David G. Post, co-director of the Cyberspace Law Institute, second from right, meets with students from the Cornell Daily Sun and the Cornell Law Review in the Statler Hotel on Sept. 16 before his Bailey Hall lecture. Adriana Rovers/University Photography
Calling the recent federal court decision striking down the Communications Decency Act a "Scopes trial for the electronic age," a Georgetown University cyberlaw expert urged Monday the creation of a new "Internet federalism" in which users form virtual communities that adopt their own rules of behavior.
David G. Post, co-founder and co-director of the Cyberspace Law Institute and visiting associate professor of law at Georgetown University, made his remarks in this year's Daniel W. Kops Freedom of the Press Fellowship Program, held in a crowded Goldwin Smith D Auditorium. The program was established in 1990 by Daniel W. Kops '39, former editor of the Cornell Daily Sun, and hosted by the College of Arts and Sciences in cooperation with the American Studies Program.
Since the Internet exists nowhere and everywhere, Post argued, the laws of individual countries not only do not apply to users, who can be physically located anywhere in the world, they cannot apply, since users can easily avoid one country's legal system by moving to another server within a different country's borders.
The current state of laws governing the Internet is "international chaos," Post said, adding that this is not a bad state of affairs.
The Internet calls for a far more radical rethinking of our basic rules of law and governance than even the federal court in Philadelphia expressed in striking down the Communications Decency Act, Post said, noting that world governments may be in the "twilight of sovereignty" now that the exchange of information can take place in a virtual realm where traditional legal systems are powerless.
A new governance model for cyberspace is within our reach, Post said, citing another recent case in the federal court of Philadelphia as one that has broad implications for how law and order will develop in cyberspace. A commercial entity named Cyber Promotions Inc. filed suit against America Online after AOL, in response to subscribers' complaints, set up a filter to keep Cyber Promotions' e-mail ads out of the AOL network. The federal court has issued a temporary order telling AOL to remove its blockage of Cyber Promotions' e-mail, a decision Post termed "stunningly wrong-headed."
"What AOL has done is precisely what Internet governance requires," Post said: It established rules of behavior based on the desires of its network membership. People who think it's a good rule can stay with the group; those who don't like it can subscribe to another Internet gateway. AOL's power to make rules is limited, since membership will shrink as restrictions become unpopular.
"Our mobility is a powerful guarantee that rules are just," Post said.
Post admitted that not all problems will be solved through his new model of Internet governance.
"The law of the Internet is the aggregate of choices made by individuals," he said, predicting the emergence of many network confederations, each with its own set of rules enforced by electronic fences between confederations.
"This decentralized mode of lawmaking has at its heart the sovereignty of the individual, which is the most solid basis for creating laws," Post said. "We don't need a new law of free speech. We need the freedom to make the law. We can build this idealized world, if we have the wisdom and fortitude to do so."