Regulating Cyberactivity Disclosures: A Contractarian Approach
Keith Sharfman · bepress Legal Repository · 1996
Users of an online service or operating system' providing access to the Internet often can monitor each other: 2 fellow users can discover each other's identities and can, at least to some extent, observe each other's 'cyberactivity.' 3 This 'disclosure environment' is beneficial insofar as the prospect of outside observation deters those who would otherwise engage in socially undesirable conduct 4 from so engaging.5 The capacity for monitoring, however, is harmful in that it chills some socially useful activities as well.'Another ill effect of monitoring is that it ext B.A. 1993, Johns Hopkins University; J.D. Candidate 1997, University of Chicago.The best example of this is "UNIX," the computer operating system most commonly used at universities to provide access to the Internet.The claim I make concerning monitoring is true for UNIX and is often true for other operating systems as well.2 For a description of this monitoring potential in the UNIX context, see Lawrence Lessig, The Path of Cyberlaw, 104 Yale L J 1743, 1748 (1995).In addition to being monitored by their peers, users can, of course, be monitored by system operators.Necessary monitoring by a single system operator whose identity is known (or can readily be discovered) by the user is, however, less surprising to the user and therefore less troubling than potential monitoring by a myriad of fellow users.For this reason, monitoring by system operators is not a concern of this Comment.' 'Cyberactivity' is my own term and is meant to connote the various reading, browsing, and communications activities in which a system user might engage.Harassment, slander, blackmail, and (verbal) assault are examples of undesirable activities that are facilitated when the perpetrator is cloaked in anonymity.Several commentators have pointed to these and other potential abuses that would be facilitated by an anonymity environment.See George P. Long, III, Who Are You?: Identity and Anonymity in Cyberspace, 55 U Pitt L Rev 1177, 1184 (1994).Lamentably, such abuses have actually occurred.See United States v Baker, 890 F Supp 1375 (ED Mich 1995) (dismissing charges against college student who allegedly made anonymous, electronically transmitted threats to injure, kidnap, and rape a female classmate).' Other possible benefits of a disclosure environment include: (1) the potential for businesses to identify likely consumers of their products at a low cost; (2) the potential for individuals to identify others with similar backgrounds, situations, predicaments, habits, or interests; and (3) the potential for individuals and businesses to learn from (either by copying or by avoiding the mistakes of) the "netsurfing" techniques of others.6 Such activities include the free exchange of controversial or unpopular ideas and freedom to associate with groups that espouse politically unpopular views.America's founders so highly valued these freedoms that their exercise is protected by the First Amendment to the U.S. Constitution.The Supreme Court has zealously enforced this protection, reviewing all government efforts to curtail these freedoms under a "strict scrutiny" standard.See NAACP v Alabama, 357 US 449, 461 (1958); Gibson v Florida