More than fifteen (15) years ago, I published an article on resolving online disputes through a “cybercourt.” Since then, many have come to use the term to mean a variety of topics. Some it appears have used the same title for their article(s). In any case, I wrote and presented this article on virtual resolution of differences speaking of a “cybercourt” in 1995. For purposes of preserving the content and republishing what, to some extent, may remain a viable approach to resolution of differences, I publish the paper here on my blog.
Prepared for delivery at the 1995 Annual Meeting of the Western Political Science Association, Portland, Oregon, March 15-18, 1995
Copyright 1995 Charles L. Mudd
In recent years, civil liberties have been discarded in favor of cleaning up the electronic highways of “hackers” and computer criminals. Despite the efforts of interest groups, no national policy has emerged which would both guarantee Constitutional rights in cyberspace and allow law enforcement to deter criminal activity. At the same time, overcrowded courts make the traditional legal system an unattractive and expensive method by which to resolve the increasing number of disputes arising out of interactions within cyberspace. Thus, an alternative method by which to resolve cyber disputes is essential for the progression of the information highway and the taming of the electronic frontier. The suggested alternative forum is Cybercourt. Cybercourt, being a construct of cyberspace, would be a forum in which members of the cyber community may resolve disputes and obtain justice. Cybercourt would also deter criminal activity by imposing sanctions on this criminal behavior. Using software currently available, and utilizing representatives already within cyberspace, Cybercourt is the most efficient and modern method by which to resolve cyber disputes.
Cybercourt: A Virtual Resolution of Differences
An Alternative Proposal for Law and Order in Cyberspace
The explosion of interest in computers and computer networks (the Internet in particular) during the early 1990s has brought with it a variety of phenomenon. Some of these phenomenon are positive outcomes of improved technology. Other phenomenon have less virtuous origins and consequences. As an increasing number of people begin to use cyberspace as a world in which to meet people, conduct commerce, and pursue alternative “Cyber” personalities, there will continue to be an increase in “cyber” disputes. These disputes may involve both criminal and civil complaints. At present, there is no systematic method for resolving such disputes within cyberspace. In line with those who suggest the usefulness of arbitration and settlement negotiations, this article suggests such a venue in cyberspace. In other words, this article describes a system termed “cybercourt”.1 Part I of this article presents the need for such a system. Part II is an outline of the proposed Cybercourt system and a recommended procedure for implementation. Part III is a discussion of both the feasibility of such a system and the possible roadblocks which might be encountered.
I. The Need for a “Cybercourt”
Computer technology has advanced at quantum leaps. Computers have become more advanced with each passing month. The amount of information in CD-ROM format continues to grow. The possibilities within cyberspace have become unbelievable. One is now able to speak to an individual in real-time through Internet-Phone technology. The potential for electronic commerce continues to expand.2 Perhaps, the most visible phenomenon is the growth of information (and disinformation) avaliable on the Internet. This near instant access to information on almost every subject has far reaching possibilities.3 Citizens of the world are able to utilize and understand this information in ways unheard of just a decade ago. This will inevitably increase productivity and efficiency in a number of industries and businesses. Increased productivity will theoretically yield higher profit margins and a more stable economic system.4 In addition, the near instantaneous exchange of information between two or more locations will provide benefits in the fields of medicine, science, and academic research.5 These benefits can lead to improvements in the quality of life for all inhabitants of the world.
Unfortunately, the activity which has accompanied this explosion of interest in computers and computer networks has not been entirely virtuous. Indeed, there has been an increase in the number of computer crimes and a corresponding increase in the attempts to punish computer criminals.6 This has led to a chaotic and unpredictable effort on the part of law enforcement agencies to wipe out computer “hackers”7 and other computer criminals. While law enforcement agencies have made significant improvements since the first efforts at “hacker” crackdowns, their ability still lacks an aura of expertise.8 As a result, civil liberties continue to be discarded in favor of cleaning up the electronic highways. This is not altogether the fault of law enforcement agencies. They often are unprepared and ill-trained for the capture of computer criminals and the handling of related evidence.9 Unfortunately, there has yet to emerge a coherent and rational policy to address this growing problem.10 This necessity of such a proposal is validated by the overflow of state and federal courts in the United States and the increase in cyber citizens. This increase is inextricably tied to the increase in computer crimes11 , both complete and inchoate12, and cyber civil disputes.
One of the circumstances which supports the need for an alternative forum to resolve disputes arising out of cyberspace is the congested nature of the American Court System. This congestion or “litigation explosion”13 is found primarily in civil disputes.14 However, disputes involving computer crime may often find themselves in civil court. Similar to other crimes, victims often feel the need to pursue a civil dispute in order to obtain compensation for their injuries.15 Courts have often allowed restitution claims against those guilty of computer crimes in order to compensate a victim for his or her loss.16 Computer criminals have also been held liable for investigative costs incurred in uncovering a fraudulent scheme.17 Beyond criminal related civil disputes, the growth of electronic commerce, information availability, telemedicine, and other technologies have resulted in the potential for an increase in civil disputes in cyberspace. The congestion of the court system is often an unsatisfactory avenue for dispute resolution. Once a complaint is filed, it may be years before a trial is heard. In addition, during the interim, attorney fees and other costs will impose a significant burden on the parties involved in the dispute. An efficient and affordable alternative is needed in order to address current disputes in cyberspace as well as plan for the future as the cyber community continues to grow.
It is prudent to observe that many people believe that the court system and other dispute processing systems are in trouble.18 One of the problems causing this trouble is too much litigation. There is no doubt that our society has become litigious and looks to the court system for resolution of our disputes. This in itself is not an evil which needs to be dispelled or exorcised. Rather, it is an indication that people place some trust on the judicial system and look to a system to resolve disputes rather than taking matters in to their own hands. However, litigation imposes high costs on both the litigants and taxpayers.19 If it is possible to avoid these inherent high costs and provide a reasonable and reliable means of resolving disputes, it would seem the alternative could provide the benefits of the traditional court system while eliminating the detriments of the same system. However, any alternative forum for dispute resolution needs to be targeted for a specific area of law.20 It is for this reason, that the proposed Cybercourt be initially utilized for crimes and disputes isolated to incidents in cyberspace. That is, the Cybercourt would be limited to electronic and informatics law.21
Cybercourt could significantly reduce the costs to both the litigants who utilize the forum and the taxpayers who would otherwise be supporting the traditional court system in which their disputes would be litigated. First, because the forum itself is within cyberspace, access can be provided to every individual who has a dispute through his or her own computer. This would not only reduce the cost of utilizing a courtroom and the employees who would maintain the courtroom, but also significantly reduce costs of travel to and from traditional forums.22 At the same time, travel time for participants would be significantly reduced.23 Second, the costs in hiring and retaining lawyers will be reduced as well. Trial costs to attorneys would be reduced thereby reflecting in attorney’s fees.24 Third, in disputes which require a jury, the jurors will have the same freedom as litigants. That is, they will be able to serve from home and not incur expenses nor loss of income. Therefore, jurors need not be paid for their service; serving as a juror would be part of the agreement in using the networks. Finally, costs to taxpayers will be reduced. Although there will be costs associated with maintaining the Cybercourt, they will not be as much as the costs were the same disputes to be resolved through the traditional court system. The nature of the electronic transmissions create a permanent document without the need for court reporters.25 There will also be no shortage of rooms in which to hold a hearing.26 These reasons suggest the viability of an alternative to the traditional court system if such an alternative can be more efficient and cost less than the current status quo. Cybercourt is such an efficient and cost-saving alternative. When the potential which Cybercourt has to offer is combined with the current and future state of computer crime, there is nothing but an imperative to implement the proposed alternative, Cybercourt.
So, what is this cybercourt? How will it operate? Who will be those who sit as judges? The answers to these questions follow. However, the theory behind the cybercourt system is one of efficiency. This efficiency is economic, political, practical, and social. The economic efficiency would be evident in the minimization of costs both to the court system (i.e. taxpayers) and the litigants, or parties in the controversy. The system would be politically efficient because it would allow experimentation by various legislative bodies on efforts to control cyberspace and its inhabitants before rewriting regulations and laws to cover related cyber-offenses. In other words, cybercourt can be used as an experimental environment for lawmakers, politicians, cyber-citizens, academics, and more. Cybercourt’s practical efficiency arises out of the accessibility to those policing cyberspace, the inhabitants of cyberspace who have been violated, and the violators charged with either civil or criminal misconduct. Finally, it will be socially efficient in that it will encourage the resolution of disputes through an environment from which the dispute arose and encourage peaceful and quick solutions.
Cyberspace is an environment which warrants its own judicial system. When this article first was written, response to such an idea in both newsgroup and real-world discussions suggested cyberspace as an enigma. In other words, cyberspace was suggested to be an environment which categorically fit into existing jurisdictions. Today, we realize these supposed jurisdictional lines are not so clear. Courts have attempted to place real-world jurisdictional boundaries and community standards on cyberspace.27 This simply must not be. Cyberspace is a phenomenon beyond real-world boundaries. Indeed, such a place can provoke
many of the same questions about this place that you ask about any place. Lawyers might ask, for example, whether it is public or private…An architect might ask whether the software and hardware, the architecture of this place, is conducive to sharing ideas. A mediator might ask whether one can build trust in this kind of place…It seems to me that when you have created an environment in which these questions can be asked, you have created a place, or something that can be spoken about as if it physically existed and we were all there….As for…the choice of law question: If cyberspace is a place, wouldn’t it have its own law, Cyberlaw?28
Similarly, if cyberspace is a place, wouldn’t it have its own court system, Cybercourt? These aspects of Cybercourt’s efficiency form the basis on which this proposal is founded. This multifaceted efficiency model is the prolegomena to a new judicial order in cyberspace and the electronic frontier.
The idea of a Cybercourt is not entirely new. At least, utilizing electronic media for bringing together individuals for a specific purpose has been practiced for some time. Many of the professional networks (America Online, GEnie, and Compuserve) have message bases which are specifically targeted for specialized interests. However, a unique experiment was conducted in the summer of 1992. This experiment involved a group of individuals in the legal field who joined and contributed to a conference on the subject and future of electronic mail.29 The unique factor was that the conference was conducted via electronic mail.30 The results suggest that utilizing electronic media and cyberspace as forums for resolving disputes is both practical and efficient.31 Specifically, e-mail “has great potential as a mechanism for intra-organizational dispute resolution or group problem solving.”32 The use of e-mail simulations were also suggested in creating an electronic community forum whereby law schools could address sensitive issues. Such issues might include grievances students have on the way in which the school operates or a particular class is run.33 Rather than a method by which individuals are attacked, such programs could foster improvements academically and administratively.34 Comments were offered as to the effectiveness of such a system in reducing costs of the legal system and increasing the benefits. One individual was not sure whether the immediate future could produce an “electronic court or formal arbitration” but that “there will be no reason why a formal court procedure cannot eventually be devised which will be appropriate for ‘cyberspace.'”35 There is no reason why such a procedure cannot be devised. This is what this article proposes.
A. The Foundation of Cybercourt
The location of Cybercourt will be in cyberspace. Each site location located along the Internet (or other networks) can establish a Cybercourt location by using software currently available. This proposed software environment is what is used to create MUDs or Multi-User Dimensions.36 Typically, these dimensions are used as recreational environments for citizens along the information highway.37 Users of such dimensions log on and explore the particular dimension they have chosen to visit. Some of these dimensions are designed to fit a particular fantasy world motif (i.e. some are dungeons, space stations, etc.) The system operators of the local MUD are able to design the foundation of this motif to their specifications. Users are able to build upon this foundation and add unique, individual characteristics. One can “walk around, chat with other characters, explore dangerous monster-infested areas, solve puzzles, and even create…rooms, descriptions and items.”38 Each MUD has an unique Internet address which is used to enter the chosen MUD domain. Theoretically, anyone connected to the Internet can attempt to access the particular MUD.39 Each MUD can implement procedures to prohibit entry to those who are undesirable and allow entry to those who have met the minimum qualifications.40 All of this is accomplished through software which can be run on particular computers and servers. It is in this realm of MUDding that Cybercourt would be established using this software.41
Each domain or site42 location would establish a Cybercourt in its computer system to handle complaints and violations within its domain. Violations and complaints would be based upon a set of policies, rules and regulations which the local cyber community has agreed upon as controlling in the local environment.43 Included in such a policy and use of the computer network would be an acknowledgement of the Cybercourt system and potential participation in its mechanations. Practically, it is not possible to have all of those in a community as large as a university to sit as judge or jury on a particular dispute. Rather, the theory behind Cybercourt would necessarily focus the will of the community by using representatives of the diverse groups who form the cyber community.
These representatives will perform three particular functions. First, there will be representatives who are charged with creating and updating policies, rules and regulations which control the local environment. Second, representatives will be chosen to sit on a panel charged with hearing and resolving disputes. Finally, representatives will be given positions which insure the operation of the system, including the enforcement of the policies adopted. The similarity to the tri-partite system of government utilized in most political domains in our country is not to go unnoticed. It is particularly this system which will be a base model from which to build and redefine the system which will govern cyberspace and the information highway. However, each of these functions is distinct from its real counterpart.
The representatives charged with drafting and publishing the local policies, rules and regulations will necessarily represent all groups indicative of the local population. While the local community may decide to implement their own method for electing or appointing representatives, it is suggested that the ‘legislative’ body be elected by those in each particular group. However, it is encouraged that the individuals elected to such a position hold some degree of experience with computers and cyberspace. Ideally, this will hold no problems for those concerned. That is, petitions and elections will be held within cyberspace only those with access may be elected. Initially, it is suggested that one individual be apportioned for each 1,000 individuals. This body of representatives would meet within cyberspace in the same environment created for holding Cybercourt.44 The initial objective of this body would be to adopt a set of policies, rules and regulations for providing stability in their cyber community. Included in this stability are protection of individual rights, the efficient operation of the system, and the security to protect the system.45 While each domain would be given the latitude to create their own policies, it is suggested that they adopt as a pattern a uniform set of policies. Currently, organizations have held conferences and other meetings to create a set of ethics and regulations to promote law and order in the electronic frontier.46 Use of the efforts already put forth by these groups would be an efficient and practical way in which to begin. It is necessary that these policies, rules and regulations encompass all of the potential cybercrimes identified above.
The representatives on the judicial panels should be appointed by those who are in control of the operation of the local cyber community. In addition, a consenting majority of the legislative representatives would be necessary for each panel member to acquire his or her seat. In this way, there can be background research completed on each of the candidates and these candidates will exemplify the policy and demeanor which is valued in the community. However, there must be at least one panel member who represents each of the local groups who form the cyber community. Ideally, one panel member for every ten thousand individuals would be the basis on which to form these panels and insure adequate representation. This panel would be charged with hearing the disputes which arise out of the policies adopted by the legislative body. It would be necessary for them to hear both sides (assuming there are only two) of the dispute and adequately distribute justice in the manner best suited for the local community. Sentencing guidelines should be adopted by this body in conformity with the national guidelines promoted by the Cybercourt Institution.47 In this way, no particular locality (jurisdiction) will be overzealous nor too lenient in the sanctions they issue to those convicted of crimes or found guilty of civil violations.
Finally, those who are in position to insure the operation of the local computer system and cyber community are those in an executive or administrative function. These individuals will more than likely be members of the Computer Department of the locality. The specific locality can find those best suited to adopt the responsibilities and fill the positions of this necessary function. Security measure should be as tight as possible. Those who are charged with insuring the security and policing the cyber community can make every effort to do so as long as their behavior does not move beyond the bounds of the Constitution and the policies handed down from the Cybercourt Institution.
As each domain establishes its local cybercourt system, the number of cybercourts will grow. As this growth continues, each of the local cyber communities will feed into a more comprehensive system. That is, for each region, there will be appeals courts in the Cybercourt system. Initially, it would be most fruitful to utilize the system adopted by the federal government in dividing the country into districts and circuits which feed into the Supreme Court. Each of the local cybercourts would feed into an appellate division, similar to the federal district courts. Appeals from such Cyber-district Courts would feed into a circuit division, similar to the federal circuit courts. There will then be a Supreme Cybercourt which each of the Cyber-circuit courts will feed into. Appeals from this Supreme Cybercourt would be taken to either state or federal courts as is applicable to the situation and parties.48 For purposes of cyberspace, citizenship will be recognized as the system or domain from which a user emanates.49
In order to insure a smooth transition to such a comprehensive and novel approach to cyberspace and the information highway, it is suggested that the initial stages proceed incrementally. In this way, the problems and difficulties encountered may be addressed before they are spread throughout cyberspace out of control. The first stage is to initiate the project at one institution or domain. The model MUD program would be designed and constructed by the Cybercourt Institution and the institution chosen to be the Alpha site. The program would be similar to a “Halls of Government.” In light of what has been outlined above, there would at least be three area in the MUD which can be accessed: the legislative, judicial, and executive or administrative. In addition, it might be helpful to program a “lobby,” a “clerk’s office,” and a “library” into the Cybercourt environment.
The “lobby” would be the initial room in which users who log into the Cybercourt environment find themselves. In this room, there will be descriptions of the various aspects of Cybercourt and explanations on how to proceed further. The “library” would include documents relevant to the local community and other material on the information highway. The “clerk’s office” would be where those who have a complaint or need to file suggestions, etc. can accomplish such ends. Others have suggested the formation of the network “equivalent of filing offices, containing contract, UCC and land record filings, where…contracts can be recorded in a Read-Only format accessible by those with appropriate clearance…..deeds, probated wills and liens public; contracts, trusts, wills of persons still living private…”50 While this is not advocated here at this point, the general idea is similar to the function a “clerk’s office” and “library.”
However, before arriving at such a point in time, the Alpha site must construct the program and utilize members of the local cyber community to test the program. When the program is in a ready state, the local cyber community would appoint and elect representatives to the three bodies of the Cybercourt system. It would then be the duty of the legislative body to deliberate and establish a standard policy to be controlling of their community. This policy must be made available to all who use the local system and those who access the local system through legitimate means.51 It may even be beneficial to adopt a contractual approach between being a member of the domain and agreeing to the policies set forth.52 The judicial body would follow by establishing sentencing guidelines. Finally, the executive body would establish such procedures as they deem necessary.
At first, the Alpha site would only here complaints which involve local participants. In this manner, the system can be tested in full operation mode. However, problems arise where an individual originating from a foreign site is violating the policy established at the Alpha site. It is at this point where cooperation is needed between domains and agencies of state and federal governments. If an individual from a foreign site violates a policy which the local site has adopted, it is necessary to provide some incentive for the violating party to participate. Three suggestions are offered. First, the foreign site, upon petition from the local site, can approve or disapprove temporary suspension of the violator’s account and access. On the other hand, and perhaps more civil, the foreign site can explain to the violator that they have a choice to either submit to the local site’s jurisdiction or have access removed unconditionally. Therefore, if one is acquitted or charged with a minor offense, his or her access need not be terminated or suspended (access will be needed to arrive at the local site.) Second, if an individual fails to place him or herself in the jurisdiction of the local site (at which the violation occurred), the state or federal government will become involved. That is, either there will be some arrangement with a “real-world” enforcement agency by which the violator is charged with real-world crimes (one of which would be failure to abide by Cybercourt policy) or the Cybercourt and the violated individual (or group) bring suit against the individual in civil court. There is no reason both can not be done at the same time. Third, if the violator chooses not to place him or herself in the local site’s jurisdiction, the “trial” will proceed against the violator and a default judgment would be entered. Enforcement of such a default judgment would also require collaboration between “real-world” agencies and courts.
Hopefully, as the Alpha site becomes proficient and the prgram eliminates many of the bugs likely to be found, the program can be adopted and implemented at other locations. These locations would be strategically located throughout the United States. It would be logical to establish one Cybercourt in each circuit before expanding much further. These Beta sites would follow the same procedure as that of the Alpha site. Collaboration among the Beta sites would move the system toward a more universal approach and enable the sites to wield more authority. Success among the Beta sites would suggest establishing a Cybercourt in each of the districts. As this continues, eventually the Cybercourt system will be the ideal which has been advocated in this article. When this is realized, it is possible that the National Information Infrastructure will have evolved enough to combine both systems.
The future holds in store a multitude of fascinations for all of us. One can imagine Cybercourt becoming a virtual reality where we are able to see ourselves in the court rooms and antechambers. This would be a visual extension of the system envisioned in this article. However, it would only be as successful as our moralities and prejudices allow. One of the many advantages to the proposed system is that race, national origin, sexual orientation, “voice modulation, looks, grooming, posture, statute, dress,” and other classifications on which people are judged become mute.53 It has been suggested that this quasi-anonyminity and “levelling” effect “offers the potential of creating an electronic forum for allowing open discussion of otherwise sensitive issues.54 When I communicate with an individual in cyberspace I am not concerned with what they look like but who they are. It is this beauty that risks being lost when visual stimulation is re-introduced. Until we are able to control our own prejudices or control their effect on our judgments, we should be satisfied with the system proposed. In this system, external factors which should have no part in deciding one way or another in a dispute will be eliminated.
IV. Toward a More Efficient and Just Cyberspace
The system that has been outlined above is an alternative to the established manner in which crimes and civil violations in cyberspace are handled. In an age where law enforcement agencies are learning how to police a system in which they are unfamiliar, and the present court system is overwhelmed with full dockets, an alternative which has the potential of establishing order on the new frontier while enabling those bodies to “catch up” should receive considerable attention. It is hoped this article will generate enough interest in the proposed system to warrant the initial stages suggested.
1 This article was originally presented to the Western Political Science Association at the 1995 Annual Meeting. Since then, I have substantially rewritten and supplemented the article for publication purposes and to make it again relevant, today, in 1997. The fact that the issue of a “cybercourt” has not been substantially addressed nor outright dismissed suggests the continued relevancy of such a discussion. Particularly, the discussion of “Virtual Magistrates” since this article was presented in 1995 suggests the viability of such a system.
3 While there are many guides to the information available in cyberspace, the book The Internet Yellow Pages provides directions to a wide variety of information on almost every subject. Hahn, Harley, and Rick Stout. The Internet Yellow Pages. Berkeley: Osborne McGraw-Hill, 1994. There are also several Yellow Page search engines on the World Wide Web (ie http://www.iypn.com/).
4 An analysis of this economic impact is beyond the scope of the present article. It is noted, however, that many employers report an increase in lost time due to frivolous web surfing by employers. See: USA Today Dec. 8, 1995.
7 While many prefer to use the term ‘hacker’ in its original and benign definition, I have used the term to mean a “malicious or inquisitive meddler who tries to discover information by poking around.” Steele Jr., Guy L., Raphael Finkel, Donald Woods, Geoff Goodfellow and Mark Crispin, with assistance from the MIT and Stanford AI communities and Worcester Polytechnic Institute. “The Hacker’s Dictionary.” Obtained electronically. Original publication: New York: Harper and Row, 1983. This negative personification is what the public has come to understand it to mean and what law enforcement agencies have meant it to mean. For the traditional meaning of “computer hacker,” see generally: Levy, Stephen. Hackers. New York: Dell, 1984.
8 The “Federal Guidelines for Searching and Seizing Computers” is indicative of the awareness law enforcement agencies have of the idiosyncracies in cyber law enforcement. The Guidelines are also indicative of efforts to abide by constitutional rights in cyberspace.
9 Hafner, Katie, and John Markoff. Cyberpunk: Outlaws and Hackers on the Computer Frontier. New York: Simon & Schuster, 1991. See page 88. They describe law enforcement agents who did not know what they were doing, or supposed to do. One officer lifted the phone from a modem which disrupted the transmissions that were in progress. The transmissions could have been used as evidence. While local and state agencies have begun to train special units in computer crime, most of the nations law enforcement officers and agents are unaware of the technology and quick paced change associated with computer crime.
10 As was previously mentioned, some have suggested a “virtual magistrate” type system. Particularly, Georgetown University is working on a “Virtual Magistrate Pilot Progran”. However, in order to keep the two systems distinct, I have chosen not to discuss these alternative pilot programs. An analysis of the alternative programs will be a forthcoming project. At any rate, there does not exist a national program for resolving disputes in cyberspace.
11 Rather than discuss every possible crime and corresponding law in cyberspace, it is argued that for every situation in the real world, there can be a corresponding situation in cyberspace. If we understand that cyberspace mimics the interaction of human beings, we can see the potential for the corresponding crimes and injustices which inevitably follow.
12 Inchoate is used as it is defined in the Model Penal Code under criminal attempt; specifically, under Article 5, Section 5.01:
(1) Definition of Attempt. A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he:
(a) purposely engages in conduct which would constitute the crime if the attendant circumstances were as he believes them to be; or
(b) when causing a particular result is an element of the crime, does or omits to do anything with the purpose of causing or with the belief that it will cause such result without further conduct on his part; or
(c) purposely does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.
13 It is recognized that there is a “litigation explosion controversy.” However, for purposes of this article, a discussion into the merits of either side of the controversy is not necessary. It is sufficient to note that some may disagree with general comments in the article. The article is attempting to provide a more efficient alternative for dispute resolution within cyberspace. It makes no claims as to the need for general ADR in other areas of law. For more information, see generally:
14 As Section II will indicate, an increase in the number of computer crimes and an increase in the prosecution of computer criminals will necessarily increase the number of cases which arise in criminal courts.
15 Examples include tort remedies for infliction of emotional distress, trespass, assault, battery, etc. In relation to computer crime, victims may seek compensation for trespass via computer, recovery of stolen property, and more post-modern cyberspace crimes. These post-modern cyberspace crimes include rape, assault, and battery. See: Dibbell, Julian. “A Rape in Cyberspace.” The Village Voice, December 21, 1993. Dibbell’s article suggests that cybersex has indeed brought with it more than the pandering of sexual material. In fact, it is now possible to be raped in cyberspace. The cyber-rape occurred in a game called a MOO or MUD. These are computer programs which simulate a world. Users are able to create their own environments and traverse the environments others have created. It is also possible to participate in “real-time” conversation with other users. Many of the programs and games available on the Internet have themes or particular story lines.Dibbell relates the story of how a male user of one of these programs made profane and vulgar suggestions to two particular female users. The suggestions were more than words. This male used a device like a voodoo doll and was able to make it appear as if the female characters were doing particular actions to themselves. Dibbell relates how the two women involved were quite emotionally upset. He suggests that the mental impact of a rape in the real world or in cyberspace may indeed have the same depth. If this is true, then certainly the victims of this injustice felt humiliation and embarrassment. Is it possible for a “rape” to occur without bodies physically touching one another? Is it possible for mental rape to be an illegal offense? If the answer is “yes” to either of these, then this opens up another entire area of cyberlaw on which policy makers will have to make decisions which are particular to the crime in cyberspace.
16 ANNOTATION: MEASURE AND ELEMENTS OF RESTITUTION TO WHICH VICTIM IS ENTITLED UNDER STATE CRIMINAL STATUTE.” 15 A.L.R.5th 391, sec. 9. Lawyers Co-operative Publishing Co. Citing State v. Holmberg (1989, Iowa) 449 NW2d 376: “a defendant convicted of computer theft can be ordered to make victim restitution in an amount beyond the offense to which the defendant pleaded guilty, such that the victim receives compensation for his or her total loss, though the lower tribunal’s decision would be reversed due to lack of proof that the defendant caused more damage than the extent to which he admitted– $500. The subject charges stemmed from the defendant’s act of making unauthorized use of the victim’s phone lines. While he was charged with computer theft in the first degree (a crime resulting in a loss of services or property of more than $5,000), he entered, per agreement, a plea to third-degree computer theft (involving more than $100 and less than $500 in loss). The lower tribunal ordered the defendant to make victim restitution of $12,603.27. On appeal, the defendant contended that the restitution order was necessarily limited by the parameters of the offense to which he entered his guilty plea. The court, on review, disagreed, noting that a restitution order can be extended to any amount which would be appropriate for tort recovery. In the instant matter, however, the court concluded, no proof was adduced which established that the defendant caused damage in excess of $500. –SUPP–
Also recognizing that defendant convicted of computer theft could be ordered to make restitution to his victim in amount of victim’s actual loss: Commonwealth v Gerulis (1992) 420 Pa Super 266, 616 A2d 686, appden (Pa) 633 A2d 150.” Obtained via LEXIS.
While the cases cited here were criminal, this is precedent for a victim to bring civil suit under the same theories.
17 Id., sec. 9a. “In State v Lindsly 106 Or App 459, 808 P2d 727 (1991), the court held that a defendant convicted of “computer crime” could be ordered to make victim restitution for the investigative costs expended by his victim in uncovering the defendant’s fraudulently gained access to the telephone company’s computer network. On appeal, the defendant specifically contended that the trial judge erred in imposing restitution in the sum of $36,840 for investigative expenses, as such costs are not contemplated by ORS 137.103(2), which provides for restitution to cover a victim’s “pecuniary damage.” The court, on review, held that the damages incurred by the victim in the instant matter were substantial, and that the victim suffered more than “inconvenience” or a temporary restriction on its work activities. That is, the court explained, investigation of the computer system break-in required expertise and specialized technology. The defendant caused damage to the system, the court added, because he retrieved and used valid passwords which had to thereafter be replaced.”
19 ibid, page 826. Rowe cites from a Yale Law Journal Article [“Rethinking Fairness” Perspectives on the Litigation Process.” 94 Yale L.J. 1643, 1644 (1985.)] “…there can be little doubt that the system is not working very well. Too many cases take too much time to be resolved and impose too much cost upon litigants and taxpayers alike.”
21 I am purposely limiting the scope of the proposed Cybercourt in order to insure a workable project. In the future, one could reasonably imagine the same forum being used for a variety of legal disputes outside the cyber-community context. Indeed, it is hoped that success in this project may indeed lead to a more encompassing forum. Other alternatives for resolving disputes should continue to be explored. In fact, some suggestions in the area of dispute resolution may indeed encourage the use of Cybercourt. See generally: Varon, Jay N. “Promoting Settlements and Limiting Litigation Costs by Means of the Offer of Judgment: Some Suggestions For Using and Revising Rule 68.” 33 Am. U.L. Rev. 813 (Summer 1984).
22 The impact this might have on diversity cases is a subject well-deserving of an article. There would no longer be any practical difficulties for trial participants traveling far into another state or jurisdiction’s court. In addition, because it would no longer be necessary for one to travel to a distant court, there would be no other travel expenses. Indeed, one could almost continue working were the form sessions held at a convenient time. One other question would be with regard to the “minimal contacts” test: Does a computer user who travels through a modem have sufficient contacts in another state where a violated computer or victim sits? This is perhaps another reason for a structural dispute resolution system within cyberspace – where the boundaries are limitless – because disputes are adequately addressed only in a similar environment from which they arose.
23 See: Hardy, I. Trotter. “Symposium: Electronic Communications and Legal Change: Electronic Conferences: The Report of an Experiment.” 6 Harv. J. Law and Tec 213 (Spring 1993), page 233, where conference participants saved on travel time. One participant remarked that he spent about four hours reading and writing messages for the conference over a three-week period. Considering that many would spend the same amount of time traveling to a conference location, or court, it is evident that the time saved is money saved.
26 Theoretically, there is an infinite amount of space (room) in cyberspace. However, the number of rooms at any particular Cybercourt location may be limited by the software used. Two considerations become evident: First, too many rooms may slow down the processing time of the computer running the software; Second, there are a limited number of addresses that a particular computer can hold. Beyond mentioning these limitations, a further discussion is left for another article. networks overwhlemed, need new internet addresses
31 The focus of the conference was on e-mail. However, contributors suggested that e-mail is important in the decision making process: “issues are teed up, commented upon and resolved, often without face to face meetings.”
33 ibid, page 222. It was also suggested that the electronic mail environment could provide a useful method by which mentor programs are fostered. Responses to this suggestion (although few) were positive both by academics and those practicing.
36 Also referred to as Multiple User Dungeon, or Multiple User Dialogue. New technology suggests that a more advanced environment may be available through Internet Phone (I-Phone) technology. That is, one is able to both see and hear another individual connected on the same channel. However, this author’s experiments suggest that the technology does not yet allow for efficient use of such an environment. Perhaps, an environment based on I-Phone technology may be prudent when the Cybercourt system has perfected its fundamental essentials.
39 Some domains may restrict the use of their individual accounts. An educational institution may, for example, have chosen to establish a policy which deters use of MUDs. In the MUDs and MUDding FAQ, readers are warned to determine their systems policies before MUDding.
43 The local cyber community is defined here as the conglomerate of those who utilize the domain. For example, in an educational domain, the cyber community consists of students, faculty, administrators, and any others who utilize the system.
46 While a suggested policy is beyond the scope if this article, two organizations are the Computer Ethics Institute (soon to hold the 4th National Computer Ethics Conference April 27-28, 1995) and the Association for Computing Machinery (ACM). See the ACM’s “Code of Ethics and Professional Conduct,” found in Forester, Tom and Perry Morrison. Computer Ethics: Cautionary Tales and Ethical Dilemmas in Computing. Boston: MIT, 1994. One project which may prove to be extremely useful for this subject and others is Project LEON (Law and Ethics on the “Nets”.) This is a number of individuals in the legal community who are working toward promoting “a dialogue that can lead to recommendations for dealing with the many issues” which face the networks and their inhabitants. It is a joint venture between the John Marshall Law School’s Center for informatics Law (CIL) and the American Bar Association Section of Science & Technology Committee on Information Practices, Policies, and Privacy (IPPP). See: Trubow, George B. “Law and Ethics on the ‘Nets.'” blast. Janury 1995.
47 See below for more information on the national role in local communities. As for the Cybercourt Institution, this article advocates the creation of such an Institute to aid in the implementation and efficient operation of a nationwide system.
48 A discussion of whether all cyber disputes would be addressable in federal court is beyond the scope of this article. Thus, diversity and federal question aspects of cyberspace is not considered here. However, because transmissions cross state lines and there are no real boundaries between users, it is suggested that cyberspace be a federal phenomenon. One other alternative is the recognition by the Federal and State Governments that the Supreme Cybercourt is the final decision in such disputes.
49 This is contrary to the current federal definition of citizenship for diversity purposes. Another issue is to consider citizenship of those living in other countries. Initial suggestions would be to implement the same system outlines in other countries and have a International Supreme Cybercourt to resolve disputes among citizens of different countries. Because the Internet is set up the same (to a degree) throughout the world, and the domain system is identical, there should be no probelms (outside of law) in doing this.
51 If one accesses the system through non-traditional means by way of hacking or other “illegal” means, the very act which creates access being illegal need not give the intruder notice of other violations. By breaking into a system, one assumes responsibility and is liable for any violations which follow.
52 Dunne, Robert L. “Deterring Unauthorized Access to Computers: Controlling Behavior in Cyberspace Through a Contract Law Paradigm.” Jurimetrics, Volume 35, Number 1, Fall 1994. Quote is taken from Hardy, “Electronic Conferences,” at 221.
53 I omit sex for the sole reason that in cyberspace you have the choice of choosing your name or handle and oftentimes this handle is indicative of gender. However, more often than one would believe, many men adopt female personas, so you can never be too sure.
Copyright 1995, 1999 by Charles Lee Mudd, Jr.