Self-regulation and other kinds of nongovernmental control have always been practiced on the Net. Methods for arbitration of online disputes, such as the Virtual Magistrate, have been devised, though not widely used. Such nonjudicial dispute mechanisms require both a set of rules to apply to a dilemma submitted for resolution and an enforcement mechanism.

One source of rules comes from accepted "netiquette" (Net-etiquette). The concept of netiquette is nothing new; various forums have their own accepted standards of behavior. Many long-term Internet users are familiar with rules like: (1) do not post a "how do I get off this list" message to a listserv and (2) do not send junk email or post advertisements to multiple usenet news groups. But, what happens if someone violates a rule of netiquette? Often nothing. This is not always the case, however.

Self-Help

Even as politicians and court systems descend on the Internet, applying traditional legal remedies to some online offenses, another type of enforcement has also grown in prominence: so-called self-help remedies, extra-legal justice dealt by either individuals or entities other than traditional governments. If a violation of a community-based rule is substantial enough, the online community, or a member acting with or without its support, may take action against the offender.

Self-help remedies are popular for a number of reasons. They are quick, cheap, and readily available to people with adequate knowledge; some only require a software tool instead of a lawyer. Moreover, self-help solutions often avoid the inconvenience of national borders and political jurisdictions. And such remedies are frequently very effective, or at least more effective than traditional legal means. Finally, self-regulation need not require an alternative dispute resolution procedure to provide satisfaction.

However, many such remedies are against the law in the United States and elsewhere. Extreme self-help measures are in certain countries motivating changes in the law to ensure the illegality of particular forms of vigilante justice on line.

Embarrassment

Self-help remedies range from mild to extreme. One form of punishment that has been used for centuries is humiliation: someone who breaks a code of ethics is set up for public ridicule. Puritans in the "New World" placed offenders in the pillory and made adulterers wear a "scarlet letter." In the digital world, the equivalent might be posting a junk emailer's real name and address on the Internet or adding the offender to a "blacklist." Similarly, usenet news groups devoted to a particular "net-kook" are a long-standing tradition.

Gathering more attention, however, are an increasing number of web sites devoted to complaints about particular organizations, on line or not. For the first time in the history of communication, anyone can reach an international audience of millions of people for only $19.95 or less a month. If a company treats its customers unfairly, or engages in business practices that someone considers unfair, it may find itself with unwelcome international exposure.

How does the law address such reprisals? In many cases, the U.S. law, for example, responds with indifference, because there is nothing illegal about the site operator's actions. While the target of negative attention may object, holding someone up to public ridicule is generally not illegal, as long as the attempt does not amount to an invasion of privacy or similar sort of defamation, as is alleged in a suit filed in Virginia over "The Police Brutality Page." A similar sort of claim was made in a suit by a company about a page that the company claims was created in order to drive down the company's stock price. Interestingly, in the United States, trademark law has become a weapon of choice for companies trying to squelch people who engage in this sort of self-help remedy, though often the claims of infringement are unfounded. For example, the Zero Micro domain name, micros0ft.com, was suspended because of complaints by Microsoft, though the Web page that provoked the controversy is now available at http://micros0ft.paranoia.com/.

Filtering

Another form of self-help remedy is ostracizing the offender from the community. In the digital context, ostracism can be accomplished by filtering the offender's messages or packets. If someone publishes online content that the manufacturers of filtering software find unacceptable, the author may find the message blocked from receipt by the de facto community of those who use the filtering software. In essence, the community authorities decide that the offender's voice will not be heard in that particular community. Hence, the software's nickname: "censorware."

Problems may occur, however, when membership in such communities is involuntaryÐwitness the lawsuits filed or threatened in the United States concerning the use of filtering software in schools and libraries. Being part of such a forced community is analogous to being subject to parental authority.

On the other hand, there are Internet communities that choose to have their messages filtered. Such a voluntary community may consist of all a service provider's users, for instance, those who agree to comply with America Online's terms of service, or who choose to use a particular Internet service provider because of the provider's stance on blocking junk email or certain news group content. The company becomes the arbiter of taste and decorum for the service's users, who have contractually accepted that state of affairs. Any user who objects can seek a provider with a different view of "parenting." Such blocking has even survived legal challenges in the United States from those who wish to force their messages into an unwilling community. Both America Online and CompuServe have won lawsuits against commercial emailers, successfully claiming that the providers' systems are private property from which certain people and their messages may be excluded.

Finally, the community ostracizing the speaker may be a formal geographic community. Countries such as those in Asia or the Middle East with national proxy servers to filter Internet traffic are taking matters into their own hands, rather than punishing violators after the fact. Just as America Online may determine what it thinks is appropriate material for its "citizens" to see, so may some countries. A more difficult question arises when one country wants to prohibit conduct that originates in another country, and is willing to look beyond the intergovernmental political structure for redress of its grievances. For example, Bavarian authorities have attempted to prosecute the head of the German office of CompuServe for delivering content that the Bavarians deem inappropriateÐmaterial accessible world-wide through usenet news.

Electronic Aggression

In some cases, self-help may take the form of aggression. There have been a number of alarming examples on the Internet of aggressive self-help remedies for perceived wrongs. In one such case, Eugene Kashpureff was recently extradited from Canada back to the United States to stand trial for various computer crimes and other violations. Kashpureff is one of the founders of the AlterNIC domain name registry. Upset that Network Solutions, Inc., which runs the InterNIC domain name registry, claimed a proprietary right in its database of domain name registrations, Mr. Kashpureff decided to show the company that the "property," initially given to it, could easily be taken away. As a political statement, Kashpureff routed traffic intended for the InterNIC's Web page to the Web page of his own organization. There is little doubt that Kashpureff's political statement sprang from genuine outrage. Nonethless, others saw his actions as those of someone solely motivated to save his own business by any means necessary. U.S. law is likely to ignore Kashpureff's political motivation and simply find that his actions constitute multiple felonies.

The Dangers of Self-Help Remedies

Differences in perspective demonstrate the problems inherent in self-help remedies. Is it appropriate for a group with a certain political perspective to conduct a denial-of-service attack on a service provider that hosts a publication devoted to an opposing political viewpoint? Recently a member of a group opposed to the views of a publication carried on a PeaceNet Web page conducted a denial-of-service campaign that blocked access to all of PeaceNet as well as to its service provider. What if the silenced viewpoint is one you don't approve of? According to U.S. principles of free speech, anyone has a right to express his or her viewpoint, as long as the expression does not cause harm. Though what constitutes harm is, of course, debatable, the law affords certain minimum levels of protection even for activities that some may consider harmful. With a self-help remedy, any behavior can be subject to a "penalty" imposed by an offended vigilante, and there is rarely an appeals process.

A Cooperative Approach

If the Internet is to be a truly fair and open means of communication, self-help and nongovernmental remedies must be restrained, and governmental remedies must be cooperatively "interfaced." With regard to restraint, whereas a Web site established to spread the truth about an offender is an appropriate remedy for an individual to employ, a denial-of-service attack against an unwelcome voice is not. On the other hand, it is acceptable for a service provider to rule its community with an iron fist, as long as the community members have consented to the provider's governance. Regarding international cooperation, a less restrictive governing body may have trouble when community members' content reaches out into the sphere of a more restrictive government. It is necessary to address these issues of intergovernmental conflict cooperatively. Either some governments need to defer to others, or intergovernmental mechanisms for dispute resolution must be established to accommodate differences in regulation. Some have even suggested a sort of "maritime code" to apply to the Internet as a unique jurisdiction. Communities should help each other support their diverse principles, not help themselves propagate their own principles' to the exclusion of other standards. This coordination may require problem-solving that is slow, costly, and inefficient, involving courts and lawyers, but should at least produce solutions that are consistent and fair to those who, inevitably, have differing views.

__________ David J. Loundy is an attorney at the firm of Davis, Mannix & McGrath, 125 S. Wacker Drive, Suite 1700, Chicago, IL 60606-4402 (phone 312-332-0954). You can reach him by email at David@Loundy.com or on the Web at http://www.Loundy.com/. To gain access to the listserv for his Technology Law column, send a message reading "subscribe" to Loundy-request@netural.com.

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