Private Lawmaking in Commercial Cyberspace

Abstract

No discussion of “Law and Technology” would be complete without at least one essay centered on the Internet. While the Internet no longer captures our imagination with the same force as it did 20 years ago, we cannot assume that it no longer creates (or perpetuates?) multiple legal problems. When we talk about the Internet we must, however, refrain from the popular “Internet meta-narrative” that often leads to superficial arguments and unhelpful generalizations. We must always remain aware of the multiplicity of the Internet’s technical applications and the wide range of legal contexts in which the term gains significance. Discussing the Internet in the context of freedom of speech or cybercrime raises different legal issues than in the context of commerce or contract. In most instances, we should avoid mentioning the Internet altogether and refer to specific Internet-enabled technologies or services, such as e.g. the web or video streaming. This brief essay addresses one specific issue: the regulation of online activity by means of private agreement. I have, however, chosen yet another term to provide the backdrop for the discussion: “cyberspace.” Although we know that cyberspace only exists at some esoteric, conceptual level, I have chosen the term to pay homage to early cyberspace scholarship, to invoke the reader’s memories of its idealistic values and its promotion of separatist, self-regulatory thinking. Consequently, embellishing cyberspace with the adjective “commercial” seems highly inappropriate, if not heretical. After all, cyberspace is supposed to be free, permeated with community spirit and libertarian values. How can it be commercial?