Wednesday, January 17, 2007

Guideline I: Examine the Basis for Legal Constructs

The first guideline for a general theory of law and technology I propose is that one must examine the basis for preexisting existing legal categories before extending them to new technology issues. Examples of the invention of the telegraph 150 years ago and the development of the Internet today help to elucidate this point.

The advent of the telegraph led to disputes over telegraph company liability for miscommunicated telegraph messages. Two different courts confronted this same issue in Parks v. Alta California Telegraph Co. and Breese v. U.S. Telegraph Co. Both courts concluded that the outcome hinged on whether a telegraph company was a common carrier. Common carriers, such as companies that transported goods, were automatically insurers of the delivery of the goods. The Parks court concluded that telegraph companies were common carriers, and therefore liable for the loss caused by miscommunicated messages; after all, telegraph companies delivered messages just like companies that delivered physical goods also delivered messages (letters). The Breese court concluded that telegraph companies were not common carriers, reasoning that the law of contract should govern, and therefore that telegraph companies were liable for no more than the cost of the telegraph in the case of a miscommunicated message.

The problem with each courts’ analysis lies in comparing the function of the new technology to the function of the prior technology as a basis for deciding whether to handle a new legal dispute under pre-existing legal rules and categories. A decision-maker, rather, should consider the rationale for the existing legal categories in the first instance, and then determine whether that rationale applies to the new technology. In the case of the telegraph, for example, the rationale for common carrier liability may have been to institute a least-cost avoider regime and reduce transactions costs (among other reasons). This rationale may not apply to telegraphs because they offered a new, easy, cheap method of self-insurance—having the message returned to the sender to check its accuracy.

The same problems can be seen in issues concerning how to resolve disputes brought about by modern advances in communication. Students of internet law are familiar with cases in which courts prohibited the sending of unsolicited email (spam) pursuant to the ancient common law doctrine of trespass to chattels. Courts got around the requirements of physical contact with the chattel, dispossession, and impairment by considering the electronic signals to be physical, band-width to have been dispossessed, and the computer to have been impaired. While one can understand a desire to limit spam, these holdings present the same problem discussed above. In extending a doctrine developed for dispossession of a physical chattel, courts failed to realize the implications of their decisions. The holdings, for instance, would render all unsolicited email, physical mail (junk mail), telephone calls, and even advertisements on broadcast television trespass to chattels.

Preexisting legal categories may be applicable in some cases, but the only way to determine this is to examine the basis for the categories in the first instance, and whether that basis is satisfied by extension of the doctrine. Legal categories (such as common carrier) are only that—legal constructs. Such constructs may need to be revised in the face of technological change.


Blogger Frank said...

Susan Crawford's recent talk at Harvard's Berkman center may be of interest--she talked about divergent views of the internet. The phone/cable incumbent providers of service want simultaneously to shoehorn it into their old business model, and to claim that they will be offering all manner of new ways of getting bits delivered.

Net neutrality advocates, on the other hand, tend to view this as a commodity service, while also de-emphasizing the old transportation network analogies.

1/17/2007 4:06 PM  
Blogger Frank said...

PS: I've heard the post office twice tried to regulate email, saying *they* were in charge of message sending.

1/17/2007 4:07 PM  
Anonymous Michael Risch said...

I agree generally about looking at why we have laws, but I'm not sure I follow the extension to trespass to chattels.

I thought the doctrine (though I could be wrong) has been - and still is - used to recompense those whose personal property is damaged through the intentional acts of others.

Is it so unreasonable that if a plaintiff can show actual harm (which may be difficult) then such actions can cause liability? Yes, there is a leap from physical property to virtual property, but a server rendered unusable by 8 billion email messages is no less unusable than a server hit with a sledgehammer.

1/17/2007 4:29 PM  
Blogger Lyria Bennett Moses said...

I agree, but I want to make two quick points.

1. The ability to do this depends on the "textuality" of the rule being interpreted. It is relatively easy in a "common law" context to interpret rules in accordance with underlying rationales. Hence your discussion of trespass to chattels. Harder (although sometimes still possible - depending on your theory of statutory interpretation) in a statutory context.

2. Much depends on the level of abstraction in which a rule's rationale is stated. If you go too general (eg "efficiency of commerce") you leave those who interpret rules in new contexts a lot of discretion.

1/17/2007 10:48 PM  
Blogger Gregory Mandel said...

In response to Michael Risch’s comment, my point was not that liability for spam is correct or not (I believe it depends on the context, as discussed below), but that one must consider the basis for legal doctrine before extending it to a new technology.

The problems with the use of trespass to chattels doctrine to cover spam (or with the manner in which the extension occurred) are revealed in the further application and extension of the doctrine pursuant to the initial spam decisions. I mentioned some examples in the main post—broadcast television commercials and junk mail. Another problematic example is the use of trespass to chattels by the lower court in Intel Corp. v. Hamidi to enjoin a former Intel employee from sending emails to current employees airing grievances about the company (a holding reversed on appeal).

One problem with the spam decisions lies in their failure to recognize the difference between use of an (ethereal) email system and use of physical property. This technological difference matters for the legal categories into with the disputes should be placed. The apparently appropriate spam concerns are not primarily over the use of physical property (computers), but over inappropriate interference with business and customers. The legal solution to this new type of problem would have been better served by recognizing this difference. Such recognition would provide for a distinction between seemingly acceptable unsolicited communication (television ads or Hamidi’s emails) and unacceptable unsolicited communication (Mr. Risch’s example of spam rendering a server useless).

1/18/2007 10:14 AM  
Blogger Gregory Mandel said...

I agree with Lyria Bennett-Moses’ first comment—a decision-maker’s ability to follow this guideline (as well as the others I’ll propose) may be constrained by the institutional context in which the decision-maker acts. Ms. Bennett-Moses’ second comment raises interesting and complex issues of institutional structure. We want to give decision-makers some significant degree of latitude to respond to technological advance in appropriate and context-dependent manners, but also want to be mindful of protecting against abuse of discretion, a risk that increases as the amount of discretion increases.

1/18/2007 10:24 AM  

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