Anonymity, Autonomy, and Accountability Challenges To The First Amendment Incyberspaces

The Yale Law Journal Company, Inc.
Anonymity, Autonomy, and Accountability: Challenges to the First Amendment in

Cyberspaces
Author(s): Anne Wells Branscomb
Source: The Yale Law Journal, Vol. 104, No. 7 (May, 1995), pp. 1639-1679
Published by: The Yale Law Journal Company, Inc.
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Anonymity, Autonomy,and Accountability:
Challenges to the First Amendment
in Cyberspaces
Anne Wells Branscombt
I. INTRODUCTION
Principles underlyingthe First Amendmentfavor an informationagora'

promotingand embodying democraticideals.2The pioneers of what is often
called cyberspace,3the electronic environmentthroughwhich the computer
literati engage interactively,anticipatethat this new frontier promises the
opportunity for full participation in the electoral process as well as
developmentof a flourishingcomputer-mediated informationmarketplace.The
experiences of these computer-competentcitizens (sometimes called
"netizens"4)using the Internet,5a backbone for interconnectingcomputer-
t Research Associate, Project on Information Resources Policy, Harvard University

<branscom@csn.org>;Scholar-in-Residence,AnnenbergPublic Policy Center,Universityof Pennsylvania
(1994-95). The authorwishes to acknowledgethe contributionsto her analysis of her colleagues in three
computer-mediatedconferences:Cyberiaand NEWJURISon the Internetand The Law of the Electronic
Road on LEXIS Counsel Connect.
1. Agora comes from the Greek,and describesa largecentralopen squarein the city wheremerchants
broughttheir wares and where citizens came to exchange ideas, a communitygatheringplace where all
manner of political, economic, and social transactionswere consummated.See MERRIAMWEBSTER'S
COLLEGIATE DICTIONARY24 (10th ed. 1993).
2. See TurnerBroadcastingSys., Inc. v. FCC, 114 S. Ct. 2445, 2470 (1994) ("[A]ssuringthat the
public has access to a multiplicityof informationsources is a governmentalpurposeof the highest order,
for it promotes values central to the First Amendment.");Associated Press v. United States, 326 U.S. 1,
20 (1944) ("[T]he widest possible disseminationof informationfrom diverse and antagonisticsources is
essential to the welfare of the public ....").
3. The term "cyberspace"was introducedin 1984 by William Gibson, in his novel Neuromancer,to
describethe virtualspace in which his charactersinteracted.WILLIAM GIBSON, NEUROMANCER 51 (1984).
It has been adoptedby users of electronic networksmore broadlyto encompassthe entire experience of
communicatingthroughcomputer-mediatednetworks,both in the futuristicview of a three-dimensional
electronic representationof the real world and also to include all mannerof interactivityvia text only.
4. The term "netizens" is borrowed from the recent works of two authors. See Jim McClellan,
Cyberspace:Judge Dread, OBSERVER (London),Jan. 29, 1995, at 76; HowardRheingold, "Web"Spreads
into a Wildfire,DENVER POST, Jan. 13, 1995, at 22.
5. One commentatorhas describedthe Internetas follows:
The Internetis best thoughtof as a suite of digitalcommunications-packet-switchingprotocols
that, when adopted by many nonhomogeneousdigital networks, create the equivalent of a
virtual,interactiveoverlay network.The Internetis not a physical network.It has no owner, no
control point, sells no services. Thus the Internetis betterthoughtof not as a network,but as
a remarkablypowerful arrayof internetworkingcapabilities,throughwhich great numbersof
1639
1640 The Yale Law Journal [Vol. 104: 1639
mediatedcommunicationsglobally,suggestthatwe now have withinour grasp

a technology designedto bringtogetherlike-mindedindividuals,regardlessof
where they live, work, or play, to engage in the creation of a new type of
democraticcommunity:a communityunboundedby geographical,temporal,
or other physical barriers.
These new experimentsin democracydo not simply representa futuristic
vision. On the contrary,they pervadethe electronicenvironment.Observersof
online activity have recognizedinclinationsto preserveindividualand group
autonomywithout governmentalintrusionor authoritariancensorship.These
inclinations are fully in accord with the motivationsthat brought the early
pioneersto the new continentto preservetheirreligiousindependence,develop
new frontiers, and exert self-determinationin their systems of governance.
Many of these new experimentshave led to the developmentof user groups
that look upon themselves as "virtualcommunities"entitled to deal with
problemsarising in the electronicenvironmentas they find appropriate.Such
virtualcommunitiescan be said to occupy separateand diverse cyberspaces,
essentially carving out domainsof their own over which they choose to exert
jurisdiction.Therefore,the generic term "cyberspace"does not aptly describe
these evolving communities.For the purposeof this Essay, I shall referto the
varying electronic domains as cyberspaces and refer to the whole as the
"Networld."6
The unique quality of being able to post messages to and from everyone
with an electronic address without editorial control or the interventionof
elected representatives promises to become one of the most powerful
democratic tools ever devised. Because these cyberspaces in the Networld
ignore space, time, and physical circumstances,they remove the visual cues
that often inhibit or facilitate communication.Furthermore,the marvels of
digitalcommunicationhave erasedmanyof the prejudicesthatarisefromthese
culturallyspecific visual cues. Therefore,the encounterbecomes a truemeeting
of the minds, where the power of persuasionresides in what is said-that
which is protectedfrom governmentalinterferenceby the FirstAmendment-
ratherthan what is seen.
users can reach one another and a great array of sources of informationaround the world
throughthe facilities of many networks.
Conversationwith Lewis M. Branscomb,Professorof Science and Technology Policy, John F. Kennedy
School of Government,HarvardUniversity,formerChief Scientist of IBM and Director of the John F.
Kennedy School of GovernmentProjecton the NationalInformationInfrastructure(Feb. 1995).
6. According to Linda M. Harasim,"Humancommunicationhas become the majoruse of computer
networksand has transformedthem into a social space where people connect with one another.Computer
networksare not merely tools wherebywe network;they have come to be experiencedas places where we
network:a networld."Linda M. Harasim,Networlds:Networksas Social Space, in GLOBALNETWORKS:
COMPUTERSAND INTERNATIONAL COMMUNICATION 15, 15 (L.M. Harasim ed., 1993); see also NEAL
STEPHENSON,SNOW CRASH18 (1992) (referringto this new phenomenonas the "Metaverse").Other
metaphorsare equally applicable:informationsuperhighways,global infobahn,i-ways, electronic cafes,
informationmarketplaces,electronic playgrounds.
1995] Branscomb 1641
In this Essay, I examine some of the ways in which culturalbehavior

developing in cyberspacesis challengingthe First Amendment.In addition,I
explore the mannerin which intrusionby real-worldcommunitiesmay inhibit
the free flow of informationin cybercommunitiesand threatennot only the
independence of such communities but also the value of electronic
communicationas a vehicle for democraticdiscourse.Given the development
of new cybercommunitiesseekingto engage in self-governance,thereis a very
real possibility that the nation-stateas a mediatoror determinantof socially
and legally acceptable behavior may be displaced by smaller "virtual
communities"online that create their own behavioralnorms. If so, then the
First Amendment may have little effect on the practices and procedures
employed within the Networld.
"Netizens,"however,do assertwhat they call a FirstAmendmentrightof
unencumberedaccess to whateverinformationthey deem personallyuseful or
desirable, and deplore interventionby outsidersor even the proscriptionsof
their own institutions.Although it is not accurateto describe this claim as a
FirstAmendmentright,clearlymanyInternetusers' developingexpectationof
freely flowing channelsof informationwithoutcensorshipby outsiderscannot
be ignored. Many of the users of the commercialinformationservices share
this expectation. Thus, there is no reason why something akin to the First
Amendmentmay not be assertedvis-a-vis transportprovidersofferingservices
in autonomousdomains.
In orderto examine the conflictsand questionsthat the FirstAmendment
will provoke in cyberspaces, I focus upon three areas of controversy:
anonymity, autonomy, and accountability.These three subjects represent
interlockingand competing forces. The elevation of one of these forces has
importantimplications for the other two. For example, a right of absolute
anonymitymay foreclose accountability,whereasfull accountabilityof users
may mean the prohibitionof anonymity.Similarly,full autonomyand control
over the flow of informationmay isolate one from access to informationupon
which democraticdiscourse and a healthy exercise of the functions of self-
governance in a democratic society depend. Therefore, it is necessary to
explore how these forces interactin the context of actual cyberconflicts.In
order to ensure that we are exploring these forces with a common
understanding,I briefly define the forces of anonymity, autonomy, and
accountabilityin the following Sections.
A. Anonymity
True anonymityin the Networldwould mean that no one could trace the
sourceof an electronicmessage.The FirstAmendmentpreventsthe outlawing
of true anonymity,althoughit only preventsgovernmentalinterferencewith
anonymousmessages. For this reason, the new cybercommunitiesas well as
commercial providers of electronic environments must grapple with the

proprietyof anonymity.The possibilityof genuine anonymityimplicatesboth
the positive value in protectingthe sources of certaininformationas well as
the danger inherent in allowing individuals to speak and write without
detection.For some computerusers, anonymityis merely fun and games. For
other anonymous posters, however, the ability to remain unknownremoves
many of the layers of civilized behavioras they realize that they can escape
responsibilityfor negligent or abusive postings.
There are numerous situations in which anonymity seems entirely
appropriateand even desirable.Psychologists and sociologists point out that
people benefit from being able to assume differentpersonae.7It is therefore
naturalthat individualsuse electroniccommunicationto disguise themselves,
as in costumeballs in the multiuserdungeons(MUDs) thatHowardRheingold
describes.8As one student admitted,"It's my hallucinogenof choice.... I
love being able to slip into anotherbody, anotherpersona,anotherworld."9
There are many other valid justificationsfor preservinga limited right to
anonymity.The media often cite "a prominentsource"who does not wish to
be identified,and pseudonymousauthorshave long been with us, sometimes
in the past to preventdisclosurethat the writerwas female for fear her work
would not be publishedwere her gender known. Usually, in these cases, the
publisher or journalist knows the source and vouches for its integrity.
Anonymityhas also been protectedin cases in which actualretaliationor harm
may ensue if the source of the writing is known, as in the case of whistle-
blowers or political dissidentsunderauthoritarian regimes.
Yet, there are also many valid reasons supporting prohibition of
anonymity. Disguising the sources of messages or postings relieves their
authorsfromresponsibilityfor any harmthatmay ensue. This often encourages
outrageousbehaviorwithoutany opportunityfor recourseto the law for redress
7. SarahKiesler, Professorof Sociology at CarnegieMellon University,Addressat the Workshopon

Rights and Responsibilitiesof Participantsin NetworkedCommunities,in Washington,D.C. (Nov. 6, 1992).
8. HOWARDRHEINGOLD,THE VIRTUALCOMMUNITY145-50 (1993). MUDs are multiuserdungeons
or multiuser dimensions, a technology created by the software in a computer to provide imaginary
landscapes in which participantsmay create their own "virtual"reality worlds throughthe use of word
descriptions.Playersjoin in a groupactivity,collectively buildinga communalspace in which to conduct
theirgames. There are also serious professionaluses of such electronicenvironmentsin which workgroups
use the MUD to conduct cooperativeresearch,build analyticalmodels, and exchange views on the state
of the art in their respectivefields.
9. Douglas Birch, Just a Little Too Tangled Up in the Internet,L.A. TIMES, Sept. 5, 1994, at E3.
Anothersummed up her experiences as follows:
Dreams are wonderfulthings. They are the stuff of imaginationand invention.They can lead
to new discoveries, new places, new people. Just like in the dreamfantasies of my own mind,
I can be anything I want online. I can be petite, slim, blond and sexy, or tall, statuesque,
brunetteand sultry.Of course, those who know me know I am neither-but that'snot the point.
The point, fellow sysops, is that I can pretendto be anythingI want to be.
Michele Stewart, The Femenin Touch: "Sex and the Multiple Computer", SYSOP NEWS... AND
CYBERWORLD REP., Nov. 1994, at 34.
of grievances.Law enforcementofficials or lawyers seeking to file a civil suit

might not be able to identify an individualto hold responsible.'0
Many providers of computer-mediatedfacilities do not permit genuine
anonymity.They keep recordsof the real identityof pseudonymoustraffic so
that abuserscan be identifiedand reprimanded."Recent years, however,have
witnessedthe developmentof a trendtowardsthe establishmentof "anonymous
remailers"who provide a guaranteethat messages cannot be traced back to
theirsources;divertingtrafficthroughseveralof theseremailerscan effectively
render an audit trail impossible, once again raising the specter of true
anonymity."
10. Driverson the real highwaysare not permittedaccess withouta motorvehicle license so, logically,
it should be possible to require users of networksto be responsible and identifiable.Indeed, Professor
ArthurR. Miller has made this argumentquite persuasivelywith respectto the deploymentof anonymous
telephone calls:
I believe that anonymity-not privacy-is what is being sought by a telephone caller who
objects to having the telephone numberrevealedby CallerID. The questionthen is whethera
person has a rightto hide behinda veil of anonymityin makinga telephonecall over the public
telephone network .... Society, for example, requiresthat automobileshave license plates to
travel on a public road. This modest deprivation of anonymity is designed to promote
accountability.Those who insist on anonymityin placingtelephonecalls are, in essence, saying
they do not want to be accountableon the communicationsnetwork,which is quite analogous
to driving without a license plate.
See Hearing on S. 2030 Before the Subcomm.on Technologyand the Law of the Senate Comm.on the
Judiciary, 101st Cong., 2d Sess. 265 (1990). Real highways, however, do not carry the same First
Amendmentvulnerabilitiesthat electronic superhighwaysdo.
11. HarvardUniversity forbids its studentsfrom posting anonymousmessages. See HARVARD ARTS
& SCIENCES COMPUTER SERVS.,HARVARD UNIVERSITY, COMPUTER RULESANDETIQuETrE: STUDENT
COMPUTING ATHARVARD 3 (Dec. 1993). A real controversyhas arisenover whetherHarvardstudentsmay
post such messages in non-Harvardelectronic spaces that permitor even encourageanonymousposting.
The Universityof NorthCarolinapermitslurkersto remainunidentifiedbut forbidsand technicallyblocks
uploadingof messages until a user has a verifiableaccountand user identificationon the system. Interview
with Paul Jones, InternetInformationSpecialist, Office of Information,University of North Carolina,in
Chapel Hill, N.C. (Apr. 1993).
Otheruniversitiesdo not have strictenforcementpolicies. For example, MIT has no specific policy
but attempts to discourage anonymous postings while recognizing the difficulty in excluding them
altogether.E-mail from James D. Bruce, Directorof Computing,MIT, to author(Mar.9, 1995) (on file
with author).Moreover,some universitiesdo not have unitarypolicies governingthe computeruses of all
of their students. For example, some schools within the University of Pennsylvaniaprohibitanonymous
messages while others do not. Interviewwith Dan Updegrove,AssistantDirectorof ComputingServices,
Universityof Pennsylvania,in Philadelphia,Pa. (Feb. 2, 1995). In any event, the practiceof offeringpooled
computerfacilities in dormitoriesand variousschools means that studentsusing such pooled resourcesare
not identified. Id. With such a pooled system, it would be possible to use audit trails to track abusive
messages to particularcomputingstations.To trace a message to a particularindividual,however, would
requireknowing that a stationwas used only by one personor would requirethat a supervisorrecordboth
the names of studentsenteringa computingfacility and which computersthey used duringa session.
Commercial informationprovidersare also devising ways to deal with the difficult question of
appropriatelevels of anonymity.For example, AmericaOnline permitsthe use of pseudonymsand makes
no effort to prescreenmessages but reservesthe rightto curtailservice to memberswho abuse the privilege
by posting abusive anonymous messages. Letter from David W. Phillips, Assistant General Counsel,
America Online, Inc., to author(Mar. 14, 1995) (on file with author).
12. See, e.g., Steven Levy, How To Launder YourE-mail, WIRED, June 1994, at 50, 50-51; Joshua
Quittner,An Interviewwith Johan Helsingius, WIRED,June 1994, at 50, 52-53.
B. Autonomy
Autonomy means the right to exert some modicumof control over one's
electronic environment.Efforts to devise some rules to preserve autonomy
must include considerationof several challengingquestions.First, is there a
right to prevent access to, or control the timing and terms of disclosure of,
information about oneself, one's corporation,or one's institutionalentity?
Second, may certaincyberspacesbe maintainedas privatespaces in which the
usersthemselvesdeterminethe governingrules?Third,how can one ensurethe
confidentiality of messages posted to trusted colleagues? Such issues of
autonomyover communicationspresentdifficultchallengesin the cyberspaces.
These questionsare often clusteredwithin the area of law called privacy.
Privacylaw is a fairly recentarrivalon the horizon,but it, too, derives at least
some of its virtuesfrom FirstAmendmentprinciples.At a minimum,privacy
can be translatedinto some sanctuaryto which one may retreat-a personal
space and the ability to screenout unwantedor offensive messages. Although
there may be a First Amendmentright to speak, there is no comparableright
to be heard.13 Furthermore,privacy must mean some degree of autonomy
over personal informationand how it is obtained and deployed by others,
including governmental entities that may have a compelling interest in
obtainingthe information.14
Control over personal informationmay appear to be the flip side of
freedom of speech, that is, the freedom not to speak. This freedom not to
speak simply protects the right not to have informationdisclosed without
consent or in a manner that may be contraryto one's interests. This has
become a matter of considerableconcern; the opportunitiesfor unwitting
disclosurein cyberspacesrangefromuses of electronicidentificationfor access
to the system, to uses of credit cards for purchases,identificationof viewer
preferences,communicationof medicalrecords,and countless ways in which
computerizedidentificationis coupledwith personalpreferencesand behavior.
Americanshave very little comprehensionof or agreementaboutwhatprivacy
entails, but 84% are concerned about it, and 78% feel that they have lost
control over personal informationabout themselves.'5The confusion about
privacy indicatedby these statisticsis compoundedin the Networld.
13. See Miami HeraldPublishingCo. v. Tornillo,418 U.S. 241 (1974) (holdingthatstateright-of-reply

statute granting candidate newspaper space to answer criticism published in newspaper violates First
Amendmentguaranteeof free press).
14. Clearly, governmentalinterests would be adversely affected if birth and death records, motor
vehicle registrations,voting identification,and propertyownershiprecords were not available for public
processing and recordation.
15. Alan F. Westin, Remarksat Managingthe Privacy Revolution:The First Annual Conferenceon
American Business and Privacy (Oct. 4-5, 1994) (discussing results of LOUIS HARRIS& Assocs., INC.,
INTERACTIVE SERVICES,CONSUMERS,AND PRIVACY:A NATIONALSURVEY(1994)).
C. Accountability
Accountabilityrefersto the acceptanceof responsibilityfor one's actions.

Without accountability,there is no basis upon which an injured party can
initiatea tort actionto redressgrievances.Technically,the law would hold the
initiatorof a defamatorymessageaccountablefor any deleteriousconsequences
associated with it. If one cannot hold the poster of an abusive message
responsible, because it is anonymous or the poster is judgment-proof,the
defendantmust be the providerof the electronicspace containingthe message.
Potentiallitigantsand theirlegal counsel have not hesitatedto seek the source
of the deepest pockets.'6
The complexity of the relationshipsbetween anonymity,autonomy,and
accountabilityis most apparentwhen attentionis focused upon accountability.
For example, anonymity or pseudonymity on the electronic highways is
rampantand seems to stripusers of the civility thatthe face-to-faceencounter
has engenderedin most modem societies.'7It also facilitatesthe distribution
of false informationthat may have detrimentalconsequences.' Althoughthe
users of anonymousmessages seem adamantin claiming an absoluteright to
their anonymity,'9this anonymity prevents the legal system from holding
them accountablefor abuses of the privilege.
This lack of accountabilitythrows the legal responsibilityback upon the
providersof the cyberspacesand transformsthem into censors, a role none of
them wishes to play. Being requiredto monitorall digital traffic would place
an undue burdenupon these informationproviders,all of which are still in
their infancy. This would be especially true for the smaller bulletin board
operators(sysops), who are, for the most part,judgment-proof.Thereis as yet
no consensus regarding where to place the burden for behavior that
contraveneswell-establishedlegal restrictions.
16. One difficulty is that many of the abusers have been young users just learning their computer
skills, who have little or no financialcapabilityto pay damagesimposed by a legal judgment.
17. See Lee Sproull & Sara Kiesler, Computers,Networks, and Work, in SOCIALISSUESIN
COMPUnING:PUTnNG COMPUTING IN ITS PLACE 335, 338-39 (ChuckHuff & ThomasFinholteds., 1994).
18. Marian Burros, Eating Well, N.Y. TIMS, Feb. 1, 1995, at C3 (discussing potential problems
created by false and misleading electronicinformationregardinghealth and nutrition).
19. Walter S. Mossberg, Accountability Key to Democracy in On-line World, PLAIN DEALER
(Cleveland), Feb. 5, 1995, at 4G.
Anonymity is a cherished traditionamong some on-line veterans,who enjoy the fantasy aspect of
these communities and argue that it enables shy or socially outcast people to finally blossom via
modem. . . . It sure makes it easier to spread wild conspiracy theories, smear people, conduct
financial scams or victimize others sexually.
Id.
D. Is Therea Place for the First Amendmentin Cyberspaces?
The three issues I have chosen to explore, the assertionof a right to true
anonymity,claims to autonomyover the informationtransmittedonline, and
questions of accountabilityfor misuse or abuse of the informationresources,
are traditionalsourcesof controversyin FirstAmendmenthistory.Such issues
are continually implicatedin the debates and conflicts arising out of online
activity.The currentFirstAmendment-typecontroversiesarisingin both actual
encountersin cyberspaces and hypotheticaldiscussions are useful tools for
exploringwhatmayoccuras computer-mediated communicationbecomesmore
widely available throughoutthe world. The Internet, as well as publicly
availableinformationserviceproviderssuchas CompuServe,Prodigy,America
Online, GEnie, Delphi, ImagiNation,andthe WELL,presentprototypesof the
kinds of informationmarketplacesthat are possible and also demonstratethe
kinds of abuses and dilemmasthatcan occur and challengeFirstAmendment
principles.
While exploringthe capabilitiesof interactivecomputer-mediated dialogue
and the First Amendmentconflicts arising as by-productsof such communi-
cation, it must be understoodthatthe FirstAmendmentis a local ordinance.20
Many, indeed, most other countries, do not have the equivalent of a
constitutionalprohibitionagainstinterferencewith freedomof speech.Still, the
right to freedom of speech remainsa sacredtraditionin United States media
law and has correlativerightsin the laws of otherWesterncultures,the United
Nations UniversalDeclarationof HumanRights,21 as well as seeds that have
been sown in the constitutions of other countries. The inhabitants of
cyberspacesoften treatthe FirstAmendmentas a given statementof protection
in their world, which insulatesthem not just from interferencefrom the U.S.
governmentbut from all intrusionsor confrontationswith the real world.
In the pioneeringdays of what has become the Internet,users and their
usages were largely ignored. The cyberspaces were used primarily for
professional and academic purposes, subject only to the "acceptableuse
policy" (AUP) mandatingthat the networkservices be used for the research
community and its scientific goals.22Some commercialinformationservice
providerswrite contractsdescribingtheirexpectationsof appropriatebehavior
and reservingthe rightto withdrawservices from those who do not comply.23
As more and more computerusers arrivein these cyberspaces,they bring
expectationsthatthe legal normsof the real worldwill apply.Lawyers,judges,
and juries, often without any genuine understandingof or experience with
20. See ELECTRONICFRONTIERFOUND., EFF'S GUIDETO THEINTERNET? 4.6 (version 2.2 1994).
21. G.A. Res. 217A, U.N. Doc. A/810, at 74-75 (1948).
22. See infra note 65.
23. See, e.g., America Online Termsof Service (TOS) ? 4.2, available online at America Online,
Members' Online SupportArea, MemberServices.
electronic networks, are asked to prosecute,defend, or decide controversies

arising within the cybercommunities. Thus, more and more often,
confrontationsare arisingbetweenthe legal expectationsof the real world and
the developing "netiquette"24 of the "netizens" of cyberspaces. Whether
"netizens"may assert a cyberjurisdictionto govern their electronicbehavior,
a jurisdictionthat is separatefrom andperhapsindependentof the legal norms
of the real world, is questionable. Without such grants of jurisdictional
authority,however,transferringlegal normsfrom the real world may resultin
the applicationof rigid rules inappropriateto the cybercommunitiesand may
jeopardizethe full developmentof the informationagora that the technology
promises.
II. AREASOF CONFRONTATION
In orderto explore these First Amendmentissues, I turn to a discussion

of some actualconfrontationsthathave arisenin cyberspacesin recentmonths.
In some of the cases, traditionalsolutionsto FirstAmendmentproblemshave
been efficacious in solving problems in the Networld; in others, quite
troublesome. The critical question is whether "new wine can be poured
successfully into an old bottle,"25or whether new legal norms must be
devised for the governanceof the Networld. For the purposes of analysis, I
divide the cases into severalcategories:those in which existing laws have been
applied somewhat successfully to the cyberspaces,those in which "netizens"
have taken governanceinto their own hands and devised their own means of
dealing with what they perceiveto be abuses,those in which cybercitizensare
24. RHEINGOLD,supra note 8, at 64.

Right now, all we have on the Net is folklore, like the Netiquettethat old-timerstry to teach
the flood of new arrivals, and debates about freedom of expression versus nurturanceof
community. About two dozen social scientists, working for several years, might produce
conclusions that would help informthese debates and furnisha basis of validatedobservation
for all the theories flying around.A science of Net behavioris not going to reshapethe way
people behave online, but knowledgeof the dynamicsof how people do behave is an important
social feedback loop to install if the Net is to be self-governingat any scale.
Id.
25. United States v. LaMacchia, No. 94-10092, 1994 U.S. Dist. LEXIS 18602, at *1 (D. Mass.
Dec. 28, 1994). Judge RichardG. Stearnsraisedthis questionin dismissing the indictmentfor wire fraud
againstDavid LaMacchia,the MIT studentwho providedan electronicbulletinboardinto which an alleged
million dollars' worth of copyrightedsoftware was uploadedand downloaded,not by LaMacchia,but by
users of his bulletin board. Judge Stearns recognized that what LaMacchiadid was reprehensibleand
"heedlesslyirresponsible,"and that it possibly infringedcivil copyrightlaws, but concludedthat applying
the wire fraudlaw to criminalizehis behaviorwouldjeopardizethe activities of millions of computerusers
who may, quite innocently,downloadsoftwarefor legitimatepurposes.Id. at *33, *36. Thus, determination
of criminalliability should be left to Congress,ratherthanto judges applyinglaws designedfor a different
technology and a differenttime in history.Id. at *36; see also Peter H. Lewis, ComputerUse Indictment
Is Thrown Out, N.Y. TIMES,Dec. 30, 1994, at A17; Peter H. Lewis, Judge Rejects Computer-Crime
Indictment,N.Y. TIMES,Dec. 31, 1994, ? 1, at 10; Mitchell Zuckoff, SoftwarePiracy ChargesAgainst
StudentDismissed, BOSTON GLOBE,Dec. 30, 1994, at 1.
at odds with the legalities of the local jurisdiction,and those for which no
legally enforceablestandardof care yet exists.
A. Transferof ExistingRules of the Real Communityinto the

Cybercommunity
The firstcase I will exploreis one in which existing law was appliedquite
effectively to a controversyarisingonline. Moreover,the solutionmet with the
satisfactionof the defendantcommercialinformationprovider.Significantly,
this case involved an archetypal First Amendment conflict: a claim of
defamation.The new and challengingtwist was that the alleged defamatory
materialappearedin an online bulletinboardratherthanin a newspaperor on
a public broadcast.Despite the new form of media,the fundamentalquestions
did not change. The court could rely on existing defamation cases as it
attemptedto apply the legal standardsto the facts at issue. Indeed, the very
nature of this controversymay have made it ripe for easy importationof
existing legal norms, unlike some of the othercontroversiesthat involve fact
patternsunique to the new media.
Few cases have been definitivein determiningto what extent commercial
information providers and sysops must monitor, or are prohibited from
monitoring, electronic traffic. If the traffic constitutes public e-mail, the
Electronic CommunicationsPrivacy Act (ECPA)26would forbid monitoring.
If the provideris consideredto be the publisher,however,it would be held to
standardsof editorial control and would be accountable in law to those
defamed within its services.
In 1991, activity on the CompuServe system generated a case with
significant implications for these issues, Cubby,Inc. v. CompuServeInc.27
The plaintiff sued CompuServe for defamation because of objectionable
materialposted withinan electronicsegmentcalled RumorvilleUSA. This was
one componentof the JournalismForum,a daily newsletteroperatedby Don
Fitzpatrick Associates of San Francisco.28CompuServe claimed to have
neitherknowledge of the alleged defamatorymaterialnor the opportunityto
exert control over it. Furthermore,Don FitzpatrickAssociates had signed a
contractwith CompuServewherebythe former"accept[ed]total responsibility
for the contents" of material that it edited.29As a consequence, Don
FitzpatrickAssociatesconstituteda responsiblepartythatcould have been held
liable by the alleged defamedparty,but the litigantchose CompuServe,which
was more likely to be financiallysolvent.
26. 18 U.S.C. ?? 2701-2702 (1988).

27. Cubby,Inc. v. CompuServeInc., 776 F. Supp. 135 (S.D.N.Y. 1991).
28. Id. at 137.
29. Id.
The court found that CompuServewas only a distributorof Rumorville

USA, and, as such, was not requiredto be aware of everythingcontainedin
its electronic memory.30The court was quite explicit in its absolution of
CompuServe:
CompuServehas no more editorialcontrol over such a publication

than does a public library,book store, or newsstand,and it would be
no more feasible for CompuServeto examine every publicationit
carriesfor potentiallydefamatorystatementsthanit would be for any
other distributorto do so....
Technology is rapidlytransformingthe informationindustry.A
computerized database is the functional equivalent of a more
traditionalnews vendor, and the inconsistentapplicationof a lower
standard of liability to an electronic news distributor such as
CompuServe, than that which is applied to a public library,book
store, or newsstandwould impose an undueburdenon the free flow
of information.3'
Although the decision was welcomed by sysops and commercial

informationprovidersalike, it shouldnot be acceptedas the final word on the
subject.Not only was this a districtcourtcase, but it involved an information
providerthathadundertakenfull responsibilitypursuantto its contractwith the
managerof the particularcyberspaceservice.This is quite differentfrom other
information providers who may, like America Online, have partnership
agreementswith their providersor who may, like Prodigy,adopt the role of
publisherand assume responsibilityfor monitoringsome of the forums. Nor
does the case begin to addressthe volatile and diverse universe of bulletin
boardsysops, rangingfrom small-timepersonaloperatorsthat look more like
personal mailboxes to very large commercialoperationsprovidingaccess to
whole archives of graphicimages.
The Cubby case merely holds that commercialproviderswho make no
effort to monitorcontent and serve primarilyas informationdistributorsmay
be relieved of liability for the content of messages within their systems. The
case offers no solace to the thousandsof individualbulletin board operators
nor to the volunteernewsgroupmoderatorson the Internet,who, because they
assume responsibilityfor screeningmessages, may be held legally responsible
to nonparticipatingusers allegedly defamed or damaged by electronic
conversationstaking place within the computer-mediated environment.
is
Cubby likely to be only the first foray into the deliberationnecessaryto
determinehow to assign liability and accountabilityfor message streamsthat
may differ markedly,even when providedby the same entity.Confrontations
betweenprovidersof these networkedworldsandthose who feel abusedby the
30. Id. at 140.

31. Id.
words passing through them in digital form are likely to be troubling and
expensive, unless alternatives can be devised to handle these situations
satisfactorily.32
B. UnsuccessfulTranslationof Real-WorldLegal Rules
A recentcontroversyregardingonline activitydemonstratesthe difficulties

confronting information providers as they attempt to accommodate their
electronicservicesto the expectationsof users.The incidentreveals some deep
misunderstandingsamong subscribersconcerning the differences between
public and private electronic spaces and highlightsthe inherentproblemsin
dealing with a highly differentiatedset of cyberspaces that range from
electronic mail to public forumsto electronicshoppingmalls.
Prodigy, as a joint venture between Sears and IBM, offers an
environmentallyneutralsafe haven for Middle Americanfamilies seeking an
electronichome as comfortableas Disneyland.33Prodigyhas been the subject
of numerous attacks on its policies by subscribers,34 but the one examined
here involved hate messages from a subscriberthat had been originally
transmittedto many subscriberswithin the protectede-mail service. One of
those most offendedby the message soughtto have it posted in a public space
so that other subscriberscould come to know both its subject and source.
Prodigy,by its own account,reviewedandrejectedthe recommendationto post
this message in public spaces fifteen times because posting it would be
disturbingto Prodigysubscribersand"'grosslyrepugnantto society's standards
of decency."'35These messages fell into the categoryof "'blatantexpressions
32. See, for example, the case recentlyfiled by an investmentfirm,StrattonOakmontof Lake Success,
New York,against Prodigyand subscriberDavid Lusby of Key West,Florida.The suit seeks $100 million
in actual damages and an additional$100 million in punitivedamages.PeterH. Lewis, Libel Suit Against
Prodigy TestsOn-LineSpeech Limits,N.Y. TIMES,Nov. 16, 1994, at DI. The offending message appeared
in the Money Talk discussion group, where a warningby Prodigy notifies the viewer that "Prodigydoes
not verify, endorse or otherwise vouch for the contentsof any note and cannot be held responsiblein any
way for informationcontainedin any such note."Id. at D2. Nonetheless,the message directlyaccused the
plaintiff firm of illegal activity in the context of its participationin an initial public offering, exclaiming:
"Thisis fraud,fraud,fraudand criminal!!!!!!!!"Id. The individualdefendant,a formeremployee of Prodigy,
had not used his accountfor "some time" and denies responsibilityfor the message. Id. Prodigy agreedin
courtto block messages concerningthe complainantfor threemonths,"to trackdown"the offendingparty,
and "to provide the court with a detailedexplanationof how messages to the system are posted, screened
and monitored."Id.
33. See W. John Moore, TamingCyberspace,NAT'L J., Mar. 28, 1992, at 745 ("Prodigyenvisions
itself as the Disneyland of bulletin boards,a family networkprovidinga variety of useful services, from
stock marketquotationsto sportsresults.");ProdigyDid Not Publish OffensiveMessage Cited by Media;
Affirms Standardsand Free Expressionon Bulletin Boards, PR Newswire, Oct. 23, 1991, available in
LEXIS, News Library,Prnews File [hereinafterProdigyDid Not Publish] (quotingProdigy PresidentTed
Papes remarkingon Prodigy's "role as a family service that reaches a very broad audience with diverse
viewpoints").
34. Several of these incidents are discussed extensively in ANNE W. BRANSCOMB,WHO OWNS
INFORMATION? FROM PRIVACYTO PUBLICACCESS98-103 (1994).
35. Prodigy Did Not Publish, supra note 33 (quoting Henry Heilbrunn,Senior Vice Presidentof
Prodigy).
of bigotry, racism and hate"' that would no longer be posted in public

spaces.36Prodigy managers were quite clear, however, that they did not
intendto become "thoughtpolice," and they permittedposting of some of the
less repugnantmessages.37
This incident came to the attention of the national media when the
Anti-DefamationLeague accused Prodigy of anti-Semitism,and the entire
episode created a great furorover appropriatebehaviorin the Networld.The
most offending message actuallyreceived a great deal more media attention
throughrepublicationthanit ever would have receivedhad the nationalmedia
not picked up the story.38
Prodigy claimed that it attemptsto ensurethat messages posted in public
spaces will not offend its subscribers.39Prodigy sources also claimed,
however, that monitoringe-mail was forbidden,40 althoughit was technically
possible, as it is for most message providers,to screen the message traffic.If
Prodigy is in the position of a publisher,in presentlegal terms, it was well
within its rights to assert editorialcontrol over whateverelectronic message
traffic appearedin public spaces. As a transmitterof electronicmail services,
however, it would be beholden to the legal restrictionthat such mail not be
monitored.Eventuallythe media attacksubsidedwith apologies on all sides
and a recognitionthat,at least undercurrentlaw, Prodigywas within its rights
in exercising editorial control over messages posted in public spaces while
attemptingto exert as light an editorialpencil as possible in the interestof
providingan open forum for the discussionof public issues.41
In this case, existing rules were eventuallyappliedto protectthe publisher
from legal liabilitybut not from public approbationfor what some considered
reprehensiblebehavior.There is, however, a difficulty in applying existing
legal metaphorsto a Networldin which an informationprovidermay logically
seem to fall under the ambit of several legal regimes. On some channels
offered by Prodigy,the informationprovideris acting in the normalmanner
36. Id. (quoting Ted Papes).

37. See John Buskin, WillFree SpeechByte the Dust?, NEWSDAY,Oct. 30, 1991, at 84 ("Prodigyalso
made it clear that it was not preparedto play bulletin-boardthoughtpolice.").
38. See JerryWalker,Swift PR Action Chills Anti-SemitismCharges,SPORTINGNEWS,Dec. 1991, at
36 ("At first, ADL's complaintgot limited pickup and for the most part, the reportswere neutral.But on
the morning of October 23, the situationchanged when New York Newsday, which has a large Jewish
readershipin the New YorkArea, publisheda page one story,headlined 'High-TechHate."'). The actual
messages read:"Hitlerhad some valid points too," "Removethe Jews and we will go a long ways toward
avoiding much trouble,""Pogroms,persecutionsand the mythicalholocaust.They only get what they so
very richly deserve." ComputerBulletin Board Under Fire for Allowing Anti-SemiticMessages, Agence
FrancePresse, Oct. 23, 1991, available in LEXIS,News Library,AFP File. Eventually,it was determined
that this text never appearedin a publicly available electronic space on the Prodigy network but was
transmittedin the privatee-mail.
39. See, e.g., Prodigy Did Not Publish, supra note 33.
40. George Perry,GeneralCounsel for Prodigy,Remarksat the Forumon Rights and Responsibilities
of Participantsin NetworkedCommunities,in Washington,D.C. (Feb. 19, 1993).
41. See Walker,supra note 38, at 36 (reprintingProdigy public relations staffer's chronology of
reactionsto the incident).
of a publisherediting content;in othersit is deliveringe-mail and acting as a

carrierlegally forbiddento monitorcontent;in others it is offering a public
forum for the discussion of public issues; and in still others it is acting as a
distributorthat would not be requiredto monitorcontent.42Thus, Prodigyand
its counterpartsrepresent a truly unique type of informationutility.43To
impose existing legal metaphorson commercialinformationproviderswould
be unwise withoutdifferentiatingthe ways in which these providersrepresent
different modes of informationtransport,not all of which have real-world
counterparts.In a digital data stream it is not easy to tell the difference
between what, in former times, might have been a newspaper,or a cable
television system, or a broadcaster,or a commoncarrier-each of which would
have been entitled to its own legal regime and practicingbar.Nonetheless, it
would be unwise to impose a genericlegal regime clusteringall of these legal
metaphorsinto a single new legal metaphorpurportingto serve as an overall
umbrellafor the Networld.
C. ImposingLocal CommunityRules on an UnyieldingCybercommunity
Unfortunately,as real-worldcases arise with greaterfrequency,efforts to

impose existing statutorylaws and administrativeregulationson these new
cyberspaces and cybercommunitieshave become more common and more
troublesome.The first case raises the issue of whose communityrules should
govern a cyberspacecontroversy,those of the existing geopoliticaljurisdiction
or those of the cybercommunity.In the area of pornography,the Amateur
Action case" has provokedconsternationand concern among both network
users and informationproviders.The AmateurAction BBS was a subscription
bulletinboardwhereusers,consentingadultswithinan electronicallymediated
environment,could access pornographicmaterials.The images held to be
obscene were uploaded in California and were downloaded in Memphis,
Tennessee, deep within the Bible Belt where such pictures were considered
objectionableand unacceptableunder local community standards,the legal
criterionon which obscenity determinationsare based.
The attorneyfor the defendants,who operatedthe bulletinboard,claimed
that the trial was specificallyinitiatedin Memphisratherthan in Californiain
order to take advantageof the more conservativeclimate prevailing in that
42. See Smith v. California,361 U.S. 147 (1959) (finding that bookseller could not reasonablybe
expected to monitor content of all news vehicles it offered for sale and that to impose such requirement
would restrictfree circulationin informationmarketplace).
43. These informationservices would prefer not to use "utility"as a legal term of art because it
suggests thatthey must offer their services to anyone.Most have long and comprehensiveservice contracts
that specify what subscribersare to expect from them and what they expect of their subscribers.Thus, the
relationshipis construedas a license to use ratherthan an opportunityto purchasea commodity.
44. United States v. Thomas, CR-94-20019-G(W.D. Tenn.Dec. 13, 1994) (conviction and forfeiture
order),appeals docketed,No. 94-6648 and No. 94-6649 (6th Cir. Dec. 21, 1994).
community.45Indeed, it appearsthat the persondownloadingthe images was

recruitedby the prosecutionfor the purposeof establishingthe offense.46The
case raises the importantissue of which local community'sstandardsshould
apply-that of the uploadingprovider,that of the downloadinguser, or the
communitystandardsmaintainedby and within the virtualcommunityon the
electronicnetwork.This case is currentlyon appealto the Sixth CircuitCourt
of Appeals and may eventuallyreachthe SupremeCourt.If the Courtdoes not
consider this particularcase, one similar to it will likely arise in the near
future.47Otherwise,Congresswill have to determinewhetherthe presentrule
shouldbe maintainedor whetherone moreappropriatefor computer-mediated
communicationsshould apply.
Clearly,if thereexists a genuineimpactoutsidethe electroniccommunity
with detrimentalconsequences within the local community,as when local
childrenare used as models in online pornography,geographicaljurisdictional
rules should apply.48Indeed,if an informationproviderpermitslocal children
to access the locally offendingpicturesby negligentlyfailing to verify thatthe
users are "consentingadults,"local jurisdictionalrules might also apply.If the
photographsare circulatedonly electronicallywithin a group of consenting
45. Porn Trial, COM.APPEAL(Memphis),July 19, 1994, at 6A.

46. Id.
47. The Memphiscase may not be as clearon the issue of "localcommunitystandards"versus"virtual
communitystandards"as legal puristswould desire. Some materialwas sent via the mails in responseto
a requestfrom a local citizen, a postal inspector.Such cases often are decided upon the particularitiesof
the special circumstancesunder which they arise, sometimes clouding the policy issues upon which the
futureof the legal system rests.
48. The Jake Baker case presentsan example of online behaviorwith a significantimpact within the
local community.Jake Baker (nee AbrahamJacob Alkhabaz),a twenty-year-oldstudentat the University
of Michigan,was recentlyarrested,arraignedin U.S. DistrictCourt,and held withoutbail for transmitting
via the Internetwhat were alleged to be both obscene and physically threateningmessages in interstate
traffic in contraventionof 18 U.S.C. ? 875(c) (1988). See Peter Swanson,More Informationon the Jake
Baker Case, Feb. 16, 1995, available online at URL <http:/krusty.eecs.umich.edu/people/pjswan/Baker/
pete/pete2.16.html>. A lurid story describing rape, torture,and murder was posted by Baker in the
alt.sex.storiesUsenet newsgroupin early January.Accordingto regularson the Internet,such stories are
not uncommon,but the differentiatingfactorin this case was thatBakerused the real name of a classmate
as the name for the subjectin his story.The story was picked up by a sixteen-year-oldfemale in Moscow,
who told her father.Id. The fatherthen relatedthe story to an alumnusof the Universityof Michigan,who
alertedschool administrators.Id. The UniversityDepartmentof Public Safety obtaineda writtenwaiver of
rights to search Baker's residence and computer, and found e-mail messages between Baker and a
correspondentin Canada that revealed plans to carry out some of the fantasies in the real world and
indicatedthat the named female was readily availableto be kidnappedand "'knock[ed]. . . unconscious
and put ... into one of those portablelockers."' U.S. Attorney'sOffice, EasternDist. of Mich., Baker
Press Release, Feb. 9, 1995, available online at URL <http://www.mit.edu:8001/activities/safe/safe/case/
umich-baker-story/us-pres> (quoting Affidavit of Special Agent Greg Stejskal of the FBI). Prior to a
scheduled hearing on Baker's suspension from the University, he was arrestedby federal agents. Id.
According to these reports, however, there were only words exchanged within cyberspaces and no
threateningacts in physical spaces, so this may very well be a challenging case for First Amendment
scholars to analyze.
In another recent development, the FBI capturedKevin D. Mitnick, the original cyberpunkwho
earned his title by plaguing computersites aroundthe country for over a decade. See John Markoff,A
Most-WantedCyberthiefIs Caughtin His Own Web,N.Y. TIMEs, Feb. 16, 1995, at Al.
adults, however, libertarianphilosophy would maintainthat the rules of the

"virtualcommunity"should apply.
The second case also concerns the conflicting rights and authorityof
members of the cybercommunity and outsiders who exist in the real
geographicalcommunity.This case also representsa geographicaljurisdiction's
impositionof administrativerules that may infringethe rights of membersof
the cybercommunity.Moreover,the case has importantovertonesfor the real-
world retributionthat may accompanyonline behavior.
This case involved a male-onlybulletinboard,the SuperOak Leaf Online
(SOLO), operatedwithin the journalismdepartmentof the SantaRosa Junior
College in California.Roger Karraker,the faculty advisor of the college's
studentnewspaper,the OakLeaf, establishedthe bulletinboardin responseto
studentrequests.49The bulletinboard,which was availableto only ten males,
was intended to be operatedunder a pledge of confidentiality.50 One of the
male participantsbroke the pledge and informedtwo women of derogatory
remarksmade aboutthem on the board.Because no women were involved in
bulletinboardconversation,however,the women who were allegedlyharassed
were not participantson the board.In responseto the ensuing conflict, other
students,including membersof the newspaperstaff, came to Karraker'said
and purportedto "defendthe fundamentalright to freedomof expression."51
The legal tool employed to stop this allegedly offensive e-mail was
Title IX of the EducationalAmendments of 1972.52The Office of Civil
Rights of the Departmentof Educationdirectedthe college to "promulgate
guidelines of appropriateconductfor users"and to "notifythe users of their
right to be free from harassmenton the basis of race, color, nationalorigin or
disability and to be free from retaliationfor protestingsuch harassment."53
Accordingly, the Office directed Santa Rosa to amend its Administrative
ComputingProceduresto read:
The computing facilities at Santa Rosa Junior College are

provided for the use of Santa Rosa JuniorCollege students,faculty
and staff in supportof the programsof the College. All students,
faculty, and staff are responsible for seeing that these computing
facilities are used in an effective, efficient,ethical,non-discriminatory
and lawful manner.
49. Joanne Jacobs, "Hostile Environment":PC Rebels Ravaging Academia, PHOENIXGAZETITE,

Oct. 11, 1994, at B I 1; see also JohnSchwartz,Some On-LineGuidelinesAre Out of Line with Free Speech
Rights, WASH.POST,Oct. 3, 1994, at F25.
50. Big Sister Is Watching,SACRAMENTOBEE,Sept. 27, 1994, at B6 (op-ed).
51. Santa Rosa JuniorCollege Oak Leaf, News Release (May 4, 1993) [hereinafterNews Release], in
Mike Godwin, Speech Code Proposedin OnlineForumat JuniorCollege, Sept. 28, 1994, posted to listserv
<cyberia-l@birds.wm.edu>(on file with author).
52. 20 U.S.C. ? 1681 (1988).
53. Office of Civil Rights, Dep't of Educ.,ProposedRemedialAction Plan, Aratav. SantaRosa Junior
College, No. 09-93-2202, at 3, quoted in News Release, supra note 51.
All studentshave the rightto be free from any conductconnected

with the use of SRJCcomputingsystems which discriminatesagainst
any person on the basis of race, color, national origin, sex, or
disability.54
As a final footnote, Karrakerwas forced to take an administrativeleave as a

result of complaintsabout sex discriminationon the board.55
Is there any place in the Networldthat is private?One does not need to
be a sexist or a racistto wonderwhereone must go to bareone's soul to one's
friends. Ironically, women at Santa Rosa initially requested an all-female
bulletin board on which they could discuss subjects of interest without the
intrusionof males;the male bulletinboardwas subsequentlyestablishedso that
males could converse online in similarprivacy.56There are many other uses
for privatespaces on educationalnetworks,even networkssupportedby public
funds. Examples include the discussion of potentialappointees,promotions,
and student grades. It seems clear that separate cyberspaces should be
demarcatedfor public or private use and that the differences between them
must be recognized. Some physical spaces, includingdesignationsowned by
there should be
public entities, are recognizedas closed to public discourse;57
no constitutional barrier to providing private electronic spaces in which
confidentialexchanges may take place. On the otherhand, privatespaces are
sometimes held to have assumedthe role of the state by opening themselves
to public access and thus providing a public function.58In order to avoid
confusion, a cyberspaceneeds to be clear whetherit is a privateforum or a
public forum.59
These issues furtherraise the question whether service providersmust
monitore-mail to ensurethatthey are not breakingthe law by permittingusers
to deploy the system for nefariouspurposes.This presents the horns of an
almost insolvable dilemma. Should service providersbe held responsiblefor
what users do on the systems? Accordingto two recent intellectualproperty
cases, they should be.60 If so, a much more cautious management of
54. Id.
55. Schwartz,supra note 49, at F25.
56. Big Sister Is Watching,supra note 50.
57. See, e.g., Pacific Gas & Elec. Co. v. Public Utils. Comm'n,475 U.S. 1 (1986); PerryEduc. Ass'n
v. Perry Local Educators' Ass'n, 460 U.S. 37 (1983); Dallas County Hosp. Dist. v. Dallas Ass'n of
Community Orgs. for Reform Now, 459 U.S. 1052 (1982) (Rehnquist,J., dissenting from denial of
certiorari);United States Postal Serv. v. Council of GreenburghCivic Ass'ns, 453 U.S. 114 (1981); Greer
v. Spock, 424 U.S. 828 (1976); Lehman v. City of ShakerHeights, 418 U.S. 298 (1974); Adderley v.
Florida,385 U.S. 39 (1966).
58. See, e.g., Marsh v. Alabama,326 U.S. 501 (1946).
59. For a fuller discussion of the applicabilityof the public forumconcept to cyberspaces,see David
J. Goldstone, The Public ForumDoctrine in the Age of the InformationSuperhighway,46 HASTINGSL.J.
335 (1995).
60. See Sega Enters. Ltd. v. Maphia,30 U.S.P.Q.2d(BNA) 1921 (N.D. Cal. 1994) (finding operator
of bulletinboardliable when users downloadedplaintiff'sgame programs);Playboy Enters.,Inc. v. Frena,
839 F. Supp. 1552 (M.D. Fla. 1993) (finding operator of subscriptionbillboard liable for copyright
electronic speech of all kinds will ensue. To comply with federal legislation
prohibitingdiscrimination,institutionsmay findit necessaryto become snoops
and censors, therebyexposing themselvesto liabilityfor actingcontraryto the
ElectronicCommunicationsPrivacy Act, which prohibitssuch monitoringof
e-mail.61There is no consensusconcerningthe way to resolve such a conflict,
but outcriesagainst"thepoliticallycorrectfiringsquad"are becoming louder:
The [SantaRosa JuniorCollege incident]casts a pall over computer

communication,which is still in its infancy.
E-mail is fast replacingbackfences as the place to exchangeideas
and gossip. Its contentshouldbe treatedjust as tolerantlyas any other
speech, or we risk limiting a freedomwe cherish.
Colleges cannot censor every student'sE-mail. Nor should they
be expected to try.
Ourschools have no obligationto offerelectronicforumsfor chat.
But once offered, speech on these electronicgrapevinesshould be as
free as the words we speak.62
Both the Amateur Action and Santa Rosa Junior College incidents
illustrate the difficulty in applying real-world rules to cybercommunities
without considering whether the imposition creates a greater burden than
necessary, in the process impinging upon First Amendmentrights of free
speech and autonomy over one's conversationalenvironment.A possible
solution in the Amateur Action case would be to change the standards
governingobscenity from the "local community"to the "virtualcommunity."
The SantaRosa JuniorCollege incidentpresentsa more seriousconfrontation
between two conflicting principles:freedom from gender discriminationand
freedomfor privatespacesfromthe intrusionof stateauthorities.To follow the
reasoning of Rowan v. UnitedStates Post Office Department,63 where is the
castle that one can call home within the Networld?
D. Cyberjurisdictionand the Impositionof ElectronicRetribution
I turn now to a set of cases in which "netizens"have addressedaberrant

behavior in their own cybercommunities.Indeed, there is a rich experience
governingthe conditionsfor offeringa new newsgroup,includinga mechanism
for voting uponthe viabilityof such a groupanddeterminingwhetherit should
infringementbecause billboardused plaintiff's copyrightedphotographs).

61. 18 U.S.C. ?? 2701-2702 (1988).
62. LynnLudlow,Don't Gag E-mail; Colleges Shouldn'tCensorTheirStudents'ElectronicMessages,
S.F. EXAMINER,Sept. 29, 1994, at A-20.
63. 397 U.S. 728, 737 (1970) (upholdingstatutepermittingU.S. Post Office to bar future mailings
from sender) ("The ancient concept that 'a man's home is his castle' into which 'not even the king may
enter' has lost none of its vitality ....") (footnote omitted).
be moderated.M4 "Netizens" have also occasionally enforced their mores

against outsiders invading their cyberspaces in an "unacceptable"manner.
Three recent cases, each generatedby a very differentincident, illustratethe
potential for cyberjurisdictionsto develop highly effective legal norms to
enforce acceptablestandardsof conduct.
The firstcase involved advertisersseeking to impose theirmessages upon
newsgroupsin a mannerconsideredabhorrentby the recipients.Commercial
use was initially deemed unacceptableon the federallyfundedpredecessorto
the Internet.Overthe years,however,some advertisingon the networkbecame
tolerated.65Today businesses all over the countryare rushingto set up their
very own "home page"66on the WorldWide Web. Wiredmagazine has set
up an electronic version of its popularprintversion, inviting advertisersto be
innovative in how they presentedthemselves to what was perceived to be a
prickly audience of computer-literateusers wary of traditionalmethods of
advertising.67Today, commercial use of the Internet is beginning to
overshadowits academicand researchuses. Nevertheless,the traditionof the
"acceptableuse policy" remainsdeeply rooted on the Internet.
Two lawyers, LaurenceCanterand MarshaSiegel of Phoenix, who dared
to challenge this tradition, created a spate of resentment when they
"spammed"68thousands of Usenet conferences on the Internet with
advertisementsfor theirlegal services.Becausemanyuserssubscribeto several
of these conferences, what they experienced could aptly be described as
"openinga mailbox and finding thousandsof junk mail letters with postage
64. See, e.g., Ed Bailey, First Callfor Votes(Ist of 2), Oct. 12, 1993, posted to Usenet newsgroups
news.announce.newsgroups, news.groups,misc.legal,misc.legal.computing, misc.int-property, comp.patents,
alt.comp.acad-freedom.talk, and alt.privacy(calling for votes on proposal for new group to be entitled
"misc.legal.moderated").
65. Stephen Wolff, Director of Networkingfor the National Science Foundation,has explained that
even thoughthe "acceptableuse policy" may not be conduciveto profit-makingactivities on the NSFNET,
it was interpretedas prohibitingonly those servicesthatdid not enhancethe purposesof academicresearch
and productivity:"[T]he touchstoneis utility to the researchand education(R&E) community.It doesn't
matterif you chargefor your service:you're chargingnot for the NSF-fundedfacilities which are provided
to both you and your clientele, but ratherfor the value you have addedto those facilities." Quotedin Josh
Blackman,NetiquetteAdvertising,June26, 1994,posted to listserv<cyberia-l@birds.wm.edu> (on file with
author).In anotherposting, Blackmandiscusses appropriateplaces on the Internetfor advertisements,such
as "forsale" and "forrent"newsgroupsand travellists. Josh Blackman,Yes,but WhatAboutMaui?, July 2,
1994, posted to listserv <cyberia-l@birds.wm.edu>(on file with author). Blackman also warns against
sending an advertisementfor a condominiumto a brain-surgeonmailing list, since brain surgeons might
prefer to discuss attributesof brains ratherthan condos. Id. This seems to sort out the differentiationof
purposethattriggeredthe massive reactionto the Canterand Siegel advertisementsthatwere wildly posted
to every kind of newsgroupavailable.
66. Peter H. Lewis, CompaniesAre Rushing To Set Up Shop on Web,N.Y. TIMES, Nov. 2, 1994, at
DI.
67. Conversationwith Jane Metcalfe, President,WiredMagazine, at TechnicalSymposium at IBM,
in Poughkeepsie,N.Y. (Nov. 7, 1994).
68. The term "spamming"is meantto evoke the image of someone throwinga slice of Spam at a fan
and watchingthe pieces fly out in every direction.See PeterH. Lewis, Anarchy,a Threaton the Electronic
Frontier?, N.Y. TIMES, May 11, 1994, at DI, D7.
due."69Recipients were outraged.They sent irate e-mail messages posted to

the lawyers' mailbox and "electronicletter bombs" designed to destroy the
Canterand Siegel advertisements.70
EventuallyCanterand Siegel's networkproviderorderedthe pair off the
network.Canterand Siegel have threatenedto file suit based upon an alleged
First Amendment right of access. They have not yet filed suit, however,
because some law firms have refused to take their case" and because they
have found an alternativeoutletfor theirenergies.Althoughthey were reputed
to have garnered$100,000 in fees from new clients, Canterand Siegel have
found a more lucrativereturnin the informationmarketplaceby writinga book
on how to advertiseon the Internet.They have given up theirlegal practicefor
a consultingbusiness that advises clients aboutthis new and burgeoningarea
of commercialactivity on the Internet.72
Despite these new ventures,Canterand Siegel have not been content to
enjoy the benefits of what the netizens alleged to be their wrongdoing.On
February9, 1995, the duo struckagain.They dispatchedan electronicmessage
advertisinglegal services to clear credit recordsto over 10,000 newsgroups.
Subscribers logged on to their computers to find a message that read:
CREDITREPAIRBY LAWFIRM."Canter and Siegel also
"<ad>GUARANTEED
managedto put their message in the equivalentof the telephonic 911 call: a
channelreservedfor emergencymessagesconsideredimportantenoughfor all
newsgroupsto take notice. As if this interruptionwere not enough, the pair
surreptitiouslyappendeda signal that informednewsgroupsystems managers
that these messages had the approvalof managerswhose groupsrequiresuch
clearancebefore posting.73In the real world, this could be consideredforgery
of permission or breakingand entering.Moreover,the duo also posted the
advertisementsto mailings lists of the ElectronicFrontierFoundation,which
are normallyused to send foundationnews to journalistsand policymakers.74
In response to the first transgression,one user who called himself
Cancelmoose designed computer software to automatically cancel such
messages as Canterand Siegel posted.75His softwarewas not mobilized, but
many netizens sent out SOS messages urging him to deploy the
countermeasure.76The response of the suppliers of Canter and Siegel's
69. CyberspaceUpstartsProposeEtiquetteRulesfor Infobahn,ATLANTAJ. & CONST.,June 14, 1994,

at E3.
70. One irate protestercreateda "PhantomPhone Beeper which called 40 times every night, filling
the voice-mail system of the Canter & Siegel law office in Phoenix with electronic garbage."Peter H.
Lewis, Sneering at a VirtualLynchMob, N.Y TnMES,May 11, 1994, at D7.
71. Lawyers whom Canterand Siegel approachedinformedthe authorof this fact.
72. Laurie Flynn, "Spamming"on the Internet,N.Y TIMEs, Oct. 16, 1994, at F9.
73. MartynWilliams, SpammersStrikeAgain on Internet,NEWSBYTES,Feb. 9, 1995 (on file with
author).
74. Id.
75. Id.
76. Id.
Internetservice was swift and final, as they pulled the plug on the massive
mailing very shortly after it was detected.77Such retributionas Canterand
Siegel suffered,both the official acts of the service supplierand the vigilante
acts of the angrysubscribers,demonstratesthat"spamming"of advertisements
into Internetnewsgroups has become a problem of mammothproportions.
What is most interesting,however, is the potential for self-governanceand
self-policing in cyberspacesthat these events demonstrate.
Cybercommunitieshave also conductedonline discussionsof appropriate
behavior, and imposed sanctions on violators, in the controversy over
anonymous remailers. The fiercely held and opposing views regarding
anonymityon the Internetexpressedby this lengthy online debate have little
or no counterpartin the real world. Two anonymous remailers, Johan
Helsingius of Finlandand Karl Kleinpasteof the United States, have sparred
over the issue for many months.78The argumentcentered aroundcomputer
softwarethat Kleinpastewrote and sharedwith Helsingius.Helsingius began
to use the softwarein a mannerthatKleinpasteconsideredquite objectionable.
The argumentsbetweenthe two areenlighteningand,judgingfromthe number
of postings that were entered into the electronic dialogue, aroused broad
intereston the partof other users.79
The need for pseudonymousmessages originatedin some of the more
volatile discussion groupsin which contributorsdid not wish to be identified,
such as "alt.sex.bondage."80 The apparentneed for anonymity motivated
Kleinpasteto design an anonymousremailersystem in six hours and to offer
it to the "rec.nude"group, which declined his offer to serve their entire user
membership.81Undaunted, Kleinpaste deployed what he called a "fire
extinguisher"to quiet abusive users againstwhom complaintswere filed and
used it threetimes beforehe was so "overwhelmed"by abusersthathe decided
to shut down his system.82The serverwas not reestablisheduntil April 1993,
and then with a formidablelist of forbiddenuses.83
David Clunie also devised an innovative anonymous posting system
involving cryptographyand offered it in October 1992.84Complaintsfrom a
large U.S. site resultedin a warningto Clunieto shutdown his system or lose
77. Martyn Williams, Spammer Attorneys Get Disconnected from Internet, NEWSBYTEs NEWS
NETWORK,Feb. 16, 1995, available in LEXIS, News Library,CurnwsFile. The contractthat Canterand
Siegel had with their Internetsupplier,PerformanceSystems International,prohibitedmass postings such
as this, but their message was initiatedfrom anothersource, ConsumerCredit Advocates, with a return
addressfor the Canterand Siegel e-mail box. Id.
78. See L. Detweiler,Anonymityon the InternetFAQ,May 5, 1993, ? 2.4, available online at URL
<ftp:llrtfm.mit.edu:/pub/usenetlnews.answers/net-anonymity/partl>.
79. See id.
80. Id. ? 1.6.
81. Id. ? 2.1.
82. Id.
83. Id.
84. Id. ? 2.2.
his feed site.85The allegationwas that the anonymousserverwas dominating

limited availablebandwidthin the South Pacific and thus elevating expenses
beyond justifiable costs, a charge that Clunie denied.86Nonetheless, he
discontinuedoperations in January1993 but released his software into the
public domain, where it could be recoveredand used by others.87
Meanwhile, in November 1992, Helsingius offered his own anonymous
remailing site in Finlandbased upon code writtenby Kleinpaste.88Although
he intendedto limit his serviceto Scandinavia,he foundit temptingto respond
to internationalrequests for remailings spurredby "the lawsuit-intensive
climate in the U.S.," where anonymousretailers were having a hard time
surviving.89With a commitmentto providinganonymityto all Usenet groups,
Helsingius has met with strongoppositionfrom outragedmanagersas well as
from vocal users who view anonymityas a threatto accountabilityand civility
on the Internet.The strongestoppositioncame fromKleinpaste,who threatened
to organizea vigilante groupof iratenews operatorsand to "'armthe Usenet
Death Penalty"' to express objection to Helsingius' having introducedthe
anonymousremailingservicewithoutascertainingwhetherthe usercommunity
approved.90This device has not yet been deployed,but the Helsingius server
has crashedseveraltimes, at least once through"mailbombing" by anonymous
protesters.91
The argumentconcerningthe desirabilityof anonymousremailinghas not
been settled and continuesto occupy the time and attentionof large numbers
of net users. That there was a sizable demandfor such service is undeniable:
Helsingiuswas inundatedwith 13,000 registeredusers in his firstthreemonths
of operation.92Helsingius eventually shut down his service, bowing to
network intimidation,althoughat the time of shutdownhe was forwarding
3500 messages per day to 576 newsgroups.93 He also expressedgreatconcern
that "the strongest opposition to the service . . . came from network
Ironically, much of the opposition was expressed by
administrators."94
anonymousobjectorsin messages similarto the following:
I am drowningin a backlog of work, so I can't go into all the

details here, nor am I particularlyinterestedin enteringinto a long
debate-the bandwidthis too low and my time is too constrained.I
85. See id.

86. See id.
87. Id.
88. Id. ? 2.3.
89. Id. (quoting Helsingius).
90. Id. (quoting Kleinpaste).
91. Id.
92. Id.
93. Id.
94. Id.
do not believe we have the appropriatetechnology to make an

anonymousservice work on the net....
I am a firm believer in privacy,but that is not the same thing as
anonymity.Anonymitycan be used to violate another'sprivacy.For
instance, in recent years, I have had harassinganonymousnotes and
phone calls threateningXXX because of things I have said on the
net[.] I have seen neighborsand friends come undergreat suspicion
and hardshipbecause of anonymousnotes claiming they used drugs
or abused children. I have seen too many historical accounts of
witch-hunts,secret tribunals,and pogroms-all based on anonymous
accusations. I am in favor of defeating the reasons people need
anonymity,not giving the wrong-doersanothermechanismto use to
harassothers.
... You will not find the recipients of anonymous mail being the
supportersof such a proposal.If the only people who would support
the idea are those who might use it, is it proper?95
The debate continues concerning what level of anonymity should be

permittedin cyberspace, when, and under what circumstances.One might
proposethatthe internationalcommunityprohibitanonymousremailers.Some
more discerninganalysts of the cyberscenehave suggested that servers who
choose to providean anonymousserviceshouldbe held responsiblefor abusive
messages postedon the system,since the real abuserswould not be identifiable
except throughthe entrepreneurprovidingthis service.96Therefore,one might
distinguish between potentially hazardousmessage sources and other more
innocuous uses of anonymity, thereby enabling the law to insulate from
liabilitythe majorityof informationproviderswhile imposingliabilityon those
originatingthe abusive messages.
As the torturedhistory of anonymousremailersindicates,net users have
their own methodology for determining what is considered appropriate
behavior, and they tend to favor tolerance ratherthan strict accountability.
Furthermore,they often take enforcementof their standardsinto their own
hands and seem quite capable of doing so without the help or intrusionof
lawyers or judges from the real world.97
Finally,the thirdcase demonstratesthatcybercommunitiesat times resort
to the age-old remedy of excommunicationfor those who are simply unable
to conform their conduct to the minimumlevel of acceptability.Historically,
95. Id. (quoting posting of John Noring, systems operatorwho provided excerpts from e-mail of
anonymoususer).
96. Conversationwith David Johnson,Chairman,LEXIS Counsel Connect (Feb. 1995).
97. Geopolitical jurisdictions,however, are not standingaside in these matters.In February1995,
acting on a requestfrom INTERPOL,the Finnishpolice obtaineda searchwarrantand retrievedthe name
of a user of the Helsingius' serverwho allegedly had posted copyrightedmaterialpiratedfrom the Church
of Scientology. See Anon.penet.fiCompromised!,Feb. 18, 1995 (on file with author).While offering users
an opportunityto remove their names from his files, the anonymousadministratorsought supportfrom his
users to fight Finnish authorities.Id.
"shunning" or excommunication has been a very effective strategy for

curtailingthe speech or undesirableactivities of citizens who do not conform
to the culturalnorms of their community.Whethervirtual communities are
justified in excluding undesirableson the basis of their speech is a legitimate
question to be included in the assessment of the collision between the
deploymentof new media and the preservationof First Amendmentvalues.
Furthermore,if privatecyberspacesand privatelyowned informationservice
providersmay exclude whomeverthey like, arepublic institutionsobligatedto
providepublic forumsfor the discussionof issues that affect the body politic?
A case in point is the virtual rape on the LambdaMOO(MOO).98Mr.
Bungle (a pseudonym)committedsexuallyexplicit verbalrapeon a female in
a public space and was appropriatelychastisedfor his behavior.99 In actuality,
the Mr. Bungle personatook over the characterscreatedby otherparticipants
in the MOO and attributedto them sadisticfantasiesthathighly offendedthem
and others."? After much discussion and consternation, especially with
respect to what constituteda propertrial and due process, the Wizards (the
skilled computerliterati)in the MOO decidedthat therewas a consensusthat
Mr. Bungle should be "toaded"(in fairy-taleterms,turnedinto a frog).101As
many as fifty or so of the MOOersverballysecondedthe motionto "toad"Mr.
Bungle, with only a dozen or so hard-linersobjecting.102As a result of his
punishment,Mr. Bungle was banishedfrom the MOO into oblivion.103
What concernedthe membersof the LambdaMOOafterthe incidentwas
resolved was how to handle such aberrantbehaviorin the future. The first
question they faced was what constituteda community of citizens in the
98. The LambdaMOOwas a multiuserdimensionestablishedfor a group of professionalsadmitted

on the basis of their academic qualificationsand interestsin multimedia.Amy Bruckman,Presentationat
MIT CommunicationsForum on Democracy in Cyberspace,in Cambridge,Mass. (May 5, 1994). The
aberrantbehavior at issue in this controversyoffended the participantsnot only because of what they
considered to be obscene behavior but also because it fell beyond the scope of the intended use of the
medium.
99. See Julian Dibbell, A Rape in Cyberspace,VILLAGE VOICE,Dec. 21, 1993, at 36 (providing
detailed descriptionand analysis of this "MUD rape"and reactionsto it). Whatconcernedthe participants
in the MOO was that Mr. Bungle was able to take controlover the personaof the individualand describe
in salacious detail sexual behaviorthat was highly offensive to those who were subjectedto the textual
renditionof his sexual fantasies. See id. at 37-38.
100. A female participantfrom Haverford,Pennsylvania,whose account identifiedher characteras
"Starsinger,"was displayedon the computerscreensof all MOOersin words that read, "'As if against her
will, Starsingerjabs a steak knife up her ass, causing immensejoy. Youhear Mr. Bungle laughing evilly
in the distance."' Id. at 38. Another characteridentified as "legba" suffered a similar form of sexual
degradation.See id.
101. "Toading"normallyrefersto changingthe attributesof the characterselected by the participant
in the MOO into the attributesof an amphibian.Id. at 39. In this case, however, "the annihilationof the
character"was more permanent,erasing all of the attributesof the characterand deleting his account on
the MOO. Id.
102. Id.
103. Id. at 41. In fact, he went out and acquiredanotheraccount on the Internetand reenteredthe
LambdaMOOsome months later, with a new pseudonym,attributesof a modified persona, and a more
acceptablebehaviorpattern.Nonetheless,his behaviorwas similarenoughfor the othermembersto suspect
that Mr. Bungle was amongst them once again. Id. at 41-42.
cyberspaces.'04Moreover, they needed to determine how to empower

themselves to set standards of behavior within the community they
defined.105The experience of witnessing and rejecting the behavior of Mr.
Bungle precipitateda crisis in governancethatpromptedthe groupto consider
what kind of social organizationthey wished to live under in the future."0
Some users, parliamentarianinlegalist types,"arguedthatMr. Bungle should
not have been "toaded"because he had not brokenany preexistingrules but
also urged that a regimented system be inaugurated.Others argued that
behavioralstandardswere a matterof individualchoice, and that those who
objected to Mr. Bungle's behaviorshould merely close their eyes or "hit the
@gag command,"blocking all of the messages from Mr. Bungle from their
screens.107The latter alternative,however, merely eliminates the message
from the view of the offended but leaves the real individuals using the
"Starsinger"and"legba"identitiesunprotectedfromthe misrepresentation that
they were the sources of the reprehensiblelanguage.108
Amy Bruckman, a graduate student at MIT who is writing a Ph.D.
dissertationon electronic communication,has discussed the agonies of the
LambdaMOOparticipantsconcerningtheirdeliberationsaboutthe fate of Mr.
Bungle."09She said that she did not have as much time as many of the other
participantsto spendon the MOOdiscussingwhatto do aboutMr.Bungle, but
that she was not willing to waive her right to participatein the decisions to
those who did.110This reflectionon the process, in which the participantson
the MOO engaged themselves for many hours, raises some unanswered
questions about the viability of computer-mediatedcommunication as a
mediumfor a democraticprocess.Whatconstitutesa fair andequitableprocess
for determining who should be permitted to participate in electronic
discussions?How many participantscan participateeffectively in democratic
decisions? Is there a rational way to appoint representatives?Should we
assume that consensus will be reachedthroughmediationand that those who
care enough to participatewill do so while those who preferto lurkwill make
known their preferencesonly when they become riled up enough to express
them?
In the United States,unlike some othercountries,citizens are not required
to vote. Some politicalscientistsbelieve thatdemocraciesworkbest when only
those who care go to the polls. Thus, a democraticsystem may be sustained
104. Id. at 39.

105. Id.
106. Id.
107. Id.
108. Id.
109. See Bruckman,supra note 98; see also Dibbell, supra note 99, at 39-41. "[T]hequestionof what
to do aboutMr. Bungle began to shape itself into a sort of referendumon the political futureof the MOO."
Id. at 39.
110. Bruckman,supra note 98.
by those with sufficientmotivationto care aboutits future.Theresimply is not

yet sufficientexperiencein the Networldto come to any conclusionsaboutthe
viability of electronic democracy.Nonetheless, the Internetis a hotbed of
experimentationon how to achieve this end, peopledwith dedicatedcomputer-
competent users who believe that they have discovered a superiorway to
achieve consensual governanceof cybercommunitieswithout the aid of real
communities. Indeed, given the proprietarypropensitiesof those who use
computer-mediatedcommunicationregularly,they would be the most unlikely
candidates to relinquish control over their cyberspaces to an outside
geopoliticaljurisdiction.
E. A Case that Has No Cybersolutions
Thereare many troublesomecases arisingin cyberspacesthatmay require

innovativesolutions.These may challengethe buddingcyberlawyersto come
up with some new remedies,andnetizenswill likely mold theirown responses.
One such case involved the use of aliases and pseudonyms.This practiceis
quite common on manybulletinboards,anddespitethe often abusivebehavior
that these names facilitate,no real solution to this problemhas been found.
The "Strange Case of the Electronic Lover""' involved an alleged
female who suggested the establishmentof an all-female bulletin board on
CompuServe in which women could talk frankly with one another."2The
female who suggested the special interestgroup was allegedly confined to a
wheelchair."3She identifiedherself as Joan Sue Green and claimed she was
a New York neuropsychologistwho had been injured in an automobile
accidentcaused by a drunkdriver.114The women on the electronicdiscussion
confided their innermostsentimentsto her. Indeed,Joan discussed her sexual
inclinations quite openly and encouragedothers to do the same.11'"Joan"
also quite openly suggested that they meet a "friend"of hers, a psychiatrist
namedAlex.116As it turnedout, Alex, a prominentNew Yorkpsychiatrist,was
in reality the "Joan"of the discussion group.117 When the other participants
realized how they had been fooled by the psychiatrist,they felt violated and
betrayed.Nonetheless, they had to admit that "Joan"had been able to help
many of them sort out their problems.118
This case is only one of many that have heightenedconcern about the
threatof anonymousmessages,an aspectof computer-mediated communication
111. Lindsay Van Gelder, The Strange Case of the ElectronicLover, Ms., Oct. 1985, at 94.
112. Id. at 101.
113. Id. at 94.
114. Id.
115. Id. at 101, 103.
116. Id. at 103, 117.
117. Id. at 99.
118. Id. at 104-05.
that probablycan never be completely eliminated.Discouraginganonymity

would have the therapeutic effect of labeling anonymous messages as
undesirableand, perhaps,reprehensible.There are, however,appropriateuses
of anonymitythat should not be discouraged.The challenge is to distinguish
between the categories and draw the protective prohibitionas narrowlyas
possible. Certainlythe use of electronicchat channelsby pedophilesto solicit
the companionshipof young computerusers is one thatmost observerswould
abhor. This problem might be mitigated, however, by posting warnings to
childrento avoid real meetingswith theirvirtualfriendsuntil they have some
verification of their real identities and intentions, as well as vigorous
enforcementof real laws. Such solutionswould seem to providea betterway
of dealing with this problem than forbidding all uses of aliases and
pseudonymsin electronicplaygrounds.
The case of "Joan"has not precipitatedthe irate response from the
deceived parties on the CompuServenetworkthat one might have expected,
consideringthe ratherpromptresponsetaken by active participantson some
of the Internetnewsgroups.Perhapsthis is because the forum was inhabited
primarilyby females, purported,at least, to be more gentle in theirobjections
than their male counterparts.Perhapsit is because they all felt embarrassed,
or somehow to blame, for not recognizingthe imposterin theirmidst. Perhaps
they saw no way to impose effective sanctions. Or they may have merely
succumbedto the notion that pseudonymityis a fact of life in the Networld
and that users should therefore be careful to scrutinize the messages of
unidentifiablecorrespondents.
It is unlikely that the impostorwould have asserteda First Amendment
right to post the messages underan assumed name in this cybercommunity.
But the incident demonstratesthe need to determineat what points on the
continuum of anonymity censure will fall. It seems easier to evaluate
appropriateresponses to anonymity at the extremes. For example, some
anonymoususers may use their anonymityto be rude and impolite, but such
activity may not qualify for removalfrom the cybercommunity.Similarly,the
destructiveand potentially dangeroususes of anonymityalso are relatively
easily identified and sanctioned. The questions become more difficult as
anonymoususages approachthe center of the continuum,where anonymity
becomes a problem,butis not necessarilytotallyunacceptable.These questions
will challenge cybercommunitiesto devise rules and standardsto govern the
uses of anonymityin their electronicneighborhoods.
THEPOSSIBILITY
III. SELF-GOVERNANCE: OF CYBERJURISDICTION
Users of cyberspaces are exercising some autonomy over their

cybercommunities and beginning to apply their own customs and practices to
abusive or troublesome behavior.119 Moreover, several cyberconversations

have specificallyaddressedquestionsof cyberjurisdictionandthe development
of cyberlaws. During the Summerof 1993, ProfessorTrotterHardy, of the
Marshall-WytheSchool of Law at the College of William and Mary, began
one such conversationby asking whetherit would be possible to develop and
enforce a constitution for cyberspace.120Professor Hardy received some
severely criticalpostingsprotestingthe invasionof real-worldlegal metaphors
into these new cyberspace communities.121 Although some deplored the
thoughtof regulationrearingits ugly headin the Networld,especially since the
real world was experiencinga progressivetrendtowardderegulation,Hardy
viewed the proposalas a potentialmeansfor insulatingthe Networldfrom the
real world. He explained that a constitution could actually protect the
cyberspacesratherthanmakethemvulnerableto excessive externalregulation;
a constitutionmight proclaimthat "'No one can regulate anythinganybody
does on the nets."''122
In September 1993, Professor Hardy assembled a more selective
listserv23 group of approximatelytwenty lawyers to spend several weeks
online discussing the possibility of exercising independentjurisdictionover
cyberspacesthat might be immuneto territoriallaw.124 These pioneersagreed
to discuss some issues of real-lifeimportin the cyberspaces.Recognizingthat
potential intrusion by territorial jurisdictions is fast approaching, the
119. See, e.g., RHEINGOLD, supra note 8, at 64 (describinginformal community self-regulationas

"Netiquette").
120. Professor Hardy summarized many of the responses to his query in a posting entitled
Constitutions,Magna Cartas, More (on file with author) and the conference came to be known as
"Cyberia."
121. One such message read: "'Re A Constitutionfor Cyberspace.Eeeeeeeeekkkkkkkkk.You have
ruined an otherwise perfect, harmo[n]iousand anarchistday on the nets. Let['s] not do it and tell all the
authorit[ar]iantypes that we did, ok?"' See id. (quoting message as not atypical reaction to his query
regardingcyberspaceconstitution).
122. Id.
123. A listserv is an e-mail list of people assigned access to a particulardiscussion group. Some are
open, and anyone may subscribe. Others are closed, and would-be users must obtain permission to be
included. As this one was by invitation,it was not open or available to outsiders.Thus, the participants
were assumedto be computerliterateand at least sometimeusersof the Internetor othercommercialonline
services. The gateways enabled participantsto post from a number of sources, including Prodigy,
CompuServe,and America Online as well as direct accountson the Internet.The conferencewas entitled
the "NEWJURIS"conferenceand messages were dispatchedto <newjuris-l@birds.wm.edu>. Participants
included the following: Don Berman,JerryBerman,Anne Branscomb,John Dale, Mike Godwin, David
Johnson,Ethan Katsh, David Maher,Bill Marmon,Peter Martin,CharlesMerrill,Abdul Paliwala, Henry
Perritt,Ed Richards,Lance Rose, Marc Rotenberg,Pam Samuelson,Shari Steele, Cleve Thornton,Robin
Widdison, and Ian Wilson. Messages quoted from this electronic stream are not attributedto particular
parties because the participantsagreed that this conferencewould be confidentialso that memberscould
speak freely without concern about being quotedeither accuratelyor inaccuratelyin other environments.
124. See A NEWJURISDICTION FORCYBERSPACE? A TRANSCRIPT OFNEWJURIS,AN ELECTRONIC
CONFERENCE HELDSEPTEMBER-OCTOBER 1993 (TrotterHardy ed., 1994). Professor Hardy began the
conference with this introduction:"'The question at hand is whether cyberspace should form its own
jurisdiction. But before we try to come to an overall conclusion, we would do well to start thinking in
terms of pro's and con's. What would be good abouttreatingcyberspaceas a jurisdictionof its own? What
would be bad?"'Id. at 2.
participantsturnedto serious considerationof the issues that might present

differentproblemsin cyberspacesthanthey do in the real world, the questions
that are likely to find similarresolutionin both worlds, and possible means of
facilitating dispute resolution within cybercommunitieswithout resortingto
real-worldcourts for litigation. One participantnoted at the outset that the
netizens had already begun to develop self-governingjurisdictions, and he
cautioned that the laws to govern interactionsin the Networld should be
established by those who understand and participate in the electronic
world.125
Participantsin the NEWJURISconference discussed various procedural
elements of governance,such as whetherprovidersof cyberspacesshouldpost
their rules of behavior.126There was also debate and dialogue regardingwho
ultimatelyhad the power to make, amend,and adjudicatethe rules, and these
discussions in turn implicated questions of the potential for democratic
discoursebetween providersand users of the cyberspaces.127
Othersquestionedwhetherrules of geopoliticalspaces concerningequity
of access should apply to cybercommunitiesand whethercybercommunities
could waive external rules against sex, gender, or racial discrimination.128
Discussion also focused on the rightsof cybercommunitiesto expel members
who abused the privilege of participation.129Clearly,there was no consensus
aboutwhat the rules shouldbe in cyberspaces.Therewas agreement,however,
thatthese buddingcybercommunitiesshouldbe given a chanceto develop and
test their own rules before the externalauthoritiesexert too heavy a hand to
bring them into conformitywith real-worldrules.130
Therewas also consensusthatexisting legal constructions,such as the law
of associations,'31 or historical experiences such as the law of merchantof
the Middle Ages,132 or the experiences with customary internationallaw,
could apply comfortablyto cybercommunitiesseeking to establish a set of
cyberlaws that would not infringe upon the rights of citizens living outside
these communities.133
125. Id. at 2 (posting of Sept. 20, 1993).

126. See id. at 53 (TrotterHardy'ssummaryof issues discussed duringthe conference).
127. Id.
128. Id.
129. Id.
130. Id. at 48-49.
131. Id. at 51.
132. Id. at 23 (posting of author,Sept. 24, 1993).
133. In a conferenceon LEXISCounselConnectcalled The Law of the ElectronicRoad, this author's
partingposting was:
I have lurked here among you budding cyberlawyerswithout time to offer much comment.
Although I find many interestingviews, astute comments, and sage observationsabout what
might become the law of cyberspace,I find very little comprehensionor discussion of what is
actually happening in cyberspaces. There is much customary law developing among the
cyberresidentsin theirvariouscommunitieswithoutmuchhelp from the legal professionwhich
has not shown much evidence of interestor participationuntil recententryof commercial(read
"potentialclients") in these new electronicrealms. I suspect that we will see and are seeing a
Not everyone agreed, of course, and it is wise to rememberthat not all

cybercitizensare conformists.Indeed,the most vocal are often not. As one of
the participantswisely remindedhis more optimisticcolleagues:
There are always the hardcases, the ones who won't play ball unless
they see a baseball bat about to whack them in the head. While the
nice people are agreeing,those inclinedto disagreewill have free run
of the net. I doubt that unforced agreementis sufficient; rather,to
create workable net regimes, someone or some group will need to
wield the power necessaryto herd malcontentsinto line.134
Professor Hardy, in summary, recognized that "creating a law of

cyberspace is fraught with difficulty,"135but this did not deter him from
going forwardand sortingout many of the differencesbetween those areasin
which geopolitical jurisdiction seems to apply comfortably in
cybercommunities(such as defamation)136from those in which it does not
(such as imposing a publisher'sresponsibilityfor the content of many user-
originated messages).137 In general, however, Professor Hardy endorsed a
newly emerging"Lawin Cyberspace"coexistingwith statutorylaw governing
geopolitical spaces.138
Othermore open conferenceshave not reachedsuch benign conclusions;
some have recognizedthe emerginglaw while not calling it that.For example,
while recognizingthatsome law of the wild reigns,with each individualsysop
actingas the LordChancellorandHigh Executioner,some observershave also
noted that there are real, operativerules being promulgatedall the time in
cyberspacecommunities:
"Thereare alreadymany such constitutions.I have only begun to

cruise the MUDs (andMOOs,MUSEs,MUCKs,etc.). However,each
developing discipline of cyberlawyers... who are primarily applying existing law to

cyberspace controversiesand advising clients how the real world might restrictactivities in
cyberspace, as well as various dispute resolution techniques will be developed to handle
controversiesthat arise within cyberspacesthatdo not intrudeupon geopolitical structuresand
expectations.However, it would behoove all of us to take a more careful look at what actually
exists out there on the thousandsupon thousandsof BBS operatorsand within the newsgroups
and SIGs, etc. This is a seething morass of law in gestation that may come up with more
innovationssolutions and sanctionsthat we can think up in our more legally orientedminds.
Anne Wells Branscomb,Addendato Discipline, Dec. 8, 1994, posted to LEXIS Counsel Connect,Discuss
Menu, The Law of the ElectronicRoad Seminar(on file with author).
134. Lance Rose, Consensusor Force, May 18, 1994, available online at LEXIS Counsel Connect,
Discuss Menu, National and InternationalTopical Forum,Computers& Technology Law, Networks and
Online Services.
135. A NEWJURISDICTION FORCYBERSPACE?, supra note 124, at 54.
136. I. Trotter Hardy, The Proper Legal Regime for "Cyberspace",55 U. Prrr. L. REv. 993,
999-1000 (1994).
137. Id. at 1004-06.
138. Id. at 1021.
seems to have its own credos and rules. These laws are frequently
HEAVILY enforced.
... Finally, even mailing lists and news groups have some set of
laws (NO FLAMES,STICKTO THETOPIC,etc.). I'm not sure how one
would unify all such rules undera universalor meta set of rules."139
What is different about communication in cybercommunities from

communicationin geopoliticalcommunitiesis the opportunityfor an individual
to become a produceras well as a receiverof information.Mass media (such
as newspapers and broadcasters)permit single-source communication to
multiple receivers, while common carriers (such as postal, telegraphic,
telephonic, and facsimile messages) permit single-sourcecommunicationto
single or multiplereceivers.In contrast,computer-mediatedcommunicationis
a many-to-many system of distribution.'40This difference was expressed
quite eloquently by Mike Godwin, Legal Counsel for the ElectronicFrontier
Foundation:
What all these systems, from the smallest single-line BBS to the
Internet, have in common today is their reliance on text....
[C]omputerusers have grown more adept at effectively writing to
each other. The world of the networks is a true democracy:your
influence is measurednot by wealth or position, bu[t] by how well
you write and reason.
This relianceon the printedwordis, of course, somethingthatthe
computer-basedservices share with the traditionalprint media. But
they differ from print media-and broadcastmedia-in two very
importantways. First,the meansof communicationare cheapenough
for almost everyone to gain access . . . . [Second,] [c]omputer
information services . . . are "many-to-many" systems . . . . The
"filtering"function performedby newspapereditors is left to the
readers, who are also contributors.The very distinction between
readerand "reporter"is blurred.
This may sound like anarchy,but in practice it's more like a
town-hall meeting, albeit one in which everyone has a chance to
speak, no one is shouteddown, and people have time to develop and
explain their ideas.141
Godwin's model is treasuredby many of the "netizens"who share the

faith that the Networld in which they are creating their cybercommunities
offers a new opportunityto realize the democraticideals with which the
Founding Fathers established and created new communities on the North
139. Hardy, Constitutions,Magna Cartas, more, supra note 120 (quoting response to his initial
inquiry).
140. See NATIONALRESEARCHCOUNCILErAL., RIGHTSAND RESPONSIBILMESOF PARTICIPANTS
IN
NETWORKED COMMUNITIES 40 (DorothyE. Denning & HerbertS. Lin eds., 1994).
141. Mike Godwin, The First on a New Frontier,QUILL,Sept. 1991, at 18, 19.
Americancontinent.This is not an unrulymodel or electronicanarchybut one

of civil and thoughtfuldiscourseleading to consensualgovernance.The road
is rocky,however,andclashes will continueto plaguethe pioneersand settlers
as the abuses of cyberspacescome to be viewed as growth opportunitiesfor
litigantsand lawyers.As ProfessorHardyhas commented:"Thegolden age of
cyberspace is ending, but the golden age for lawyers is just dawning."142
In
contrastto Hardy'sprediction,BenjaminWittes, a lawyer who moderatesan
online forum for lawyers, observed that the role of the lawyers might have
been usurpedby the netizens of cyberspaces:
Suppose you wantedto witness the birthand developmentof 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 momentof the
process.
This hypothetical system might seem like a social scientist's
fantasy,but it actuallyexists. It's called the Internet.'43
IV. THREATSTO AN ONLINE AGORA: RETHINKINGSOME PRINCIPLESOF

FIRST AMENDMENTPRACTICE
Many users and proponentsof online computercommunicationtout its

capability as the best means by which to achieve the goals of a democratic
society. With the opportunityfor anyone with access to a computerconnected
to a modem and a telecommunicationssystem to reachanybodyor everybody
else so equipped at any time, anywhere, the many-to-many form of
communicationoutperformsall otherexisting media in its potentialutility for
electronic democracy. Far from the mass-media mode of newspapers and
broadcasting,with their limited interactiveresponses throughletters to the
editor and talk television, computer-mediatedcommunicationoffers open
access to uploading messages (speech) and open access to downloading
information (also speech). True, there may be a cost associated with this
capability,althoughit is essentiallyno differentfromthe price of newsprintor
television sets. Nonetheless,the politicalpot of gold at the end of the rainbow
seems reachablewithinthe foreseeablefuture,given a commitmentto universal
access at least through publicly available terminals and computer-assisted
142. Quoted in Tony Mauro,RidingHerd On-Line:Legal Notions Transformedby Digital Age, USA
TODAY,Nov. 15, 1994, at IA; see also MarkEckenwiler,CriminalLaw and the Internet,LEGALTIMES,
Jan. 23, 1995, at S32 ("If 1994 was the Year of the Internet,1995 promises to be the Year of Legal
Questions About the Internet.").
143. BenjaminWittes,Law in Cyberspace;Witnessingthe Birthof a Legal Systemon the Net, LEGAL
TIMES,Jan. 23, 1995, at S27.
education. This makes the Networld an attractiveconduit for democratic

discourse.
Indeed,the experiencesof Internet,Prodigy,CompuServe,AmericaOnline,
and the tens of thousands of sysops demonstratea remarkablydiverse
marketplaceof ideas bubbling up all over the globe. The Networld has an
abundanceof opportunitiesfor full and uninhibitedspeech. The difficultyhas
become one of offended partiesseeking to inhibitthe speech of the offending
posters of messages. As the offended turn to their lawyers to redress their
grievances, this uninhibitedcauldronof opinion becomes threatened.Should
strict liability for all electronic transmissionbecome the accepted norm,144
service providersmightscrambleto hide behindcontracts,waivers,monitoring
of all content,and censorshipof messages before posting. Such developments
would effectively exclude the majorityof the smallersysops who may operate
a boardmainly for theirown personalinterestsor as an appendageto a hobby
club or a small business.Liabilityinsurancewould be prohibitivelyexpensive,
the burdenof monitoringall messagesbeforepostingthemtoo demanding,and
the possibility of facing protractedlitigationtoo onerous.To foreclose in this
manner a most interesting experiment in democratic discourse would be
dishearteningand disillusioning.Is it not possible to find some other way of
moderatingabusesof computer-mediated communicationssystems?Following
are some suggestions for doing so.
A. A Right of Replyfor Defamation
A right of reply has been urged and rejected in the print media,145and
tried, approved,146 and then abandoned (at least partially)147 in the
broadcastingmedia. Nonetheless, there is a need to find some alternativeto
strict liability for providers of informationservices without imposing an
obligationto monitorall messagesin orderto avoid incurringproviderliability.
Thus, the returnto a right of reply, affirmedas constitutionallyacceptablein
Red Lion Broadcasting Co. v. FCC,148 seems eminently reasonable. The
generalcounsels of both ProdigyandAmericaOnlinehave explainedthatthey
see no otherviable alternativethanofferingdefamedpartiesan opportunityto
144. See, e.g., BRUCE LEHMAN, INTELLECTUAL PROPERTY AND THE NATIONAL INFORMATION
INFRASTRUCTURE: A PRELIMINARY DRAFT OF THE REPORT OF THE WORKING GROUP ON INTELLECTUAL
PROPERTY RIGHTS, INFORMATION INFRASTRUCTURE TASK FORCE 120-23 (1994) (discussing electronic
transmissions as means of infringing copyrights).
145. Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974).
146. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969).
147. Arkansas AFL-CIO v. FCC, 11 F.3d 1430 (8th Cir. 1993) (upholding personal attack portion of
fairness doctrine requiring television and radio broadcasters to provide right of reply); Syracuse Peace
Council v. FCC, 867 F.2d 654 (D.C. Cir. 1989) (rejecting management of "fairness doctrine").
148. 395 U.S. 367.
come online and defend themselves in the channel where the alleged
defamationhas taken place.149
To do otherwise would have a chilling effect on the medium, where the
very large amount of traffic makes it almost impossible for an information
providerto monitor.If the electronicmessagingservices arerequiredto accept
responsibility for all of their content-as are "publishers"in the print and
broadcastingworld-then a budding electronic democracy of free speech
operatingin an electronic "publicforum"may be lost. At the very least, it
should become possible for electronicinformationprovidersto declare some
cyberspacesto be "publicforums"where messages may be circulatedfreely.
Otherwisethe public forum,as modeledon the ancientagora,may be lost as
an uninhibited"marketplaceof ideas."150
B. Displacementof the Local Community'sStandardsby the

VirtualCommunity'sStandards
The Amateur Action case has highlighted the difficulty of applying

geographicallylocal communitystandardsto a computerbulletinboard.Such
pornographicimages as were involved in this case, coming as they do from
diverse locations all over the globe, create no hann to any local population
unless and until the local populationbecomes a partof the computer-mediated
traffic. Even then, unless one can arguethat exposureof adultsto the images
creates a clear and presentdangerto the local community,such as inciting to
rape or assault,the user createsno local disturbanceassumingthatthe images
merely are viewed and not downloaded,or once downloaded,not distributed.
Changingthe standardfromlocal to virtualcommunitywould seem reasonable
as long as the users of the networkedimages are a containeduser group of
consentingadultswho are screenedfor admissionto the circle of participants.
The Santa Rosa Junior College bulletin board case offers another
opportunityto review whetherthe standardsof the geopoliticaljurisdictionor
the standards of the cybercommunity should govern behavior in the
cybercommunity.This case raises substantialdoubt about the autonomy of
cybercommunitiesto patrol their own boundarieseven when the behavior
within the cybercommunitydoes not have a deleteriousimpactupon the real
world. Whetherthis case fits into this categoryis debatable,but at a minimum
149. Conversationwith George Perry, General Counsel, Prodigy, at the Workshopon Rights and
Responsibilities of Participantsin Networked Communities, in Washington,D.C. (Nov. 5-6, 1992);
Conversationwith Ellen Kirsh,GeneralCounsel,AmericaOnline, Inc., at NationalConferenceof Lawyers
and Scientists, Conferenceon Legal, Ethical, and TechnologicalAspects of ComputerUse and Abuse, in
Queenstown,Md. (Oct. 7-9, 1994).
150. For a fuller discussion of the problemsof the "publicforum"concept, see Goldstone,supra note
59.
it affords anothervehicle by which to explore issues of communitydefinition

and self-governance.
C. Defining InformationPrivacy as Sanctity,Autonomy,and Confidentiality
There is a great deal of confusion about what privacy means, what

informationcan be protectedfromdisclosure,andwhetherunwantedmessages
may be preventedfrom intrudinginto privatespaces. It is clear,however,that
there is growing public demandfor assurancesthat personalautonomyover
privateinformationwill be respectedand that personaltransmissionswill be
kept confidential.It is also apparentthatpublicexpectationsof some modicum
of sanctityof personalspace shouldbe guaranteed.Whatthis space constitutes
in a legal sense and how muchcontrolover it the individualmay exert has not
yet been determined.
First Amendmentscholarscould engage in a useful public service if they
would concentrateon defining these emerging legal boundariesratherthan
criticizing and rejecting the meager legal structuresthat currently exist.
Practicalsolutionswould be more speedilydevised if it were possible to focus
the argumentsaboutwhatconstitutesa sanctifiedpersonalspace aroundwhich
an individualmay draw an electronicboundary.Privacy scholarsshould also
be moreprecise in distinguishingtwo differenttypes of information-autonomy
problems.The first paradigmconcernsthose releases of informationthat are
deserving of some level of legally enforceable confidentiality.The second
categoryinvolves groupassertionsof autonomyto block outsideintrusionsinto
cyberspacesthat they wish to limit to certaintypes of informationtransfers.
The latter situationsbear some resemblanceto the zoning of real property.
Thus, "infozoning" may become a growth area of the law. A difficult
challenge, however, is to treat different cyberproblemsdifferently,without
seeking to find simple, universalsolutionsto all of the new questions.
D. First AmendmentRights of Associationand Access Online
The SOLO bulletin board incident at Santa Rosa Junior College has
precipitated a reappraisalof the responsibilities of network managers to
monitor and patrol the traffic within the computer-mediatedsetting. If the
provideris to be held accountablefor how an electronicspace is being used,
then there can be no such thing as a privateelectronic space, except within
private networks offered and funded by private entities (such as individual
bulletin boardproviders).Educationalinstitutionsdo not monitorthe speech
of their studentswithin their dormitoryrooms, dining halls, playing fields, or
locker rooms. Why should it be necessary to monitor electronic bulletin
boards?
Surelythereis a rationalefor protectingfreedomof associationand speech

in the sense of preventingfederallyfundedentitiesfrom interferingwith what
is spoken in an electronicspace. No one would condonederogatoryspeech by
males about females or vice versa, but the speech involved in the SOLO case
seems to fall in the category of good mannersand conduct expected of a
desirablememberof the collegiate communityratherthan an infringementof
federallyprotectedcivil rights.Gender-specific,national,racial, and religious
groups have legitimate reasons for desiring some autonomyover electronic
space in which to discuss group-specificissues.
E. Should CommercialMessages Be Permittedin E-mail Traffic?
The experiencewith the overabundanceof commercialmessages fromthe

Canterand Siegel firm in Phoenixhas highlightedthe difficultiesof assuming
that the practices acceptable in other media will transfer comfortably to
electronic media. With "junkmail," the currentexpectationis that it can be
tossed into the wastepaperbasket unopenedwithout cost to the recipient."5'
Only the poster of the paper message pays for delivery. In the context of
electronic mail, however, the recipient pays for the service in which the
message is posted and often not only is chargedfor the space but also has a
limited space in which to file incoming messages. Furthermore,it takes time
to download messages from the e-mail depository.Thus, if large numbersof
people followed the example of Canter and Siegel in "spamming"every
newsgroupin sight, the results would be intolerable.
Prohibitingthe posting of e-mail advertisementsinto newsgroups with
assigned topics under discussion would seem reasonable, because such
inundationis disruptive,intrusive,and surely an invasion of the sanctitythat
the SupremeCourtpurportedlyprotectedin Rowanv. UnitedStatesPost Office
Department.152 In actuality, however, the opportunityto place advertising
copy into the electronic space, much as advertisements are placed in
newspapers, exists on the Internet and may be facilitated by commercial
informationservice providers.Althoughthe eye may scan advertisementsin
the newspaper columns, there is neither compulsion to read nor any cost
associated with receiving such reading material,other than the cost of the
newspaper itself. Home pages on the World Wide Web or similar servers
would provide adequateaccess to electronicviewers who may at their option
choose to seek out the advertisementsand services of providerswith whom
151. This assumption is not entirely accurate since many communities charge for the pickup of
wastepaperand garbage,and some waste services chargeby the weight or numberof bags. The authorlives
in such a community. In addition, environmentalistsprotest the numberof trees cut down in a useless
deploymentof paperthat is unreadand wasted. See Jill Smolowe, Read This!!!!!!!!,TIME, Nov. 26, 1990,
at 62, 64.
152. 397 U.S. 728, 735-38 (1970).
they wish to deal. Consequently,prohibiting the delivery of commercial

messages to e-mail destinations would seem consistent with the First
Amendment'sgoal of encouraginga diversityof informationsources without
intrudinguponthe sanctityof personale-mailor autonomous-group
cyberspaces.
F. ShouldAnonymousMessages Be Discouraged?
Questions about the proprietyof anonymityin the cyberspacesmust be

evaluatedalong a continuum.Anonymityshouldnot be outlawedas a general
principle;there are varyinglevels of anonymity,or at least pseudonymity,that
are rationalandjustifiable.Permittinganonymityfor the purposeof removing
any vestige of accountabilityfor abusivebehavior,however,is not likely to be
toleratedin the Networld.Whetheror not anonymityis to be permittedor even
encouraged depends upon the particularcircumstancesunder which it is
deployed, but it must be understoodthat many netizens are unlikely to waive
their perceived right to personalautonomy,which some define as a right to
genuine anonymity.The introductionof a bill into the 104th Congress by
SenatorJim Exon (D-Neb.) to prohibitanonymousmessages "with the intent
to annoy, abuse, threaten, or harass any person . . . who receives the
communication' has prompteda spate of controversialdiscussions on the
Internet.
The anonymityquestion is furthermuddiedby a great deal of confusion
about what constitutes privacy in electronic communication.The agitation
regardingthe use of high levels of cryptographyto protect the "privacy"of
electronic messages should not be confused with the question of true
anonymityof message sources.The "prettygood privacy"softwarefavoredby
Internetusers, as well as the hostility to anonymity-strippingdevices such as
the ClipperChip andWireTap,are not directedat ensuringanonymity.Rather,
they reflect efforts to protectthe confidentialityof message content from the
intrusive eyes of outsiders and to protect the transmissionof a message
between consentingparties.
Presumably,commercialinformationvendorsand service providerswould
be free to set their own rules governingthe anonymousposting of messages,
definingthe appropriateuses of aliases and pseudonyms,and demarcatingthe
electronic channels in which such uses would be acceptable. Furthermore,
commercialservices, includingcommercialanonymousremailers,must know
who their customersare in orderto bill them or their legal representativesor
agents. Thus, the local or national laws of the host nation or state could
providemechanismsfor subpoenaingthe identitiesof customerswho abusethe
privileges of pseudonymityand contravenelocal law. A nation-statewould
have to cooperatein applyingits own laws, but some nationsmight refuse to
153. S. 314, 104th Cong., 1st Sess. ? 2(a)(1)(B) (1995).

do so, offering instead a national data haven to attract the business of

customersdesiringto keep all of theiractivitieson the global grid unidentified.
Even if anonymousremailersare toleratedbecause they provide a useful
service or are sufferedbecausethereis no meaningfulmechanismfor enforcing
a prohibitionagainst them, technologicalmeans for blocking messages from
such servers still exist.154Thus, recipientshave some freedom of choice to
refuse to accept such messages, as long as they can be identifiedas coming
from an anonymoussource thatcan be deflected.In the United States, no one
has the right to inflict materialupon an unwillingreceiver,and nothingin the
First Amendmentcontradictsthis basic protectionof the sanctityof personal
space.'55 Although the First Amendment protects individuals from
infringementof speech by the government,it neither guaranteesthat such
speech will be heard nor allows such speech to be delivered into a private
space. Instead,the FirstAmendment'spurposeis to providepublicforumsinto
which messages may be insertedwithoutcensorship.Nevertheless,this right
to speak in a public forum does not guaranteethe right to enter into space
providedby a "publisher"when thatpublisherretainsthe rightover entryinto
that space.156
Furthermore,electronic coding of messages that will permit freedom of
choice to deal with anonymousmessages or thatwill refuse to deal with them
should be devised. Guidelines should be refined so as to permit the use of
aliases andpseudonymsin electronicplaygroundsandto preservethe privilege
of posting anonymous messages when doing so serves some useful public
purposelike whistle-blowing.To preserveorderand civility, however,abusive
posters of anonymousmessages must not be permittedto insulatethemselves
from accountabilityfor their wrongdoing.
V. CONCLUSIONS
First Amendment lawyers should be wary of applying current legal

metaphorsto the newerelectroniccommunicationspaces withoutsubstantially
immersingthemselvesin the experienceof using such cyberspaces.Legislators
154. Network managers have devised "kill files" and "bozo filters" to screen out messages from
offending sources. Although individual users may need greater computer competence than most now
possess, systems could be designed to make these screeningdevices easy to deploy. Regulatoryagencies
or national legislation could requirethat electronic telecommunicationprovidersdesign their software to
facilitatesuch freedomof choice over unwantedmessages. See ELECTRONIC FRONTIERFOUND.,supra note
20, ? 4.2 (explaining how kill files work and how to employ them).
155. See Rowan, 397 U.S. at 735-38.
156. The United States may find itself in a dilemma if the common carrierconcept falls into disuse
and electronic transportprovidersare not requiredto accept messages (as telephone networksand postal
services are requiredto do today). If all electronictransportprovidersare also informationprovidersand
claim the censorship rights that have been grantedother mass media, then no guaranteedright of access
to the electronic media may exist. See, e.g., Nicholas Johnson,Jeffersonon the Internet,47 FED. COMM.
L.J. 281, 285 (1994).
should be equally cautious.'57It is tempting and easy to say that the First
Amendmentis an absolutethatrequiresa governmental"handsoff' policy for
all forms of communicationand that the scarcity doctrine was a terrible
mistake. As Judge David Bazelon, who presided over many appeals in
communicationcases, observed, we regulatebroadcastingnot because it is
scarce but because it is the most powerful form of communication and
methodologyfor manipulationof humanbehavioryet known to mankind.'58
There is no reasonto believe thatcomputer-mediated communicationwill
be any less powerful a medium for the manipulationof human behavior,
althoughit does seem to offer a proliferationof communicationchannelsthat
carry the hope of genuine diversity and both personaland group autonomy.
More choice and control in the hands of individualusers seem assured,and
lower transmissioncosts with faster delivery and greaterscope of coverage
seem reasonablyattainable.Nonetheless,if we comparethe "hype"with which
cable television was offered to the public in the early 1970's with the
duplicationof programmingsources and genres availableon this multiplicity
of channelstoday,thereis muchroomfor cynicism.Perhapsthe Networldwill
not be the salvationof democracyand will not bringon the millenniumfor the
First Amendment'spromiseof an uninhibited"marketplaceof ideas."
The flow of informationis not free financially,nor is it immuneto other
constraints. There are costs to building transmission systems, to buying
equipmentto access those systems, and to learning how to manipulatethe
software that makes it possible to engage in electronic discourse. There are
also costs to findingthe time to searchfor and downloadthe informationthat
is made available by sources preparedto underwritetheir own costs of
processing and uploading information.Not everyone will have the time,
money, equipment, or skills to engage in a worldwide dialogue on the
Networld of the future.
The media tend to spot and magnify the activities of miscreants,clowns,
and fools in cyberspacesbecause they make good readingand viewing. The
peccadilloes of the few, however, should not be permittedto override the
beneficialuses of these new computer-mediated communicationssystems.They
are only a small portionof what is actuallyhappening.Despite the problems
of access and abuse, a thoroughlook throughthe magnifyingglass will reveal
157. As one commentatorremarked:

[T]he Internetis ... a vehicle for mass social interactionwith its own well-developedculture.
Thus, to the extent that Congress attemptsto impose furthercontrols on the Net, such efforts
runcounterto the self-policingculturethathas emergedin manyquartersof cyberspace-it will
have to do so with a fuller understandingboth of the Internet'stechnical aspects and of its
culturalnorms.
Eckenwiler,supra note 142, at S32.
158. David L. Bazelon, FCC Regulation of the TelecommunicationsPress, 1975 DUKEL.J. 213,
220-23, 228. "[T]he problem is not scarcityof frequenciesbut ratherthe particularlypowerful natureof
TV communication."Id. at 228.
a seething hotbed of democraticdiscourse, public service data bases, and

volunteersspendinghoursat theirkeyboardsuploadingthe treasuresof world
literatureso that anyone across the global grid may access them. Volunteers
who compile the frequentlyaskedquestions(FAQs)are sharingtheirexpertise
willingly and without charge to help others become familiarwith these new
informationsuperhighways.Indeed,the principlesof the FirstAmendmentare
alive and well in many cybercommunitiesthroughoutthe Networld.
Generic principles applied uniformly will not suffice to govern the
informationsuperhighwaysof the future,for the latterwill be at least as rich
and vast a technologicallandscapeas the many media we see deployedtoday.
The current legal landscape is complex and diverse. The finely honed
principlesdevelopedto determinefairandequitablegovernanceof the different
technologies of communication, such as publishing, broadcasting,
telecommunications,and cable, will not witheraway with the mergingof the
media into a digital bitstream.Instead,these media themselves are evidence
that the law needs to be refined to ensure access and equity in varying
circumstances.The landlordsof cyberspaceswill be no more uniformly in
agreementthan the landlordsof real spaces.
Computer-mediated communicationis a diverse mix of electronicconfer-
ences, town meetings, bulletin boards, newsletters, radio talk shows, and
almost any other varietyof people-to-peoplecommunicationthat information
entrepreneursare likely to devise. Lawyers,litigants,legislators,judges, and
juries will continue to look for appropriatemetaphorsand apply them to the
cyberspaces-sometimes willy-nilly, sometimes more thoughtfully, and
sometimesnot at all. To the extentthatthey do so with an open mind and with
actualexposureto the electroniccommercethatthey are tryingto govern,the
outcome of their efforts will become more acceptableand desirable.
The traffic on this grid will be global, not merely national.Thus, the First
Amendmentwill be only one smallway of prohibitingheavy-handedregulation
by one national entity-the United States of America. Other nations may
follow our lead, but the inability to ensure that such will be the case is no
reason for reticence in putting forth our own views of how the
cybercommunitiesshouldbe governed.Currentusersof these spaces,however,
have some very strongopinions abouthow they wish to develop the "virtual
communities"they are building.They do not welcome intrudersunacquainted
with what they consider to be a promising frontier of new and exciting
opportunitiesto build more open and diverse discourseamong peoples of all
races,colors, genders,andpredilections.Cyberspacesarepopulatedby people-
to-people communication-including person-to-person,some-to-some, and
many-to-many.Computer-mediatedcommunicationoffers an environment
unlike any heretofore made available, with the potential for genuinely
interactive and cooperative innovation. To saddle such promise with an
overload of baggage from a bygone era would be tragic.
Lawyers and their clients must be cautiousin their approachto litigation.

Judges and juries must forbearin casting the net of existing laws too wide.
Legislatorsmustbe thoughtfulin theirapproachto rigidstatutoryrequirements.
If a rich diversity of informationresourcesis to be made available, and if a
flourishingcomputer-mediated informationmarketplaceis to be realized,users
must be willing to devote time and patienceto devise "netiquette"appropriate
for their varying circumstances.Many are already doing so. These new
cyberspacesoffer a preciouslaboratoryof law in gestation,developinglargely
without the aid of lawyers. As lawyers flock to their assistance, let us hope
they do so with humility and with the understandingthat the futureneed not
necessarilyfollow the path of the past.

Anonymity, Autonomy, and Accountability Challenges To The First Amendment Incyberspaces

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The Yale Law Journal Company, Inc.

Anonymity, Autonomy, and Accountability: Challenges to the First Amendment in

Anne Wells Branscombt

Principles underlyingthe First Amendmentfavor an informationagora'

t Research Associate, Project on Information Resources Policy, Harvard University

mediatedcommunicationsglobally,suggestthatwe now have withinour grasp

In this Essay, I examine some of the ways in which culturalbehavior

commercial providers of electronic environments must grapple with the

7. SarahKiesler, Professorof Sociology at CarnegieMellon University,Addressat the Workshopon

of grievances.Law enforcementofficials or lawyers seeking to file a civil suit

13. See Miami HeraldPublishingCo. v. Tornillo,418 U.S. 241 (1974) (holdingthatstateright-of-reply

Accountabilityrefersto the acceptanceof responsibilityfor one's actions.

D. Is Therea Place for the First Amendmentin Cyberspaces?

electronic networks, are asked to prosecute,defend, or decide controversies

II. AREASOF CONFRONTATION

In orderto explore these First Amendmentissues, I turn to a discussion

24. RHEINGOLD,supra note 8, at 64.

A. Transferof ExistingRules of the Real Communityinto the

26. 18 U.S.C. ?? 2701-2702 (1988).

The court found that CompuServewas only a distributorof Rumorville

CompuServehas no more editorialcontrol over such a publication

Although the decision was welcomed by sysops and commercial

30. Id. at 140.

B. UnsuccessfulTranslationof Real-WorldLegal Rules

A recentcontroversyregardingonline activitydemonstratesthe difficulties

of bigotry, racism and hate"' that would no longer be posted in public

36. Id. (quoting Ted Papes).

of a publisherediting content;in othersit is deliveringe-mail and acting as a

C. ImposingLocal CommunityRules on an UnyieldingCybercommunity

Unfortunately,as real-worldcases arise with greaterfrequency,efforts to

community.45Indeed, it appearsthat the persondownloadingthe images was

45. Porn Trial, COM.APPEAL(Memphis),July 19, 1994, at 6A.

adults, however, libertarianphilosophy would maintainthat the rules of the

The computing facilities at Santa Rosa Junior College are

49. Joanne Jacobs, "Hostile Environment":PC Rebels Ravaging Academia, PHOENIXGAZETITE,

All studentshave the rightto be free from any conductconnected

As a final footnote, Karrakerwas forced to take an administrativeleave as a

The [SantaRosa JuniorCollege incident]casts a pall over computer

D. Cyberjurisdictionand the Impositionof ElectronicRetribution

I turn now to a set of cases in which "netizens"have addressedaberrant

infringementbecause billboardused plaintiff's copyrightedphotographs).

be moderated.M4 "Netizens" have also occasionally enforced their mores

due."69Recipients were outraged.They sent irate e-mail messages posted to

69. CyberspaceUpstartsProposeEtiquetteRulesfor Infobahn,ATLANTAJ. & CONST.,June 14, 1994,

his feed site.85The allegationwas that the anonymousserverwas dominating

I am drowningin a backlog of work, so I can't go into all the

85. See id.

do not believe we have the appropriatetechnology to make an

The debate continues concerning what level of anonymity should be

"shunning" or excommunication has been a very effective strategy for

98. The LambdaMOOwas a multiuserdimensionestablishedfor a group of professionalsadmitted

cyberspaces.'04Moreover, they needed to determine how to empower

104. Id. at 39.

by those with sufficientmotivationto care aboutits future.Theresimply is not

E. A Case that Has No Cybersolutions

Thereare many troublesomecases arisingin cyberspacesthatmay require

that probablycan never be completely eliminated.Discouraginganonymity

Users of cyberspaces are exercising some autonomy over their

abusive or troublesome behavior.119 Moreover, several cyberconversations

119. See, e.g., RHEINGOLD, supra note 8, at 64 (describinginformal community self-regulationas

participantsturnedto serious considerationof the issues that might present

125. Id. at 2 (posting of Sept. 20, 1993).