Cyberlaw 2.0


In the early days of the Internet, Judge Frank Easterbrook famously dismissed the idea of an emerging field of cyberspace law as akin to a “law of the horse”— a pastiche of unrelated legal principles tied together only by virtue of applying to the Internet, having no unifying principles that would teach us anything meaningful. This article revisits Easterbrook’s assertions with the benefit of hindsight. It suggests that subsequent case law and legislative developments in fact do support a distinct cyberlaw field. It introduces the novel argument that cyberlaw is a global “law of the intermediated information exchange.” In other words, online law is unified by the fact that everything that occurs in cyberspace is an information exchange intermediated by one or more third parties - search engines, social networks, Internet Services Providers etc. Thus, cyberlaw is essentially about regulating communications amongst individuals, and apportioning liability between communicators and those who facilitate communication. Accepting this premise, one can identify a foundation – and set of unifying principles - for the field. This article advocates building up from this foundation to facilitate the development of a more cohesive, systematic and predictable set of rules for online governance.

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