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Beyond Our Control? Confronting the Limits of our Legal System in the Age of Cyberspace

By Stuart Biegel.
MIT Press, Cambridge MA, 2001 434 pp. and index.
U.S. $34.95 (cloth) ISBN: 0-262-02504-3
Reviewed by Curtis E.A. Karnow

Biegel cuts though much of the legal nonsense written about the Internet. As a lawyer and law school teacher, he has the background in traditional legal studies that many commentators do not. He knows enough about the Internet to discriminate among the various 'stakeholders' - the architects of code and online rules such as Cisco, Microsoft and AOL; the federal and state agencies seeking to ply their governance; international organizations, and the courts careening through the sometime useless legal precedent. He has followed in detail legal fights that have dominated our thinking in this area: e.g., security; copyright, MP3 and Napster; online pornography, and hate crimes. Biegel accurately maps the plain: his writing is straightforward (so, he has surmounted his legal training), and he knows the competing economic interests, 'cultural' biases and political agendae that swarm the regulation of the Internet. He knows that it is silly to argue for an unregulated Internet: the Internet has always been 'regulated'-- by governments, courts, ISPs, and those who create the technology and provide online access (356-7). The book succeeds as a survey of the key players and organizations, positions taken, and issues raised at the intersection of the law and the Internet.

But Biegel did not set out just to write a survey. He means his survey to support a framework for the analysis of legal disputes and their resolution. For each of the legal issues he picks (copyright, online pornography etc.) he determines if there is a consensus on the danger posed, whether the setting is unique to the internet (or by contrast parallels problem in the non on-line world). Then Biegel opines whether legal control might best be handled through the development of the common law (letting the courts develop the law), new statutes, international cooperation; and so on.

It is a weak presentation. Biegel himself recognizes throughout the book (53; 119; 328) that consensus is key: without it, any particular form of regulation is suspect; and his arguments for choosing one type of regulation over another are ordinary. His analysis begs the issue of consensus repeatedly, especially in the international context. His framework comes, of course, after hundreds of pages--very good pages-- illustrating the lack of consensus. Suggestions that legal disputes might be resolved by the development of an 'implicit social contract,' or international cooperation, or new statues, and the like, are constantly hedged with vacillating phrases such as "may well prove" "remains unclear" "many wonder..." "this may be" (146) "commentators suggest" (348), "may well prove" (326), and recommendations for "prudent" regulation (320) and the like.

In the end, Biegel is left with tautology: if a consensus emerges, then we'll have the basis for agreement. And so his optimism that something can be worked out on a given issue (320, 352, 364) appears baseless- ipse dixit , as a lawyer might say.

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