Cyberspace: the newest challenge for traditional legal doctrine.

• Author: Gilligan, Francis A.

Cyberspace is a complex of electronic networks that cross state and national boundaries. Novelist William Gibson coined the term "cyberspace" to describe the space in which his characters interacted.(1) Because cyberspace recognizes no geographic boundaries, its full social, political, and economic potential has yet to be realized.(2)

The advent of such a radically new phenomenon as cyberspace tests the adaptability of the legal system: Can our ancient and tradition-laden system come to grips with the novel legal issues posed by the cyberspace network? United States v. Maxwell,(3) a 1996 decision by the United States Court of Appeals for the Armed Forces, is one of the first cases to struggle with those issues. The thesis of this article is twofold. First, this article argues that in the final analysis, the Maxwell court erred. Second and more importantly, the article contends that despite its error, the Maxwell decision demonstrates the adequacy of the traditional judicial system to meet the legal challenges cyberspace raises.

1. CYBERSPACE: THE NEW PHENOMENON

   In cyberspace, individuals communicate through a wide variety of private, commercial, governmental, and educational networks. Users include individuals, group systems with intranet communications, and group systems with Internet communications. Electronic communications can be conducted by satellite or hard telephone lines.

   Cyberspace not only employs multiple communication networks; it is multifunctional. Individuals may communicate in real time by entering a chat room and typing messages to one another. These messages are "akin to a note or a letter--to another individual or a group of addressees."(4) There are also "news groups [which] serve groups of regular participants, but these postings may be read by others as well. There are thousands of such groups, each serving to foster an exchange of information or opinion on a particular topic ...."(5) In addition to being a medium through which to send notes back and forth, cyberspace functions as a "vast library including millions of readily available and indexed publications and a sprawling mall offering goods and services."(6) The typical home computer with a seemingly modest ten megabytes of storage capacity has the equivalent capacity of approximately 100,000 typewritten pages.(7)

   Although cyberspace holds tremendous promise of economic, educational, medical, and political benefits, such gains entail potential costs to personal privacy.(8) When people are surfing through cyberspace, online companies can track them, compile information about them, and then sell the information.(9) Additionally, law enforcement officials may "cruise" the Internet in search of child pornography or software modified in violation of copyright or contract law.(10) Information about computer users can easily be acquired from outside the premises where the computer is located because computers emit electronic signals.(11) A cathode ray tube ("CRT") "microspy" can monitor computer activity by remote scanning.(12) Although microspy equipment is not as widely available as radio scanners, the systems work virtually the same way.(13) The emerging issue is whether existing statutory and constitutional legal doctrines will prove adequate to the challenge of curbing these formidable threats to privacy while still permitting cyber-space to perform its useful functions.

2. THE TRADITIONAL LEGAL FRAMEWORK: STATUTORY AND FIRST AMENDMENT DOCTRINE

   The focus of this article is the extent to which cyberspace users enjoy privacy protection under the Fourth Amendment. To sharpen that focus at the outset we must distinguish this topic from related legal doctrines impacting cyberspace.

   1. Non-Constitutional, Statutory Protection, 18 U.S.C. [subsections] 2510, 2701

      The 1986 Electronic Communications Privacy Act ("ECPA") prohibits the manufacture, possession, advertisement, or distribution of any device that can be used for surreptitious interception of electronic communications.(14) The ECPA extended federal wiretap law to prohibit unauthorized intentional interception of any wire, oral, or electronic communication.(15) Prior to the enactment of the 1986 legislation, federal wiretap law protected conversations made through oral or wire communication that could be intercepted.(16) Inaudible digital communications, however, were not protected. Section 2510(12) of the ECPA expanded the definition of "electronic communication" to include "transfer of signs, signals, writing images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photooptical system that affects interstate or foreign commerce."(17) Consequently, the ECPA extends to national online systems.

      As the Act's legislative history explicitly states, "private networks and intra-company communication systems are common today and ... within the protection of the statute."(18) The interception of communications falling within the ECPA may be authorized only by a warrant or subpoena.(19)

      In some respects the protective ambit of the ECPA is broader than that of the Fourth Amendment to the United States Constitution.(20) For example, even without a showing of a Fourth Amendment violation, the ECPA provides grounds for suppression of illegally intercepted wire or oral communications.(21) Moreover, the ECPA authorizes civil damages, protective orders, and other declaratory and equitable relief.(22)

      However, the ECPA does not protect communications "readily accessible to the general public."(23) The Act permits a system operator to monitor the system when there is suspected abuse.(24) The Act further provides that when there is an inadvertent disclosure by the system operator, the information disclosed may be communicated to law enforcement official.(25)

      In sharp contrast to ECPA's treatment of inadvertent disclosures, Title II of the Act prescribes criminal sanctions for those who intentionally access stored electronic communications.(26) Law enforcement officials may access electronic communications that have been stored for less than 180 days only pursuant to a warrant.(27) The government must give notice to the subscriber if the electronic communications have been stored for 180 days or longer and were obtained through a court order or an administrative, grand jury, or trial subpoena rather than a search warrant.(28) The operator of the system may not be compelled to disclose the identity of recipients or senders of the communications absent a warrant or a subpoena.(29) This exceeds the protection afforded information related to telephone calls.(30)

   2. First Amendment Protection

      Cyberspace enjoys constitutional as well as statutory protection. However, because cyberspace is so new, courts must be cautious in identifying the array of First Amendment and Fourth Amendment issues dealing with cyberspace. "Law can play a role in shaping culture, but legal doctrine is a part of the culture and is frequently hostage to it."(31) The issue is whether cyberspace will necessitate the reshaping of constitutional law doctrine.

      There are some similarities -- but some notable differences -- between the print media, which, it is well settled, enjoy First Amendment protection, and the new electronic media. "[J]ust as printing did not replace but displaced writing, and writing did not replace but displaced storytelling and just as movies did not replace theater nor television movies ... cyberspace will not replace either objective reality or dreaming and thinking in their historical mode."(32) In 1997, citing print media cases, the Supreme Court extended First Amendment protection to cyberspace in its decision in Reno v. American Civil Liberties Union.(33)

      In this context the First and Fourth Amendments are intertwined. The Fourth Amendment has been pressed into service to protect not only the right to privacy, but also freedom of expression. In England, "the struggle for freedom of speech and press ... was bound up with the issue of the scope of the search and seizure power."(34) The infamous Star Chamber decrees granted the warden of the Stationers Company the power to search to "suppress both Catholic and Puritan dissenting literature."(35) One search case, Entick v. Carrington,(36) has been described as a "landmark of English liberty" protecting free speech.(37) In Entick, Lord Camden, Lord Chief Justice of the Common Pleas, struck down a search warrant which had resulted in ransacking Entick's home for four hours and seizing large quantities of books and papers.(38) Lord Camden declared.

      This power so assumed by the secretary of state is an execution

      upon all the party's papers, in the first instance. His house is

      rifled; his most valuable secrets are taken out of his possession,

      before the paper for which he is charged is found to be criminal

      by an competent jurisdiction, and before he is convicted either

      of writing, publishing, or being concerned in the paper.(39)

      The same Lord Camden invalidated the general warrants employed against John Wilkes for the publication of issue number 45 of The North Britain.(40)

      In cases involving the seizure of a large quantity of books or films allegedly containing obscene material, the courts have held that there must be an adversary proceeding in order to avoid "danger of abridgment of the [First Amendment] right of the public in a free society to unobstructed circulation of nonobscene books."(41) However, even these holdings have not prevented the occasional seizure of a limited number of copies of allegedly obscene publications for evidentiary purposes.(42) The Supreme Court, in Zurcher v. Stanford Daily,(43) rejected the use of subpoenas rather than search warrants.(44) The Zurcher Court appreciated the close connection between First and Fourth Amendment values; the Court stated that "particular exactitude" must be applied "when First Amendment interests would be endangered by...