The Internet and the Constitution: a Selective Retrospective

• Citation: Vol. 9 No. 3
• Publication year: 2014

Washington Journal of Law, Technology and Arts Volume 9, Issue 3 Winter 2014

The Internet and the Constitution: A Selective Retrospective(fn*)

The Honorable M. Margaret McKeown(fn**) © M. Margaret McKeown

ABSTRACT

Over the last two decades, the Internet and its associated innovations have rapidly altered the way people around the world communicate, distribute and access information, and live their daily lives. Courts have grappled with the legal implications of these changes, often struggling with the contours and characterization of the technology as well as the application of constitutional provisions and principles. Judge M. Margaret McKeown of the United States Court of Appeals for the Ninth Circuit has had a close-up view of many of these Internet-era innovations and the ways the courts have addressed them. In this Article, adapted from her October 2013 Roger L. Shidler Lecture at the University of Washington School of Law, Judge McKeown offers her retrospective thoughts on the ways courts have handled constitutional issues in Internet cases. She also discusses some of the challenges currently facing courts and legislators alike as the U.S. legal system incorporates and accommodates Internet-based technologies and the societal, commercial, governmental, and relational changes they spawn.

INTRODUCTION

Newsweek, circa 1995, predicted that no one would ever "buy books and newspapers straight over the Internet" or "tote that laptop to the beach."(fn1) By 2012, Americans were spending billions shopping online during the holiday season, and Newsweek had left the print business entirely.(fn2)

So much for the reliability of predictions.

In 1997, the year before I joined the bench, on the eve of the initial public offering for Amazon.com, I walked into a federal courtroom in New York. Barnes and Noble, hoping to upend Amazon, claimed there was no bookstore, no books, no nothing. Virtually nothing. The argument reminded me of Gertrude Stein who said, "there is no there there."(fn3) Barnes and Noble was challenging Amazon's claim of being the "Earth's Biggest Bookstore." It was a time when judges did not have computers, were not familiar with the Internet, and e-commerce was just a buzzword. But everyone thought they knew what a bookstore was. We beat back that skepticism. Now, fifteen years later, I look back and query: Has the Internet been a game changer for the bench? And more specifically, has the Internet changed how we think about the Constitution?

Today the Internet is ubiquitous. We often forget that it was not commercialized until the mid-1990s, and that its intersection with the law is a relatively recent development-it has been less than 20 years.

In the early days of Internet law, there was the famous debate of whether the Internet was different. One judge argued that you don't need special rules and laws for the Internet any more than you do for horses.(fn4) This approach was adapted, of course, from Karl Llewellyn's view when he was drafting the first UCC principles.(fn5)

Being from Wyoming, I know about horses. Over the course of time, courts did create the law of the horse,(fn6) just as they have now created the law of the Internet or cyberspace. So while the "law of the horse" debate is interesting, particularly since we are here in the West, I view it as no longer worthwhile. In this Article, I will illustrate just how significant the impact of the Internet has been. Though building on foundational principles, there is a new frontier. The Internet is the modern-day Gold Rush in more ways than money.

Since the 1990s we have all become I-lawyers. It began with patent lawyers, known years ago as invention lawyers. Then, intellectual property, dubbed IP, came out of the woods. No longer was it a nerdy subject, but an interesting and lucrative one. Everyone became IP lawyers and then Internet lawyers, and, as judges, we have now become I-judges, with our I-pads on the bench.

With iPad or Surface or other tablet in hand, let me take you on a journey of how the judiciary has responded to the constitutional challenges of the Internet era. Instead of focusing on intellectual property and the Internet-a worthwhile topic where there are thousands of cases-I deliberately focus on the Constitution as the fulcrum because it offers a stark juxtaposition of the application of our cherished foundational principles to new technology.

In talking with lawyers and scholars, the first reaction is the story of a system overwhelmed: by the rapid pace of technological changes; by whole areas of doctrine, like the First Amendment, that are an uncomfortable fit with the Internet; by legal regimes, like jurisdiction, that haven't yet adapted to technologies that don't play by old rules or respect physical boundaries. And of course, there is the old joke about how we judges are too old to possibly understand the "Interwebs." All of those things are true (though I hope not about me!). Jurisdiction is cloudy, and certain areas of doctrine have, at the very least, some catching up to do.

But in the middle of that narrative-the "the Internet is changing all the rules and the system can't keep up" approach- there's a story that is getting lost: one about institutional stability in the face of change. That's the story I want to tell.

TECHNOLOGY MATTERS

How then, with technology that moves in gigabytes, zettabytes, and milliseconds, do the courts-which move cautiously-deal with the Internet? It is important to understand how courts view the Internet-is it something special or is it "old wine, new bottle"? To begin, it is instructive to take a look how the courts historically have written about Internet cases:

The first published appellate opinion to mention the "internet" came in 1991, in a Second Circuit case involving criminal prosecution for spreading a worm and crashing government and university computers. The court wrote that the defendant had "released into INTERNET, a national computer network, a computer program known as a 'worm' that spread and multiplied eventually causing computers to . . . 'crash . . . .'"(fn7) Not even THE INTERNET, just "INTERNET."

Three years later, there had still been only a few cases.(fn8) But by 2012, the landscape had changed: the word Internet appeared in some 20,000 state and federal cases, and the race was on. The Supreme Court first got in on the act in 1996 in a case involving cable television-Denver Area Educational Telecommunications Consortium v. FCC(fn9) Although the case was about cable TV, not the Internet, in a concurrence Justice Souter presciently noted: "[A]s broadcast, cable, and the cybertechnology of the Internet and the World Wide Web approach the day of using a common receiver, we can hardly assume that standards for judging the regulation of one of them will not have immense, but now unknown and unknowable, effects on the others."(fn10) So began the Supreme Court's first reference to the Internet.

The following year, the Supreme Court directly faced its first Internet challenge, interpreting a statute on Internet decency.

At this stage, in 1997, courts were still grappling with definitions and the shape of the box. In Reno v. ACLU,(fn11) the Supreme Court described "THE" Internet-the word at least received an article-as "an international network of interconnected computers that enables millions of people to communicate with one another in 'cyberspace' and to access vast amounts of information from around the world."(fn12) That description became the ubiquitous tag line and is parroted again and again in lower court cases.

Beginning with Justice Souter's references in the cable TV case, it soon became clear that the Court recognized the Internet as different and that the details of technology mattered.

The nuances of technology have been significant in the evolution of Internet law. More accurately, it should be called the evolution of law and facts. Because it is a comfortable form of analysis, courts often query through analogies. Is the Internet really just the Victorian telegraph or is it like broadcast media, or is it something different altogether? The file sharing cases-Betamax, Napster, and Grokster(fn13)-are good examples. For instance, when Sony came along with its Betamax device to record television programs, the entertainment industry claimed the sky was falling and the movie industry would be wiped out. As we now know, this new revenue source would help to keep the industry afloat. What impressed the Court was the testimony of Fred Rogers of Mr. Rogers' Neighborhood. (fn14) He said that home taping for noncommerical use was a public service; his program reached 3 million families a day. The Court also detailed the mechanical and other capabilities of the machine. (fn15) So a homespun argument plus an explanation of the technology carried the day. Courts are concerned not just with the case at hand but with the ripple effect of that case on technology not yet understood or created.

The importance of such details was front and center when the Court sent a follow-on appeal in Reno v. ACLU back to the trial court: "The factual record does not reflect current technological reality-a serious flaw in any case involving the Internet. The technology of the Internet evolves at a rapid pace."(fn16) Justice Scalia also underscored this point in Kyllo v. United States, a 2001 case involving thermal imaging: "It would be foolish...