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Old laws in new venues?

Industry Canada has now published an exhaustive ( more than 300 pages) examination of Internet content-related liabilities. ( http://strategis.ic.gc.ca/cgi-bin/dec/wwwfetch?/sgml/it03118e_pr115.sgml ) Although this study takes into account the specific Canadian legal landscape it does explore, perhaps for the first time, a range of legal liability issues that are or may be, exacerbated by the Internet.

The basic conclusion of the report is, as its title puts it. "The cyberspace is not a 'no law land' ". If an activity is against the law in other venues, it is also against the law when the same activity is carried out using the Internet as a transport or communications service. This is a conclusion that has been noted before in this column ("Old wine in new bottles" nww, 1995) but bears repetition-- the Internet creates no immunity from the law.

This was one of the points argued by the plaintiffs in last year's challenge to the Communications Decency Act (CDA). Specifically it was argued that the CDA was not needed to "deal" with things like child pornography on the Internet because they were already illegal and transport via the Internet did not change the fact that they are illegal. ( I'm told that the government's appeal of the Philadelphia court's declaration that the CDA is unconstitutional "on its face" will have been heard by the US Supreme court by the time that this column is published. The result of this review will be of major importance to the future of legitimate communication via the Internet. )

While conveying no immunity, use of the Internet can easily create additional complexities in trying to understand how existing law does apply. For example, the individual who posts questionable material is not necessarily within the jurisdiction of the legal system that determines that there is a problem with the material. This is not a new problem but the Internet's aggressive non-recognition of political borders makes this complication more likely to be a factor. Also, as the report cautions, one must be "aware of the limitations of saying that the Internet 'is just like' something else. All such analogies are by their very nature limited and incomplete. While an analysis can begin with an analogy, it is both bad policy and bad law to fail to go further and note the areas in which the metaphor fails, is incomplete or is misleading."

The advent of the Internet has already inspired new legislation in many places around the world, some of it quite scary. There will be a continuing need to be vigilant to ensure that legislative bodies, which seem to be congenitally incapable of understanding the global nature of the beast or the powers and limitations of the technology, do not, in their zeal to put the Internet into its place, destroy the ability of the Internet to advance the commercial, political, educational, and social needs of those who would use it.

disclaimer: While there are a number of people at Harvard who think they know what they are talking about on this issue, I did not consult any of them- these are my own thoughts.