The common law in cyberspace.

• Author: Bell, Tom W.
• Position: 1999 Survey of Books Related to the Law

LAW AND DISORDER IN CYBERSPACE: ABOLISH THE FCC AND LET COMMON LAW RULE THE TELECOSM. By Peter Huber. New York: Oxford University Press. 1997. Pp. xv, 265. $30.

INTRODUCTION

"Wrong in interesting ways," counts for high praise among academics. Peter Huber's(1) stirring new book, Law and Disorder in Cyberspace, certainly merits acclaim by that standard. The very subtitle of the book, Abolish the FCC and Let Common Law Rule the Telecosm, announces the daring arguments to follow. A book so bold could hardly fail to make some stimulating errors, the most provocative of which this review discusses. Thanks to his willingness to challenge musty doctrines of telecommunications law and policy, moreover, Huber gets a great deal right.

Law and Disorder in Cyberspace argues at length that the Federal Communications Commission (FCC) has warped telecommunications markets, hindered technological advances, and violated constitutional rights.(2) Huber blames the inherent nature of "commission law," which he likens to Communist command-and-control economics: "rigid, slow, and -- despite all the earnest expertise of bureaucrats -- ignorant" (p. 8). Reforming the FCC is thus not an option; rather, it "should shut its doors, once and for all, and never darken American liberty again" (p. 7).

What would replace the FCC? Market processes and common law courts. Rather than licensing access to the electromagnetic spectrum, Huber would sell it, dezone it, and leave private parties to determine its best uses (pp. 71-76). He regards price regulation of telecommunications services as inevitably and thankfully doomed by protean technologies and increasing competition (pp. 117-29). In place of the universal service subsidy, Huber counts on market forces to provide cheap basic access just as they already provide cheap fast food (pp. 130-41). The FCC sets technical standards quickly but incorrectly; "[c]ompetition delivers real standards more slowly but far more robustly" (p. 161). The telecommunications industry will deliver these and other triumphs, claims Huber, once it escapes from "commission-law."

To maintain order in the telecosm requires not FCC regulation, Huber argues, but merely the case-by-case determinations of common law courts. He would, of course, have judges enforce time-tested and general principles of property, contract, and tort law.(3) Huber likewise invokes particular common law rules that seem to suit telecommunications particularly well, such as those relating to common carriage,(4) defamation (pp. 173-77), and privacy.(5) More controversially, he embraces even rules that originated relatively recently and through legislatures, such as those of antitrust,(6) copyright,(7) and First Amendment law (pp. 165-77, 203). These win good standing in Huber's view because he emphasizes the process of common law over its substance, demanding merely a law that "evolves out of rulings handed down by many different judges in many different courtrooms" (p. 8).

Huber's failure to treat common law as a whole, process and substance together, opens a rift in the foundation of his text.(8) Because Huber need only show that common law -- as he understands it -- will improve on commission law, this theoretical flaw does not in itself disprove his thesis. But through the fault line creep a number of troubling errors. Huber accords antitrust law, abandoned by many of his fellow travelers and inconsistent with common law proper, inexplicable deference.(9) In an analysis aggravated by gravely suspect factual claims, Huber promotes mandatory interconnection at the expense of property and contract rights.(10) His support of copyright law likewise threatens to contradict common law. By contrast, Huber's over-eager application of property rules to the electromagnetic spectrum overlooks the far better fit offered by common law trademark principles.(11) One might argue that a future version of the common law, one upgraded and uploaded to the telecosm, will work so well as to correct these substantive errors.(12) One might, but Huber does not.

Tracing the lines of these various faults will illuminate not only Law and Disorder in Cyberspace qua book, but law and disorder in cyberspace qua the recurring policy puzzle of our day. Huber's text thus presents not merely interesting errors, but enlightening ones. Perceiving that a miasma of incivility hangs over the book, however, some readers may fail to fully appreciate its charms. The next Part aims at dispelling that somewhat unfair impression.

1. THE MADNESS IS HUBER'S METHOD

   To the credit of Huber's brisk and clever writing, Law and Disorder in Cyberspace remains interesting even when obviously right. Few people would describe broadcast television in its heyday as a bastion of intellectualism. Huber's jibe: "It kept your eyes warm while you slept" (p. 133). Especially now that the Supreme Court has struck parts of it down, no one can doubt that the Communications Decency Act skirted constitutional limits. Huber, opining prior to Reno v. American Civil Liberties Union,(13) dryly observed that an Internet researcher who "types `Show Panties' can hardly be heard to complain about the shock to his sensibilities that follows" (p. 172). Law and Disorder in Cyberspace fairly bristles with such witticisms.

   Huber's sharp tongue arguably serves Law and Disorder in Cyberspace less well, however, when he moves from the current consensus to the fringe of the ongoing debate over the law and policy of telecommunications. Arguing that the Federal Communications Commission (FCC) is "unconstitutional, Title to Title, top to bottom," for example, Huber blames its continued survival on "all the little constitutional issues that swarm out of the commission like maggots" and distract its critics (p. 200). Huber portrays the FCC as a shadow from the "night of totalitarian government" (p. 5) that descended across Europe in the early 1900s and places the current FCC in "an Alice-in-Wonderland sort of world, in which the less reason the Queen has to exist at all, the more corpulent and powerful she becomes" (p. 5).

   Most academics regard this sort of talk as shockingly frank or nearly libelous, but at any rate as too raw for comfort.(14) Huber does not provide a supporting reference for his claim that "the FCC's different pronouncements on [children's television] should have been accompanied by a cone-shaped hat, a star-studded cloak, and the sounding of a Chinese gong" (p. 167). Nor does Huber footnote his cite to "fairness gnomes at the FCC" (p. 147). Though ample notes do back up his serious claims, figures, and quotes, Huber apparently did not write Law and Disorder in Cyberspace with academic tastes foremost in mind.

   Instead, Law and Disorder in Cyberspace aims primarily at policymakers, mass media commentators, and educated lay people. That influential audience will find the book both entertaining and largely convincing. With works like Orwell's Revenge(15) and Junk Science,(16) Huber has already demonstrated his power to shape popular opinion. For that reason alone academics should take care to understand the arguments in Law and Disorder in Cyberspace.

   Huber's ample qualifications also suggest that we take Law and Disorder in Cyberspace seriously. After earning a Ph.D in engineering from MIT, Huber graduated from Harvard Law School and clerked for the U.S. Supreme Court.(17) He ascended to policy wonk stardom in the mid-1980s by creating for the Department of Justice an exhaustively documented report on the telecommunications industry, heavily influencing the efforts of the Department and the federal courts to break up AT&T under the aegis of antitrust law.(18) Huber coauthored the first full treatise on federal telecommunications law in 1992(19) and has since then coauthored texts on federal broadband law(20) and the Telecommunications Act of 1996.(21) On the basis of such credentials and achievements, Huber has become a leading figure in telecommunications law and policy.

   Most importantly, academics should heed Law and Disorder in Cyberspace for the substantive ideas that shine through Huber's occasionally sharp rhetoric. Even though Huber's tone may wrongly suggest that he cannot be wrong, his comprehensive critique of telecommunications law and policy does, after all, get a great deal right. At any rate, we should decently expect outrage from someone who unfavorably compares Herbert Hoover, father of the FCC, to Joseph J. Goebbels (p. xiv). That such polemic grates on academics' ears does not prove Huber wrong; it merely proves him spirited.

2. TAKING THE COMMON LAW SERIOUSLY

   Law and Disorder in Cyberspace rightly criticizes the FCC for slowing technological progress and infringing on fundamental rights. Congress shares the blame, both for delegating overbroad powers to the FCC and for giving it specific and unwise orders. As Huber explains, however, the FCC's susceptibility to public choice pressures and its slothful, top-down, and baroque regulatory process cannot help but render it unfit to make law for the telecosm (pp. 4-9, 24-62, 95-99, 120-23, 133-36, 146-54, 166-68, 199-206). That the FCC has thrived even under the allegedly deregulatory Telecommunications Act of 1996(22) demonstrates that it will hardly wither before Huber's call for the Commission's abolition. Still, to judge from the Civil Aeronautics Board and the Interstate Commerce Commission, federal agencies that regulate networks appear uniquely vulnerable to fatal reforms.

   Granted, the FCC does a poor job of regulating telecommunications and that it may someday face termination. But can common law courts do any better? Huber convincingly argues that they can. "The telecosm is too large, too heterogeneous, too turbulent, too creatively chaotic to be governed wholesale, from the top down," he explains (p. 206). "In a place like that, nothing except common law can keep up" (p. 8). Huber is not alone in touting the common law's unique...