I think we should prepare our questions for the discussion forum, ahead of time, here. We should make them shorter and more specific than other people have so far...

-- Anonymous, October 05, 1998

Answers

Possible discussion forum question:

[first, send out annoying spam email to everyone in class] Then, "Do you consider spam email to be trespassing on your computer?"

-- Anonymous, October 06, 1998

Another interesting question might be:

Do you think opening your email is the same as opening your front door or opening your mailbox at home?

This is a specific question which outlines the application of the trespass metaphor to cyberspace, without being really long-winded.

-- Anonymous, October 25, 1998

Another possible question relates to the following posting that Lessig just made to the class discussion page:

Enoch seems clear about the 4th Amendment protections here. I'm not so sure. Say the government coded a worm, that would scan your disk looking for illegal copies of a NSA file. If it found the file, it would report you; if it didn't, it would disappear. It would look for nothing except the NSA file; it would report nothing except that you had it.

Would the 4th Amendment make a law authorizing this worm unconstitutional?

This relates (to me) to whether a computer is property and whether a program's entering your computer is trespass to that property, etc.

-- Anonymous, October 25, 1998

Another one?

Most existing legislation is very clearly direct regulatin of behavior (18 U.S.C. 1030) but code regulations (black hole) and the like are starting to pop up, as we discussed in class on Tuesday. With respect to cyber-trespass, which of the "Lessig" factors (code, markets, norms, direct regulation of behavior) can be manipulated most effectively?

Please comment on these ideas!

-- Anonymous, October 25, 1998

I think the 4th Amendment question is a good one. I think that even beyond the question of whether a computer is property or whether a program entering that computer is trespass, is the question of authorized, or justified, trespass. This could either be discussed in relation to a 4th Amendment hypothetical, or it could be a separate question ("How far should we take the trespass analogy? Should we permit exceptions in cyberspace that are permitted in realspace?")

Trespass is OK in certain situations. For example, trespass by private necessity is OK. That is where the entry is necessary for the intruder or some third party to avoid serious injury (e.g. boat caught in storm can dock in to a stranger's pier until the storm is over). Trespass to speak is also sometimes OK (remember the summary on the class discussion page regarding protests in shopping malls and other quasi-public spaces). Trespass to get rid of a nuisance is also, interestingly, OK. If you built a dam that prevented water from flowing onto my property, I could enter your land and rip out the dam. This raises some questions about the government -- or some private entity like a university, an isp, or a Robin Hood-type do-gooder -- being allowed to hack into a spammer's computer to get rid of the nuisance posed by the spamming.

Going back to the 4th Amendment hypothetical: Applying the "private necessity" exception here, the government could argue that the worm is necessary to prevent injury to itself and to third parties. The internet is like the national airport system; it has been used in the commission of many dangerous and vioent crimes, in addition to the breach of national security. Thus the government has a compelling interest in patrolling the internet, just as it patrols airports. The worm is no more intrusive than a metal detector; the government has no way of knowing what other, innocuous stuff you have in your suitcase/hard drive; the government is only going to detect the bad stuff, that is, the guns/NSA file. In fact, the worm is even less intrusive than metal detectors because there are no "false positives." It will only detect stolen NSA files and will not detect anything else. Metal detectors, on the other hand, will pick up your hairdryer, your keys, your nail file, etc.

I also think it's a good idea to explore the Lessig framework, as Lydia suggests. We should throw out some possibilities for manipulation of the other three areas, like Kristina suggests. One aspect to norm manipulation that we may want to emphasize is how norms have been insufficient. Spamming is widely despised on the internet, but it remains prevalent. One of the responses to the WebTracker hotmail spam threatened that the user would boycott the companies using WebTracker (cnn, movielink, playboy, etc.) and would hold the spam against these companies. Unless this sentiment becomes widespread, however (e.g. how widespread protest over The Gap's unfair labor practices led it to clean up its act), it is not likely to affect anything.

-- Anonymous, October 26, 1998