Navigating a Free Net

The Fourth Amendment, as we discussed in class, has a place-dependent quality. It is this place-dependence, in part, that has defeated its application to the digital landscape of today. The unbounded and interconnected nature of the digital network of today challenges conventional law enforcement notions generally. What, if any, might be a legitimate role for law enforcement in a state of freedom?

Imagine the positive outcome in the freedom/totalitarianism binary – the net is a single landscape – no firewalls that fence off people from certain websites, no nets which trap users who add or view content that is unacceptable to a sovereign regime. This outcome is not improbable or far-fetched. Indeed it seems quite natural in a way, since trying to place restrictions on portions of the web in a certain jurisdiction is like trying to slice up the sky, or to bottle a ray of sunlight.

Yet it is hard to resist the urge to compare the net to physical spaces, to superimpose on it existing conceptions of society. Perhaps the net should be conceived of as a collection of completely privatized “roadways” “storefronts” and “homes.” If so, any sort of protection of copyrighted works or any potential cybercrimes might be handled on a completely private basis, with minimal-to-no involvement from conventional state-based law enforcement. It is up to individuals as well as web site and database hosts, and perhaps search engines to figure out the security precautions they take, and the individuals, if any, they wish to exclude.

The possible downsides of this scenario might be an increased segmentation of the net, and perhaps a closing down of certain resources if their hosts do not feel adequately protected. This scheme of private control might well create a more “free” though a less predictable environment than is the case today. How will the government catch criminals on the internet? Perhaps private actions brought by aggrieved individuals might be a partial solution. It seems necessary, from a public policy perspective, to curb things like fraud, or drug deals, or child exploitation that might take place on the internet. However, there are at least two constitutional considerations based on what we have discussed in class so far. First, it is crucial to steer clear of infringing on First Amendment territory. For this consideration, we must develop a distinction between what is “action” and what is expression in a virtual reality. Is anything that happens on the net really “real” in a physical sense? Should this matter if major financial transactions, for example, take place in a virtual reality?

Second, if we adopt the schematization of the internet as a series of buildings and roads, can we then still rely on Fourth Amendment principles to protect the “home” like structures? What about the “storefronts”? If we allow the state to comprehensively police the “roads,” this may again undermine the notion of a free net, and pretty much take us back to the surveillance status quo of today. Will some of the roads be “private property?” That possibility may lead to the sort of “federalized” internet we discussed in our last class session, especially if everyone avoids the public road that is the leading search engine.

Law enforcement are not the only players we need to keep in mind. To make the general public the “owners” of the internet, and to place law enforcement activity closer to the periphery, there should be a greater distribution of knowledge. Imagine driving a car on the highway without having taken any driving lessons. This terrifying scenario illustrates how many of us interface with technology and the internet without understanding the implications of our digital footprint, and without taking the appropriate actions to protect themselves. We are being watched, however, by police cameras and speedometers, and might be flagged down and have our vehicle searched at any minute. Users can really be “steering” their journey through the internet by understanding what exactly happens when they share a photo or click on a link, and by taking the quiet roads if they choose.

Ultimately, consideration of these issues suggests that allowing law enforcement in beyond the perimeters of the net, while still preserving a free net, requires a couple of important initial steps. First, we need a vocabulary, which I have clumsily attempted to articulate here, for the various cells and arteries that make up the digital network. Second, regulations need to be carefully tailored to this new vocabulary. Antecedent to these steps, in turn, is a very strong understanding of the way the internet works, and of security measures, by lawmakers; to have knowledgeable lawmakers, there must also be a more knowledgeable body of users.