Cyberlaw I:  Speech and Privacy in Cyberspace

Course Description - Fall 2001

Broadly speaking, Cyberspace represents a conceptual distinction between activities that occur in the physical or real world and those that occur online or in virtual reality.  As a practical matter, both the increasing importance and the expanding utility of the Internet are rendering distinctions between real-space and Cyberspace less perceptible.  Even so, Cyberspace still presents a remarkable number of novel legal questions involving how computer users carry out various social, economic, and political transactions through the interconnection of computing and communications technologies. Today, lawyers are frequently challenged by legal problems having little relevant historical antecedent in our caselaw. Although the lack of reliable or pertinent precedent renders legal practice in this area difficult and, quite often, frustrating, the challenges are also exciting. In Cyberlaw, one cannot easily escape the feeling that despite the apparent absence of physical matter, Cyberspace is a bleeding edge of the law.

Cyberspace facilitates our ability to engage in a wide-range of activities, including activities in which we share a great deal of detailed and sometimes personal information about ourselves to strangers. In this course, we will examine two inter-related areas of the law that Cyberspace may be shaping in profound ways. We will consider some of the novel questions facing us concerning an individual’s right of privacy when participating in an apparently public forum like Cyberspace. Why is privacy valued? Should privacy be regulated differently in Cyberspace than in real-space? If so, how? If not, why? These fundamental questions form the basis for our study of privacy in Cyberspace.

The course will also review the legal setting developed thus far concerning freedom of expression or speech rights in Cyberspace. As an outgrowth of the course’s examination of privacy and speech, we will evaluate the emerging legal framework with respect to the intersection of speech and privacy in areas of technology such as: the use of encryption in electronic communications, the publication of the fruits of intercepted private speech, and the emergence of Internet Governance. Participants in the course will make fairly extensive use of Cyberspace as a basis for class discussion, study, and research.  There will be one short presentation and a research paper required on an issue discussed in the course.

Course Requirements:

The course grade will be based on the student’s performance on a significant research paper and class participation, including a brief presentation:

1.  Research Paper -- 70%.  The Research Paper must be at least 20 pages.

Topics.  The deadline for selection of paper topics is the third week in the semester. 

First Drafts.  On a date announced in class, a first draft of your paper is due. Shortly thereafter, I will offer comments and suggestions on the paper in preparation ofr the final draft.

Final Drafts.  Completed papers are due on the date announced in class.

2.  Class Participation -- 30%.  In-class discussion is essential in this course.

3.  Attendance is required.

4. The course texts include the readings hyperlinked on this course web page and Madeleine Schachter's Law of Internet Speech (Law of I.S.).

5. This course provides an opportunity to those who are so inclined to become thoroughly familiar with using the Internet to locate legal resources. Hence, an is available here. For students who have mastered legal research techniques using the Internet, yopu are encouraged to submit helpful resources that may be added to the index.

The readings for each class meeting:

Week 1:  Cyberspace & the limits of jurisdiction...

If you have not done so already, spend some time exploring the web (surfing). Take notes on what websites you visit and list your favorite (or most frequently used) places on the Internet so we may discuss our Internet experiences during class. If your web browser does not have bookmarks, you may begin exploring the web from any of the links under "What are Cyberspaces?"

Please read:

BLUMENTHAL v. DRUDGE, [p.89 of Law of I.S.];

PEOPLE SOLUTIONS v. PEOPLE SOLUTIONS, [p.94 of Law I.S.]

NOTE: Before turning in your first draft, you should read: Eugene Volokh, Writing a Student Article, 48 J. Legal Educ. 247 (1998).

RECOMMENDED READINGS: (particularly for those who want to explore the question of jurisdiction further...)

Allan R. Stein, The Unexceptional Problem of Jurisdiction in Cyberspace, 32 The International Lawyer 1167 (1998).

Minnesota v. Granite Gate Resorts, Inc., No. C6-97-89 (1997).

David R. Johnson & David Post, Law Without Borders -- The Rise of Law in Cyberspace, 48 Stan. L. Rev. 1367 (1996);

Dan L. Burk, Federalism in Cyberspace, 28 Conn. L. Rev. 1095 (1996).

A. Michael Froomkin, The Internet as a Source of Regulatory Arbitrage, in Brian Kahin & Charles Nesson, eds., Borders in Cyberspace:  Information Policy and the Global Information Infrastructure 129 (1997).

James Boyle, Foucault in Cyberspace: Surveillance, Sovereignty, and Hard-Wired Censors (1997)(Conference paper).

Weeks 2-4:  Internet Governance and Private Sector Management of Cyberspace