Each of the other types of problematic conduct are reviewed in this way. Fraudulent conduct kicks in with online consumer rights, and in the USA the Federal Trade Commission through over 100 cases since 1994 have shown an active hand against scams and frauds online. Some solutions here, like data mining, present privacy/confidentiality challenges of their own: no one said that regulation would be easy. Unlawful anarchic conduct takes us back to Napster and the MP3 war between rights owners and millions of free spirits just wanting a bit of free digital music. Here again a mix of regulatory solutions seems available - copyright law, code-based changes and filters, but, even with all of them working together, there is no guarantee that there will not be evasions and conflicts. Stakeholders have rival interests, and consensus is hard to reach. Inappropriate conduct opens up free speech, something the Internet, certainly under its US banner, quintessentially represents. Biegel's analysis is honest: the First Amendment culture in the USA, highlighting free speech, scarcely moderated in a global sphere by traditional conceptions of community standards (the old three-part obscenity test), has opened up the Internet to a great deal with which the USA might be able to live but which gets stick internationally. Content like hate-sites, adult porn, free expression, get another airing, and readers will almost certainly want to move that on further. He ends with 20 guidelines on using his road-map, advocating a new look at regulation, challenging us to ask whether there really is one Internet community and so one coherent standard, arguing for a mixed model approach, and telling us to remember ethics and social norms.

A lot more could be said about a book as rich as this. More can be added - from the UK perspective, for example, on Internet law with Smith's (1997) Internet Law and Regulation, on Internet ethics with Langford's (2000) Internet Ethics, and Sparrow's (2000) E-commerce and the Law. Of course, European readers will want more on EU law on e-commerce, and jurisdictional (legislative and case-law) relevance will be a premium for all readers. I would have liked more on patents and trade marks, though domain names take a good spin.

For students and lecturers wanting a good thoughtful read, Biegel has it all - a critical edge, wide reading, a usable extensible schematic for further research, good cases (they can make good law!), and a US focus which helps rather than gets in the way. It is what it is, of course - the "our" is mainly US, and after that the property of netizens everywhere, as advertising copy puts it - but you have to start somewhere. And, by the way, for academic readers, some timely caveats for regulation on the university campus. The story goes on, with a life of its own. Biegel indicates where the limits are and helps us look beyond them.

Stuart Hannabussis a Professor at the School of Information & Media, Robert Gordon University, Aberdeen, Scotland.