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The following discussion thread excerpt is from a recently completed, free law.com online seminar, “The Constitution and the Internet,” moderated by Professor Eugene Volokh and co-moderated by Professor Thomas E. Baker. Program contents, including discussions and library documents, remain available at no cost. For information on this program and other law.com seminar offerings, please visit http://www.law.com/seminars. MODERATOR, PROFESSOR EUGENE VOLOKH, UCLA SCHOOL OF LAW, LOS ANGELES, CALIF. One of the questions for today is “Can a two-century-old document keep up with a technology that is evolving at the speed of light?” Let me offer a hypothesis: The Constitution will have no more trouble “keeping up” with the Internet than it did with the steamboat, the telephone, or the atomic bomb. Cyberspace, despite the appeal of the metaphor, is not a place. It’s not a jurisdiction. As Michael Froomkin put it, no one lives in cyberspace. Cyberspace is just a tool that people use to communicate with each other — a wonderful tool, but not obviously a constitution-changing tool. The Constitution is founded on certain fundamental moral and practical assumptions and principles, and I know of no mere communications tool that can really dramatically undermine those principles. The First Amendment remains almost entirely unchanged by the Internet, just like it was unchanged by the telephone. Same with the Commerce Clause, which survived the steamboat and the railroad and will survive cyberspace. Now it’s true that some aspects of a new technology may change the law, either rapidly (for instance, I think that the community standards component of obscenity law can’t really survive in an environment where a Web site can’t tell where it’s sending material) or more slowly — the steamboat and the railroad did over many decades lead to a broadening of congressional power of commerce, but only because they changed society first and then this change led to a change in the law. But in neither situation will the Constitution have much trouble “keeping up.” As to the quick but narrow changes, courts will, as usual, adapt old principles to somewhat different factual situations, sometimes correctly and sometimes incorrectly. Nothing that new or striking about that, and I’d wager that relatively few principles, especially constitutional ones, will really have to be seriously changed. As to the longer-term but more systemic changes, I agree the Internet may well change society in ways that we can’t predict, and social changes lead to legal changes that we can’t predict. Who knows? But for the next 10 or 20 years, I’d bet against it; and the time-scale is such that constitutional law will probably have little trouble “keeping up,” since it will be keeping up with social changes that happen at far less than “the speed of light,” rather than with the more rapid technological changes themselves. Yes, cyberspace will be tremendously important for American business. Yes, it might affect our lives. But the best approach to constitutional law in the cyberspace era, I maintain, is still what I call “the presumption of the continuity”: In most situations, the rules will remain pretty much the same, because the underlying moral and practical principles justifying the rules will remain pretty much the same. But I welcome people’s arguments for why this presumption is likely to be rebutted! MITCHELL SHRON, SOLE PRACTITIONER, HYDE PARK, N.Y. I agree that cyberspace is just a tool, but how people wield the tool will be the challenge. The Napster case is merely the tip of the iceberg. What amazes me is not that the technology for sharing music files is so readily available. Rather, it is people’s attitudes about what the record companies called “theft.” The ease of transfer and the rationalization that it boosts record sales belies an underlying shift in the concept of personal property. It is not just college kids that are downloading music. Plenty of professional people with high-speed access are taking their share of music. Preteen Harry Potter fans are receiving cease and desist letters from TimeWarner for posting copyrighted material on their fansites. Middle-aged ladies in the heartland are freely trading in copyrighted crochet patterns. If the only deterrence to intellectual property theft is the difficulty in obtaining that property, then the emergence of the Internet into the mainstream of America is going to make copyright pirates of us all. Is this a fundamental shift in the concept of property or just a heady explosion of exuberant technophiles that will end after the owners put the thumbscrews on display? CO-MODERATOR, PROFESSOR THOMAS E. BAKER, DIRECTOR, CONSTITUTIONAL LAW CENTER, DRAKE UNIVERSITY, DES MOINES, IOWA Professor Volokh sounds like Frank Easterbrook in “Cyberspace and the Law of the Horse,” 1996 U.Chi. Legal Forum 207. That article suggested that “Beliefs lawyers hold about computers, and predictions they make about new technology, are highly likely to be false. This should make us hesitate to prescribe legal adaptations for cyberspace.” Judge Easterbrook could have been speaking for me when he wrote, “I don’t know much about cyberspace; what I do know will be outdated in five years (if not five months!); and my predictions about the direction of change are worthless.” But I like to think that I know something about the Constitution and our constitutional history and tradition. I agree that some aspects of the Internet will be easily folded into existing constitutional doctrines. Due process and “in personam” jurisdiction kinds of things will take care of themselves. But I wonder if the Supreme Court will have as easy a time of dealing with Internet issues as Professor Volokh allows. This set of Justices had to take a couple of tries at figuring out what to do with cable TV — which I submit is not nearly as protean and ubiquitous as the Internet. The Internet has the power to change society in important, even fundamental ways. If we take the view of legal history from Lawrence Friedman and Kermit Hall and other historians to imagine law to be a reflection of history and society, then those changes in the way the world will work will be reflected in the way the law, including constitutional law, develops. As a lay person — not a professional historian — I strongly suspect that the Internet will have a profound effect on society well beyond the telephone or the steamboat. I hope we can wonder about these possibilities and what the challenges might be for the legal and political systems. MITCHELL P. GOLDSTEIN, DIRECTOR, JOINT COMMISSION ON TECHNOLOGY AND SCIENCE, RICHMOND, VA. I don’t think that the Internet will drastically change constitutional doctrines. For example, if we look at jurisdiction decisions, we saw a move toward the “if you post it, and it is accessible around the world, then you are subject to suit … anywhere in the world” doctrine and the “if the server is located is State A, then you are subject to State A’s jurisdiction” doctrine. Now, we have the tried-and-true International Shoe doctrine being applied. The only problem with applying current legal doctrines is the lack of understanding that the Internet is no more revolutionary than the telephone or the photocopying machine. Granted, the law required a little bit of tinkering to address specific differences, but the law works if it is applied as it has always been applied. LOWELL S. KENDALL, ASSISTANT GENERAL COUNSEL, TEXAS DEPARTMENT OF CRIMINAL JUSTICE I think the real impact on the Constitution will not be in fundamental doctrine but in how the court defines the elements that make up current doctrine. For example, the streaming technology (Real Player etc.) will demand a new definition for what constitutes a broadcast. Part of the reason that many radio stations no longer “broadcast” over the Internet is there is uncertainty over whether such broadcasts require further compensation to the artists. As stated in one of the articles in the library, the community standard test for obscenity is a paper tiger as it applies to the originator of the material — they have no idea who or where their “product” is being viewed. CO-MODERATOR, PROFESSOR THOMAS E. BAKER OK, I will try to come up with some examples of how the Internet might have a dramatic and even profound effect on constitutional law. Try these two. First, the Internet is a “marketplace of ideas” in a way that no other marketplace of ideas has ever been like: [the] Justice Holmes metaphor has come true. Technology has returned us to the time of the founders, in a manner of speaking, in that entry barriers to Web publishing are so low that every person is his or her own publisher. Con Law types will recall the argument for state regulation and a statutory right of access to newspapers in Miami Herald v. Tornillo because newspapers had become like common carriers. Or how about the old Red Lion case’s idea of FCC regulation based on scarcity of frequencies. What will the new technology do to these kinds of ideas and assumptions? Second, the early, more libertarian attitudes of Netizens used to insist that the Internet was beyond the reach of government, that the ‘net was different than real space, that it was ungovernable. Is it? How will governments try to rule cyberspace? What issues will that bring before the courts? Will we replicate the geography of space and the sovereignty of countries in this new medium? And what about an example of the arguable need to rethink the basic and foundational distinction between state action and private action? Writers like Larry Lessig in his book “Code and Other Laws of Cyberspace” (we will talk about his ideas later this week) suggest that government regulation of the Internet is necessary to keep it free, to prevent the commercial interests from regulating it in their own self-interest and against individual freedoms and rights. With past technologies like the ones Eugene Volokh has mentioned, the government seemed to be ahead of the game of regulation and control. Not this time around, at least not so far, to my mind. When government does gear up to regulate, what will the Constitution have to say about it? PANELIST, PROFESSOR CASS SUNSTEIN, UNIVERSITY OF CHICAGO SCHOOL OF LAW, CHICAGO, ILL. As a small qualification to Eugene’s comment, let me pose a case: Suppose that someone sends a statement on the Internet that doesn’t quite meet the Brandenburg test for incitement (say, because it’s not directed to incite imminent lawless action); suppose, too, that the statement is overwhelmingly likely to produce significant lawless action within a week or 10 days. By “significant,” I mean a serious loss of life. Is it so clear that Brandenburg should be applied mechanically? Might not Dennis, which allows more in the way of a balancing test, make sense? The suggestion would be that when thousands or even millions of people will read the message, the ordinary incitement standard might be diluted a bit. No? The case of bomb-making instructions might be analyzed similarly. Maybe such instructions are protected by the first amendment when in The Nation, but maybe not if the readership is much larger and more dangerous in nature. Are these issues so clear? PANELIST, PROFESSOR CASS SUNSTEIN At first glance, Eugene seems quite right. Think about libel, or commercial fraud, or incitement. In all these areas, the existing doctrine seems basically as well suited to cyberspace as to “space-space.” One exception might be the power to reach zillions of people at the same time. But as a starting point, the existing doctrine is awfully good. What worries me is not so much the doctrine as a structural problem: the diminished place of public forums, including general-interest intermediaries, such as newspapers and weekly magazines. The power to personalize, or to customize, creates a danger of social fragmentation. It’s not clear what, if anything, should be done about this. But with respect to the power to create deliberating enclaves of like-minded people, the Internet really is something new, at least in degree. PANELIST, PROFESSOR PAUL SCHWARTZ, BROOKLYN LAW SCHOOL, BROOKLYN, N.Y. Cass Sunstein makes an interesting point about the potential for the Internet to fragment viewing audiences into like-minded enclaves. But I wonder whether this phenomenon is really new or will take place to a great enough extent to have a harmful effect; it was always possible, after all, to access general publications (e.g., New York Times) as well as publications that have more of an ideological ax to grind (the National Review or The Nation). To be sure, the Internet does lower the transaction costs of finding the more specialized enclaves — they are just a click away, after all. Yet, I am not sure that my accessing the specialized enclave will keep me from looking into the mass media world (if only to check on information sources at which more general audiences are looking) PANELIST, PROFESSOR CASS SUNSTEIN Paul Schwartz makes some good points. But note that it’s a lot easier, now, to talk only or mostly, or far more, with like-minded people, and plenty of Internet users are taking the opportunity. In any case time is limited. If you’re spending a lot of time speaking with people who think that Clinton is a crook, or that Bush stole the election, you’ll have less time to spend on other topics and views, even if you don’t avoid the mass media. Some technical papers demonstrate the point empirically, and there’s empirical evidence as well — references on request. LOWELL S. KENDALL In response to Mitchell’s eloquent comments I would suggest that we have all been (and to some degree still are) copyright pirates. We have all (at least I have) made tapes or burned CDs of music that we did not pay for, be it from a CD borrowed from a friend or like we did in the old days — sit by the radio and wait for our favorite songs to come on and hit the record button. The essence of the Napster controversy is not copyright but the scope of the alleged transgressions. It seems that the corporate types and artists were and are OK with limited theft (their silence on CD burners speaks volumes) but the bottom line will always prevail … and in this case it is profit, not creative control. For better or worse the Constitution is well suited for simple profit issues. PANELIST, PROFESSOR DAVID POST, TEMPLE UNIVERSITY SCHOOL OF LAW, PHILADELPHIA, PA. I think you’ve stacked the deck a bit, Eugene. I guess I don’t understand what you mean by “change the Constitution.” As I see it, previous technologies unquestionably “changed the Constitution” � “the freedom of speech” doesn’t mean exactly what it did before radio and television, does it? That doesn’t even seem arguable, to me. CO-MODERATOR, PROFESSOR THOMAS E. BAKER I want to pick up on something that David Post mentioned. In the first posting of the day, Eugene Volokh downplayed the effect of the Internet on the Constitution to compare it to the way the Constitution enveloped the steamboat — that was one of his examples. Well, now. It just so happens that I am teaching Con Law I to a group of interested and talented first-year law students and we have spent days and days talking about the commerce clause. Think back to your first-year law school study. Gibbons v. Odgen (1824) was a case about a steamboat. It also allowed John Marshall to take a nationalist approach to the commerce power. It is full of principles that continue to shape and influence modern doctrine and holdings. Ditto Cooley v. Board of Wardens (1851) and The Daniel Ball (1871). When the Supreme Court wanted to push the envelope — to use a space-age metaphor — in Wickard v. Filburn (1942) to uphold the outer reaches of the New Deal over the economy, the Justices repaired to those old steamboat cases. Risking the problem of trying to see past our own time, I submit that the Internet has a far greater potential for changing the economy and everyday life than did the steamboat in its day. If the steamboat was a commercial force that nationalized the economy, perhaps the Internet has the potential for being a like force to internationalize the economy — to accelerate and elaborate the globalization that everyone in politics and business keeps talking about. So we might think about the foreign commerce power as well. JONATHAN BENDER, LAW OFFICE OF JONATHAN BENDER, WASHINGTON, D.C. I’d like to address Professor Sunstein’s remarks about “deliberating enclaves of like-minded people.” Thus far, the fear of warp-speed atomization (to mix a couple of non-Internet tech metaphors) has not come to pass. Just ask people who bought stock in iVillage.com, or any of the other gender/racial/national “Community Portals” that have gone or are going belly up. In any event, such enclaves, to the degree they facilitate deliberation, should perhaps be seen as facilitating rather than undermining democracy. I’m more concerned by what might be seen to be an opposite trend, in which it becomes so easy to petition our politicians via e-mail that congressional e-mail servers become jammed. The very ease with which constituents can communicate electronically may come to devalue their communications. On the other hand, think about how trivial real-time mass polling is likely to become in the near future. Here the danger may be that it will be so easy to assess precisely the public’s “top of the head” views that no time will be left, as a practical matter, for deliberation. Of course, the government-by-poll trend predates the Web, and the Web has already hastened the trend by shortening news cycles, but the potential for direct, mass interaction with politicians and their pollsters may still dramatically accelerate the trend. PANELIST, ROBERT CORN-REVERE, PARTNER, HOGAN & HARTSON, WASHINGTON, D.C. I agree with David Post, that to ask whether cyberspace has changed the Constitution really is the wrong question. This is particularly true with regard to First Amendment questions in that an initial premise in Professor Volokh’s introduction, that “[t]he First Amendment remains almost entirely unchanged by the Internet, just as it was unchanged by the telephone,” is at least half wrong. The Constitution has been “changed” by electronic media throughout the 20th Century, but the Internet is a first — and very promising — exception. The extent to which the First Amendment protects speech has been dictated — to a large extent — by the technology used to convey it. As Justice Robert Jackson wrote in a case involving the regulation of sound trucks, each medium is “a law unto itself.” This notion led the courts to provide no First Amendment protection for certain media for decades, and to craft different standards, providing varying levels of protection, for others. It took the Supreme Court almost four decades to conclude that cinema is protected by the First Amendment, and a couple more to provide protection equivalent to that of the print media. The telephone may not have “changed” the First Amendment, but courts through the late 1980s and mid-1990s struggled with questions whether common carriers had a First Amendment right to engage in electronic publishing, and whether they were obligated to provide all information services, such as dial-a-porn. (The telephone also had a substantial effect on the evolution of Fourth Amendment law between 1928 and 1967.) The Supreme Court did not seriously address the extent to which cable television is protected by the First Amendment until the mid-1980s, and it did not hold that cable programming is entitled to full First Amendment protection until last year. The Court’s position on must-carry rules, and its recent denial of cert in a case challenging cable ownership and channel occupancy restrictions, suggests that it continues to have greater tolerance for certain “economic” regulations affecting this medium than it does for print. Broadcasting is a special case in point. Relying on largely fabricated concepts of scarcity, the courts have enforced a lower level of First Amendment protection for the broadcast press, and continue to apply this separate regime to Direct Broadcast Satellites. Justice William O. Douglas wrote that this approach represents, in essence, a “new First Amendment.” Even supporters of the attenuated protection provided for broadcasters, such as Dean Lee Bollinger, acknowledge that it represents “another world” when compared to traditional First Amendment scrutiny. This separate world has been preserved and extended by the regulatory apparatus of the FCC. The Commission currently is seeking to apply this lower level of protection to digital television, and is beginning to ask questions about regulating interactive television. Can the Internet be far behind? Fortunately, in Reno v. ACLU and a growing number of lower court cases, the answer has been that a new medium does not “change” the constitution. For one thing, different media are no longer distinct in an age of convergence, making the creation of new standards for each new medium a meaningless exercise. For another, it is impossible for courts and policymakers to keep up with Internet time. The courts typically take decades to develop new standards for new media, while the Internet is evolving before our eyes. So. Cyberspace has not changed the Constitution. At least, not yet. But this is not because of a lack of trying on the part of would-be regulators who have proposed various theories for new First Amendment standards for this medium (e.g., extending the pernicious “secondary effects” doctrine to regulate Internet speech under the rubric of “cyberzoning”). JIM C. DURKIS, PATENT COUNSEL, DEPT. OF ENERGY, SAVANNAH RIVER OPERATIONS OFFICE, AIKEN, S.C. On the issue of copyright infringement and Napster, while scope may have been a concern, certainly also was the blatant nature of the alleged stealing. Letting your friend copy a song from your new CD is impossible to police because it is anonymous. Creating a public forum where this copying takes place is something different. The copying is still going to take place on one level or another. With the development of peer-to-peer file sharing software it will continue to occur, simply not as openly as Napster as allowed it. The Constitution may provide protections for copyrights but limitations on policing keep making arguments against improper copying moot. MODERATOR, PROFESSOR EUGENE VOLOKH I’m delighted to see the breadth, depth, and vitality of this thread; let me mention a few random thoughts I had in response to it: 1) Some of the examples of how cyberspace might change constitutional law, I think, turn not so much on cyberspace as on other matters. For instance, while courts might well be tempted to stretch Brandenburg when the not-quite-incitement is sent to millions of people, that question can come up with other mass media — such as newspapers, radio and television (broadcast or not), and the like — as well as with cyberspace. In fact, it has in some measure come up, with the copycat cases (from Olivia N. v. NBC to the recent “Natural Born Killers” case). True, cyberspace might make such issues more common, because more people will be able to speak to a mass audience, and this speaking will often take place without the intermediation of more supposedly responsible editors. But the issues, I think, are not new. 2) I’m also not quite persuaded by the argument that radio and television have dramatically changed First Amendment law. True, First Amendment law is much more speech-protective today than in the era before radio and television, but I think that’s primarily a result of other trends. And, also true, First Amendment law governing over-the-air radio and television is actually less protective than the law governing the other media; but that, fortunately, is an experiment that has generally been judged as less than a success, and Reno v. ACLU suggests that it will not be repeated for the Internet. First Amendment law, at least as to content-based restrictions, is generally medium-independent, with the exception of radio and television; I think it should stay this way (and become even more so), and I suspect that it will. 3) Finally, I agree that the history of the Commerce Clause shows that technology can indirectly change law, by knitting American (or world) society more closely together, by changing patterns of commerce and migration, and so on. But this change is indeed indirect, mediated through social changes — technology changes social practices, which then, in turn, end up reflected in the law. Recall that the opening question was whether the Constitution can “keep up” with changing technology; and with such socially mediated changes, which take place over decades, I think the Constitution will be able to keep up just fine. LISA HONE, WASHINGTON, D.C. Even if cyberspace is a “mere communications tool” as Eugene has suggested, combined with the power of modern-day computing to analyze, organize and present information, it is a tool that throws into stark relief some of the competing moral and practical assumptions on which constitutional jurisprudence has relied (and created). Thus, for example, the First Amendment and the right to privacy (whatever that is, and wherever it can be found) clash quickly and loudly when the courts start to post on the Internet all case filings for the world to access. Moreover, while intellectually the law that has evolved around the limits of jurisdiction, and constitutional due process can deal with jurisdiction issues in cyberspace, the real world may not be able to adjust so quickly. For example, if two eBay users — a buyer in Missouri and a seller in Florida — are having a dispute about a product one purchased from the other, would due process allow the Missouri buyer to sell [to] the Florida seller in Missouri? Maybe so, but that is not a practical solution for either party. PANELIST, PROFESSOR MICHAEL FROOMKIN, UNIVERSITY OF MIAMI SCHOOL OF LAW, CORAL GABLES, FLA. I think that there’s less disagreement in this thread than meets the eye. Let explain why I say that, then cause trouble. There are people in the world, often those who read as much into Post & Johnson as one can, who think that the Internet will change law in fundamental rather than evolutionary ways. I don’t really hear much of that here. And even on the days when I believe it myself, I’m not thinking of constitutional doctrine, but rather material things such as the financial system. It seems to me that any major social phenomenon has effects throughout society, and the Supreme Court (at least when it is following election returns rather than deciding them) is no exception. But I’ve yet to hear much that convinces me that the overall effect of this technology on doctrine will be greater than that of, say, hallucinogenic drugs on the Fourth Amendment. That said, there are obviously certain doctrinal areas where new technology makes old assumptions or old compromises hard to maintain. It may be, for example, that “community standards” in obscenity law makes less and less sense unless we define the community to be the nation, or retrofit the technology to impose strong jurisdictional tagging. If I had to argue the case that the Internet will be the cause of a major constitutional change, I think I’d say this: The trans-national character of the Internet threatens a wide variety of established businesses methods and established government practices (Napster is just the tip of the iceberg). This creates a powerful coalition interested in preserving the status quo. Preservation of the status quo requires internationalized decision-making, usually at a supra-national level, and also substantially greater intrusion into personal privacy (gotta make sure people are not illegally copying/trading/digital-money-laundering /encrypting/whatever). Intrusion into private space reduces the idea of “home” as sanctuary, affecting civil society because so much personal and political activity becomes the potential subject of observation. Meanwhile, the very organization of power relations in the state is subjected to an anti-democratic turn as power flows upwards to a new combination of treaty bodies, ad hoc institutions, private meetings of government ministers, so-called self-regulatory bodies (think: “ICANN”), and the like, so that fewer decisions remain to be made by Congress. Presidential/executive power grows relative to Congress, since the executive picks and instructs the delegates to some of these meetings, but all national power shrinks relative to the new institutions. Now, that’s a “constitutional” change, even if requires no change in constitutional doctrine. I’m not ready to promise this future, but I certainly cannot dismiss it.

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