Law and the Webmaster: 1998 and 1999
By
Cyberlaw Editor

One of the best new legal resources on the Web is The Filter, the online newsletter of Harvard Law School's Berkman Center for Internet and Society. For its first issue of 1999, the Filter's editor asked several people to identify "the single most profound event or decision in 1998 which will fundamentally change the landscape of Internet law and policy in the next millenium? Curiously, the answers given focused less on specific cases decided by the courts or statutes passed by Congress or a state legislature than on what might be perceived as non-legal issues or developments. Some examples that were given:

"The success of eBay. I think it is mostly seen a stock market phenomenon. Some deplore, others exploit. Everyone seems to have missed to essential point; eBay is to the new Internet economy what bulletin board and chat rooms were to the early Internet community. Many-to-many is an economic model too, an older one than consolidated multi-nationals acting as informal cartels. It'll explode out of the hobbyist phase soon enough, and the FTC will be right where the FCC is now."

"The jumpstarting of online commerce in 1998"

"The announcement that the Iowa Communications Network reaches every one of the state's counties and functions as a long distance phone company within the state for its authorized users."

What will be the legal issues that take center stage during the next year? There were surprisingly few "landmark" judicial decisions during 1998. Landmark cases are landmark cases because they attempt to make definitive statements and establish a legal standard that will last for some time. There were cases last year dealing with filters in libraries (Loudon County), privacy (Geocities) and other issues raised by increasing activity in cyberspace (see the list of cases prepared by Attorney Eric Goldman) but it is difficult to decide anything with finality when the online environment is changing so fast and so often.

Perhaps the most significant legal event of 1998 was not a case but the release of the Starr Report, a document that would have violated the original Communications Decency Act and a document that is likely to be a point of reference in the future concerning the possible regulation of sexually oriented content.

As we look to 1999, and if we look beyond the Y2K cases that may or may not occur, what is likely to receive the most attention? Perhaps issues that have not yet surfaced in court decisions. One may be the application of the Americans with Disabilities Act to Web sites and, if the Act is relevant, whether there are First Amendment issues that take precedence over ADA? What is most likely in 1999 are cases that arise out the commercial growth of the Web. 

If Justice Oliver Wendell Holmes was correct that "the life of the law has not been logic; it has been experience," online commerce is changing our online experiences, our economic relationships, our patterns of disputing and our processes for settling disputes, and accelerating our need to adapt old institutions and begin thinking about developing new ones. Selling things online is becoming easier and easier but it is also likely to bring with it a variety of questions that may cause Webmasters a few sleepless nights.

Ethan Katsh is author of Law in a Digital World (1995) and Director of the University of Massachusetts' Center for Information Technology and Dispute Resolution