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July|August 2003
To Kill an Avatar By Dan Hunter and F. Gregory Lastowka
May The Best Wookiee Win
The Copyright Cage By Jonathan Zittrain
Your Cellphone is a Homing Device By Brendan I. Koerner
Camera Shy By Patrick Keefe
Seeing it Both Ways By Orin S. Kerr
The Science of the Small By Glenn Harlan Reynolds

Seeing it Both Ways

Matthew Kammersell ended up in prison because he didn't know the difference between the physical and virtual realities of the Internet. Do the courts?

By Orin S. Kerr

IN THE 1999 SCIENCE FICTION THRILLER THE MATRIX, whose sequel came out this spring, Keanu Reeves plays Neo, a computer hacker who learns that the reality he has experienced since birth is actually a virtual reality created by a computer network known as the Matrix. The real Neo has spent his life in a semi-comatose state, attached to a computer network that has been distracting him with virtual reality while harnessing the energy from his body. Neo ends up joining the rebel forces trying to destroy the Matrix, and the movie jumps several times between the virtual world inside the Matrix and the real world outside it. The movie presents us with two different realities, two existing worlds. The first reality is the virtual world that we experience inside the Matrix. The second is the "real" world that we experience outside it.

The Matrix illustrates an important problem that we encounter when we try to understand the Internet and the nature of Internet law. Like Neo confronting the Matrix, we can think about the Internet in two ways, virtual and physical. How we think about the facts of the Internet and create a model of it depends upon the perspective we choose.

The virtual perspective of the Internet is like the perspective inside the Matrix: It accepts the virtual world of cyberspace as akin to a reality. Of course, unlike Neo, we know all along that the virtual world that the computer generates is just that. But as we try to envision what we experience online, we might decide to treat that virtual world as if it were real. From this perspective, a computer connected to the Internet provides a window to a virtual world of cyberspace that is roughly analogous to the physical world of real space. The user can employ her keyboard and mouse to "go shopping" or "send mail." She can "visit" a chat room, participate in an online community, or conduct any number of other everyday activities online, all without moving from the computer. The technical details of what the computers attached to the Internet actually do "behind the scenes" don't particularly matter. What matters is the virtual world of cyberspace that the user encounters and interacts with when she goes online.

We can also understand the Internet from a different perspective. Like Neo when he is outside the Matrix, we can look at the Internet from the point of view of the physical world, rather than the virtual one. The physical perspective adopts the viewpoint of an outsider concerned with the functioning of the network in the physical world rather than the perceptions of a user. The physical perspective treats the Internet as a physical network of computers located around the world and connected by wires and cables. The hardware sends, stores, and receives data in the form of digital ones and zeroes using a series of common protocols. Keyboards provide sources of input to the network, and monitors provide destinations for output. When the network runs properly, trillions of ones and zeroes zip around the world, sending and receiving electrical impulses that the computers connected to the network can translate into commands, text, sound, and pictures.

From a physical perspective, the fact that Internet users may perceive that they have entered a virtual world of cyberspace has no special relevance. These perceptions reflect that software designers often garnish their applications with icons, labels, and graphics to help novices understand and use them—for example, writing e-mail programs that make e-mail look and feel like postal mail. These superficialities have no deeper meaning from a physical perspective. What matters are the technical details of how the applications work within the physical network, not the easily manipulated perceptions of Internet users.

Both the physical and virtual understandings of the Internet should ring true to most of us. The Internet is a physical network, and it can create a virtual world that can appear sufficiently realistic to its users to make a plausible claim for equal footing with the physical world. But the key for us is that by generating a virtual reality, the technology in a sense leaves us with two Internets, rather than one. One is physical, the other virtual.

WHY DOES THIS MATTER TO LAWYERS AND TO THOSE WHO STUDY CYBERLAW? It matters because legal outcomes depend on facts, and there are, potentially, two sets of facts created by the Internet depending on which perspective we choose. The basic task of a lawyer, after all, is to apply legal rules to facts. But when applying laws to the Internet, we often face competing understandings of reality, physical and virtual. By choosing the perspective, we choose the reality; by choosing the reality, we choose the facts; and by choosing the facts, we choose the law.

What makes this problem unusually interesting is that there is no set correlation between virtual and physical renderings of the facts. Significant changes in the behind-the-scenes workings of the Internet can go unnoticed by users. At the same time, minor changes in computer code can make a dramatic impact on users' experiences. (Recall the switch from DOS to Windows; while your computer seemed like a new machine, in fact Windows was only a graphic overlay based on DOS.) A typical user immersed in the virtual perspective can be blissfully unaware of the complex inner workings of the Internet.

The lack of correlation between the real and the virtual has profound implications for Internet law. When we apply the law to the facts, a virtual perspective will take us down one path, and a physical perspective will often take us down another. The shape of Internet law hinges on the choice of perspective, a distinction that is lost on a great many courts and commentators, who often switch perspectives without recognizing a change has taken place.

Consider two examples applying the Fourth Amendment's prohibition against unreasonable searches and seizures. Here's the first scenario: Imagine you send an e-mail to me, and two police officers learn about the e-mail and believe that it might reveal a nefarious criminal conspiracy between us. The officers agree that they should try to obtain a copy of the e-mail to prove the conspiracy. They confront a legal question: What kind of legal process must they undertake in order to obtain the e-mail? Does the Fourth Amendment require them to obtain a search warrant?

Imagine that the first officer applies the virtual perspective of the Internet. To him, my e-mail is the cyberspace equivalent of old-fashioned postal mail. After all, my computer announces "You've got mail!" and displays a closed envelope when an e-mail message arrives. When the officer clicks on the envelope, it opens, revealing the message. From his virtual perspective, the officer is likely to conclude that the Fourth Amendment places the same restriction on government access to e-mail that it places on government access to ordinary postal mail. He will look in a Fourth Amendment treatise for the black-letter rule on accessing postal mail. That treatise will tell him that accessing a suspect's mail ordinarily violates the suspect's "reasonable expectation of privacy" and that the officer must first obtain a warrant. Viewing e-mail as analogous to postal mail, the officer will conclude that the Fourth Amendment requires him to obtain a warrant before he can access the e-mail you send me.

Imagine that the second police officer approaches the same problem from a physical perspective. To him, the facts look quite different. Looking at how the Internet actually works, he argues that when you sent the e-mail to me, you allowed several intermediaries to observe the content of the message. After all, by sending the e-mail you gave an instruction to your computer to send a message to your Internet service provider directing your ISP to forward a text message to my ISP. Your ISP received the instructions, and the e-mail crossed the Internet until it arrived at my ISP's mail server. The next morning, when I sat at my desk and clicked on the icon to read your message, I asked my ISP's mail server to run off a copy of the message—the server retains the original—and send it to me at my desk.

The second officer will reason that you disclosed the contents of the e-mail to your ISP, with instructions to disclose the contents of the e-mail again to my ISP, before finally relaying the message to me. The second officer will look in the same Fourth Amendment treatise and find the black-letter rule that the government requires only a subpoena—not a warrant—to obtain information that's already been disclosed to a third party.

Who is right? The first officer or the second? It all depends on your perspective. Accept the virtual facts and the officers need a search warrant; accept the physical facts and they don't.

Let's consider a second example that reverses the implications of the physical and virtual approaches. Imagine that the two police officers start investigating a local business that is a front for the mob in New York. The officers learn that the mob has stored a full set of records of the mob's illegal activities on the business's computer network. The officers obtain a warrant to search the New York office of the business for the computer files. Importantly, the Fourth Amendment requires that the warrant be fairly narrow and specifically name the place that will be searched (e.g., "the business offices of the Mobfront Company, 123 Pine Street, Suite 200") and the evidence that will be seized ("computer files containing evidence of organized crime activity"). The warrant gives the officers a limited grant of authority: It allows them to search the precise location of the business for the precise evidence described, and no more.

Imagine that when the officers execute the search, they find several computer terminals inside the business offices that are connected to the network, but they cannot find the central computer server that stores the network's files. In fact, the network server is located thousands of miles away, in another state. The officers will face a question: Does their search warrant allow them to search the terminals inside the business and retrieve the information stored remotely on the network?

The first police officer, who prefers a virtual perspective, will say "yes." This officer will approach the terminal and see various icons indicating the presence of the network's files. To him, the files listed are virtually present inside the terminal; he can access them from the network exactly as he would be able to access files stored on a local hard drive or floppy disk. The first officer will look at the warrant, will see that it authorizes him to search "123 Pine Street, Suite 200," for "computer files containing evidence of organized crime activity," and will conclude that the warrant authorizes him to search the terminal for the evidence.

The second police officer, who approaches the same problem from a physical perspective, will disagree. He will reason that if he sits down at the terminal and starts looking through the files on the network, he will actually be instructing the terminal to send commands to the remote central server to run off copies of the files and send them back to him. Retrieving the files will not search "123 Pine Street, Suite 200," as his warrant allows, but rather will direct a search of the physical location of the server located thousands of miles away. If the server is located in California, he will be searching a place in California. The search warrant does not allow the officer to execute a search outside of the physical address of the business, much less in another state. The second officer will conclude that the search warrant does not allow him to search the terminal for the network's remotely stored files. The virtual facts authorize the officers to search the terminal; the physical facts do not.

Internet law's dependence on perspective is not only a Fourth Amendment problem. The choice between virtual and physical facts pervades the law of the Internet, arising every time a judge relates the facts of the Internet to the law. Consider the Tenth Circuit's decision in United States v. Kammersell. In this case, a 19-year-old named Matthew Kammersell used America Online's instant message service to send a bomb threat from his home in Riverdale, Utah, to his girlfriend's computer in nearby Ogden, Utah. The government prosecuted Kammersell under a law that makes it a federal crime to send interstate communication containing a "threat to injure."

Kammersell's lawyers argued that no interstate communication took place when he sent a message to his girlfriend, who was just a few miles away in the same state. The government countered with a physical perspective, noting that because America Online's servers are located in Virginia, every AOL instant message must be routed there first, and then sent to its destination. Unbeknownst to Kammersell, his instant message had traveled from Utah to Virginia, and then back to Utah.

Did Matthew Kammersell send an interstate threat? From a virtual perspective, no; from a physical perspective, yes. The Tenth Circuit adopted the government's physical perspective and affirmed the conviction.

Consider another example, the debate over whether an ISP such as America Online should be considered a state actor regulated by the First Amendment. From a virtual perspective, the answer is yes, as AOL provides a virtual town square to its users; from a physical perspective, the answer is no, as AOL is only a private company in Virginia. Or consider whether the Internet site violated the copyright laws when it allowed users to upload MP3 files of CDs they owned. From a virtual perspective, the service simply provided a virtual carrying case for the owner's CDs; from a physical perspective, it made unauthorized copies of copyrighted materials both to create the collection and to send it to users. Because the law hinges on the facts and the facts hinge on the choice of perspective, judges and commentators often reach one outcome applying the law to virtual facts and another applying the law to physical facts.

MANY SCHOLARS BELIEVE THAT THE FIELD OF INTERNET LAW offers nothing new. They reason that applying law to the Internet is like applying law to any new set of facts: We draw analogies as best we can and then apply existing law. To these skeptics, the law of the Internet is merely "old wine in new bottles." Although it has a fancy New Economy name—cyberlaw—there is nothing really new about the law of the Internet.

Cyberlaw's proponents, led by the Stanford Law School professor Lawrence Lessig, have offered only a partial response to these claims. Lessig has defended the study of cyberlaw on the ground that it can shed light on law beyond cyberspace, revealing how the law interacts with other regulators of human conduct, such as architecture and social norms. This may be true, but it largely fails to address the skeptics' criticisms. If anything, Professor Lessig's defense may add fuel to their argument: By defending cyberlaw based on its similarities to the rest of law, he appears to concede that nothing new happens when we apply law to the Internet.

The problem of perspective suggests that the defenders of cyberlaw are right, although perhaps not for the reasons they have offered. Internet law does offer something new—not so much in how we approach the law, but rather in the way that we approach the facts. Choosing an approach to the Internet's facts turns out to be more complicated than the skeptics suggest. It requires us to choose between physical and virtual constructions of those facts, between physical and virtual reality. It's a choice courts should make carefully and knowingly, because it will have a far-reaching influence over the shape of Internet law.

Orin S. Kerr is an associate professor of law at the George Washington University School of Law. This article was adapted from "The Problem of Perspective in Internet Law," which appears in the February 2003 issue of the Georgetown Law Journal.

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