Debating Internet Law at the Speed of Light: Confounds of Relativity and Incomplete Understanding

As many invested in the discussion are painfully aware, the speed at which technology is presently advancing severely complicates the design and understanding of any regulatory landscape that claims to properly account for the dynamics of an ever-changing social and technological topography. The resulting confounds associated with such rapid flux in an increasingly interconnected society amplify the need for regulatory coherence and adaptiveness, but at the same time such confounds make reaching consensus more contentious and politically elusive. Like oppositely situated observers debating between perceptions of an unfolding event while moving at light speed, those who debate the future of internet law are faced with the inherent confounds of relativity and incomplete information.

Particularly with respect to the pivotal issues of (a) how to draw the bounds of internet privacy and (b) whether to conceive of internet access as a fundamental right, these confounds have been on full display in the thoughts/actions of the legislative and judicial branches, as well as in opinions expressed throughout the vast spectrum of media outlets.

I. Relativity

On one side of the aisle, the internet has been dubbed one of the world's most destructive technologies, having the power to unite radical conspirators, reinforce niches of extreme and irrationally unfounded thought, and spread misinformation with virus-like ease. In stark contrast, some on the other side of the aisle have gone so far as to lobby for nomination of the internet for the Nobel Peace Prize, as it represents the driving force behind "a new kind of society in which massive interpersonal contact fosters consensus and understanding." While to some extent such an extreme divergence in outlooks is a reflection of the natural human tendency to gravitate toward extremes of optimism or pessimism during times of uncertainty about rapid societal transformation, both of these outlooks nonetheless seem to root themselves in "reasonable" concerns about the future of society, as appraised through looking-glasses equipped with conflicting personally-preferred visions of the future.

William Saletan, reacting to the death of a baby who starved as his parents were consumed by raising a virtual child online, warned that we could be headed toward a "Terminator-esque dystopia" in the form of a spreading anti-social epidemic. The optimistic view of the future, on the other hand, envisions a more positive social contagion that will involve "cascades of cooperative behavior" and outpourings of altruism like, for example, the rapid spread of donations witnessed throughout the recent Haitian earthquake response. The list of divergences in forecasts goes on:

• Some fear that the human tendency to have a self-confirming bias will lead to ideological segregation and a more "ghettoized, polarized and insular electorate," whereas others assert that the internet is actually more ideologically integrated than old-fashioned forms of face-to-face association.

• Older generations in particular often clamor that the internet negatively affects cognitive and emotional processing of information, whereas others argue that some of these so called AD/HD-like propensities might be better understood as a "positive evolutionary ability for multitasking in a high-tech age."

It almost goes without saying that any political initiative conceiving of internet access as fundamental right must subscribe to the optimistic side of these outlooks, at least to some degree of potential. After all, how can one justify protecting internet access as a fundamental right without quelling these fears of destruction? And beyond these divergences in outlooks, the problem of relativity will inevitably rear its confounding head in the debate over balancing privacy and security interests. In some sense, the extent to which individuals place more or less subjective value on privacy interests revolves around one's conception of individual "dignity." And so long as it can be said that there are a variety of legitimate claims to ideas of dignity, including the way Dennis Prager conceives it, any such debates will continue to be frustrated by relativity compounded at high speeds.

II. Limited Understanding

Prior to the emergence of internet-facilitated interconnectedness that now pervades society, the conceptualization of privacy as a right protected by the Fourth Amendment was relatively easy to demarcate as an issue of strictly physical boundaries. But now, given a suddenly digital and paperless society, the legal understanding of the so called right "to be secure in one's papers" is flummoxed by a technological disappearing act. Physical boundaries housing private/personal information have been replaced by imperceptible digits, and so the debate over privacy has morphed into a struggle to elucidate the nature and consequences of essentially phantom breaches of invisible homes. And with such an elusive phantom perpetrator who is constantly evolving and taking on new forms, efforts to describe the common elements of its serial crimes are inclined to resemble the pathetic flailings of Wile E. Coyote.

To draw an analogy: enforcing the rule that metal bats are not allowed in professional baseball is relatively straightforward -- the breach is perceptible. But as technology advances to a degree such that tools yielding unfair advantages are imperceptible, the result is a generation of statistics tainted by performance enhancing drugs. Moreover, even if the imperceptible is feasibly detectable, the advancement of technology might be ever-pressed to sidestep the old adage that the criminal is always one step ahead of the law -- or, more specifically, that the privacy-breaching technology of the executive branch is often beyond or hidden from the analytical grasp of the other branches. In other words, the executive branch is the primary wielder of technological power because technology is executive in nature -- it enables, for example, the execution of national cyber-security measures that test the bounds of privacy.

Who, then, will monitor and chase down the executive phantom? While Supreme Court Justices remain in a twilight zone of telephone analogies and text messages without service providers, the executive branch is experimenting with ADVISE. Kudos to Congress for entertaining the chase by asking for a GAO report, but it's hard not to see the reflection of Wile E. when the request was reportedly made because "they had no idea what the government was doing in data mining." Like the last-minute ousting of a squatter, the legislative and judicial branches may never be up to speed with where the executive is marking its territory, but one can at least hope for enough speed and understanding to ensure arrival before reasonable expectations of privacy have been supplanted by adverse possession.

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