Pre Internet Rules Or New Rules

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In 1996 at a conference on cyber-law, Judge Frank Easterbrook of the US Court of Appeals gave a presentation on Property in Cyberspace in which he argued that cyber-law as a strand of law did not exist, for the same reasons that there was not a law of the horse”. He argued that Teaching 100 per cent of the cases on people kicked by horses will not convey the law of torts very well He believed that existing law would be able to convey all the salient points of cyber-law, and therefore it would be better if it was not taught, or did not exist. I am going to use his Horse Law as the basis for this essay and outline the way that pre-internet laws work in cyberspace (if indeed they do); identifying where real-world analogies are brought into the law by the courts and seeing where the law now is terms of cyberspace regulation. I will focus mainly on the criminal law, as civil regulation online has grown up mostly around business practices, and criminal law has and needs to be addressed by the Government. Are laws technologically-neutral? Should they be? Lawrence Lessig wrote a reply [3] to Easterbrook, which argued that ‘We see something when we think about the regulation of cyberspace that other areas would not show us’. Lessig did not defend horse law, but defended cyber-law from being ejusdem generis with it. Lessig believed that ‘The anonymity and multi-jurisdictionality of cyberspace makes control by government in cyberspace impossible’, and that made cyber-law unique and worthy of study. Lessig concludes the essay by predicting ‘the values of real-space sovereigns will at first lose out’ during the growth of the Internet, and that part of cyber-law’s job is to monitor the interactions and inevitable growth and change of these sovereigns in cyberspace. It seems that if you build it, they will come. But academic debate on cyber-law as a subject did not end there. Sommer [4] argues, like Easterbrook, that cyberspace is not a new place for new laws but a new place for old laws. He believes that it will take a while for new practices to develop that need new laws [5] . He draws analogy with wire transfers referencing Article 4A of the Uniform Commercial Code, which codified over a century of wire transfer law, yet was ‘built on no prior statute’. So will “cyber statutes” or laws merely codify existing practices into a new arena? Or will they be new and different? In 1984, two hackers called Stephen Gold and Robert Schifreen gained access to BT’s Prestel network and started series of (nearly) harmless pranks within the network [6] . They were eventually caught and charged with an offence contrary to s.1 of the Forgery and Counterfeiting Act 1981, which states ‘A person is guilty of forgery if he makes a false instrument, with the intention that he or another shall use it to induce somebody to accept it as genuine, and by reason of so accepting it to do or not to do some act to his own or any other person’s prejudice’.

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