Falling through the net
27 November 2000
The internet is mainstream. It is only a few short years since a few brave geeks typed obscure commands at a flashing cursor and commanded their computer to dial into another machine, allowing them to send and receive data across an embryonic network. Of course, the networks themselves were not new. The scientists and military, who built the collection of servers and telecoms networks to allow communication after "The Bomb" fell, had been sending mail, text and images for years. But suddenly the routes had hitchhikers, and the first overblown metaphor of netspace was born.
Anyone who had used the internet on a 9,600-baud modem in those early days of bulletin boards and the first stirrings of the World Wide Web laughed at the "information superhighway" concept hyped by politicians. The same thing is happening now as their modern wireless counterparts "surf the mobile internet" at the same data rate, as they squint at their mobile phones.
But the internet itself is now part of popular culture, business life and rhetoric. It has its own shelfspace in the bookstore, its own television programmes and BBC correspondent. It has its own trade press and critics and its own moral panics.
You can tell when something has become central to a culture. Suddenly a whole set of dangers appear around it. It can corrupt children and destroy traditional values. It can herald the end of the aura surrounding art or business. And a whole range of legal and quasi-legal issues circulate through popular culture, boardrooms and law firms.
The same thing happened with other cultural products. Whether it is penny dreadfuls, comic books, photography, video games or television, new technologies and their attendant cultural practices generate new languages, new ways of thinking and talking about a society, and new ways of organising a business and protecting rights, property and people. And it is the politicians and lawyers who are called upon to define the new limits to business.
We have been through three clear but intertwined phases in this evolution, and we are about to enter a fourth.
The first legal-political panic was the shadow of the hacker. This frightening young man (always male) threatened not just to wreak havoc across a company's computers, he redrew the boundaries of crime. This was crime at a distance - an unpoliceable distance. His activities crossed international frontiers, jurisdictions and even offences.
Bringing together moral panics around technology and youth, business panics about security and managing global enterprises, and legal-political panics about how up to date our legal system was, this first phase saw politicians reaching for new statutes and lawyers struggling to define and delimit the new netspace.
The second great business-legal issue surrounded domain names. This was the internet goldrush, when prospectors and cowboys headed west to stake a claim by adding "dotcom" to any brand name they could lay their hands on. For a few pounds anyone could bag a name. And so law firms' clients woke to find their precious brand had been hijacked - or "cybersquatted", as the panic termed it. And in an effort to regain control, MDs ran to their lawyers and rang their politicians. Lawyers fought valiantly to push the boundaries of passing off and to stay current with international case law.
The third phase has been the redrawing of public-private space by the networks. The blurring of boundaries that the network economy and netspace has set in motion has sent shockwaves through those professions which depend on clarity: when a publication is virtual, when its existence online is without place or time, when communication is instant yet transient, when data is untraceable and infinitely reproducible or its encryption uncrackable, the discursive foundations of libel, slander, ownership, rights and responsibility fail to carry the political and legal weight they once could.
This increasing instability has led politicians to retrench. The recent Regulation of Investigatory Powers (RIP) Act is an example of a government incapable of creating a political-economic infrastructure for a networked society without recourse to draconian and unworkable surveillance techniques.
But it is not just the notoriously short-sighted politicians who have arguably failed to understand and work with the fundamental shifts that the past few years have brought in our culture, society and business landscapes - landscapes that of course have legal dimensions. As our survey of some of the best legal brains shows, there is no clear agreement as to what the internet is or how it fits into established legal discourse, ways of doing law or managing the business of law. What is common, however, is that the firms contacted by The Lawyer are trying desperately to find foundations - whether technological or legal - on which to base definitions which can form the basis of legal arguments, contracts or simply pitches to clients.
And if the best legal brains and the most powerful and influential law firms are struggling to come to terms with the static internet, how will they cope with the next great technological phase of cellspace and its legal-political effects?
Until now, the internet - a shorthand term for the networks in all their forms - has been static. It has been tied, literally, to a desk at the office or at home. Its servers have been located somewhere and its access points quantifiable, identifiable and predictable. Even with peer-to-peer networks such as Napster which have redrawn the power relations between consumers and producers, it is possible to map the transactions and network effect no matter how recursive and chaotic it may be.
But with the advent of cellspace, even this shred of security will disappear. As companies and individuals communicate, do business, conduct legal, illegal and quasi-legal activities online through wireless (cell) technologies, the complexities multiply.
Of course, it is possible to track data over mobile networks. Security authorities can pin down those cells, but from a legal and business perspective can those communications be qualified, verified and established in such a way that business (and law) can be carried on in the way in which they have up to now?
Drug dealers have for a long time known that using pre-pay mobile phones, signed for with fake identification and paid for in cash, is the best way of conducting their type of business. UK phone companies now fear that the rush to pre-pay will damage the future of m-commerce (mobile e-commerce) as legitimate consumers remain invisible, untrackable and immune to customer relationship management (CRM). Furthermore, as networks fragment across cellspace, even the flexible borders of netspace will look hard-edged. As consumers and producers create micro-networks and peer-to-peer relationships, traditional rules of marketing, business and legal accountability will be redrawn.
This will not be the case three years hence when 3G mobiles allow a more realistic mobile online experience - it is the case as it stands now. The simple system management server (SMS) messaging system has spread through certain sections of society like wildfire. This is the first glimmering of a new network experience and culture, but also a new space that will have media interests and powerful companies and their lawyers seeking to control it.
As 3G mobile standards and Bluetooth technologies - which will allow seamless and transparent networks to operate without human intervention - develop, people will learn how to use and bend these technologies to their own cultural and business ends. No amount of draconian legislation or even old-economy ownership and control power will be able to stop the network effect. If you think it is hard trying to stop that e-mail joke circulating around your firm, imagine how difficult it will be to try to control or predict communication across a mobile network with mobile, untraceable and unaccountable nodes.
The pace of change - technological, economic and cultural - has meant that everyone concerned in this new space has been forced to make it up as they go along, some more successfully than others.
And that pace is not slackening off. Companies will continue to turn to their law firms in the search for some stability, security and reassurance in this increasingly complex cellspace. Lawyers probably know that they will not be able to depend on politicians to deliver that security through legislation. The question is how far they have grappled with the argument that no one is going to be able to provide that stability and to realise that perhaps that stability has gone forever.