Facebook Discovery and the Unbearable Sameness of Internet Law

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40 ARKANSAS LAW REVIEW [Vol. 65:39 information can now be collected, distributed, and stored is leading to a truly revolutionary shift in the power and capabilities of individuals and small businesses. 2 But technological revolutions disrupt both limitations and protections alike. The same changes that expand the reach of ordinary individuals are also leading to the increased documentation of every aspect of their lives. The disruptive effects of these changes are real, and examples of individuals, companies, and courts that ignore them are well known. But it is possible to overcompensate for technological change. The meme that everything on the Internet is startlingly different has become so engrained that it is actually fairly common for people to miss instances where the fact that a transaction or communication occurs on the Internet, or using computers, is of no significance at all. In the legal world, there are numerous examples where the standard rules developed over the course of the twentieth century work just fine when applied to the Internet. Call these “Law of the Horse” cases. The term is derived from Judge Frank Easterbrook, who in 1996, the dawn of the Information Age, decried efforts to develop new laws and legal doctrines to govern the Internet as akin to trying to define a “law of the horse”—that is, a compilation of all laws and cases in which a horse was involved. 3 There would be no coherence to such a subject; and so it was, Easterbrook argued, with the nascent subject that devotees were already calling “the Law of Cyberspace.” 4 A field of study defined only by the fact that its cases involved the Internet and that its statutes applied to Internet activities would be a confusing mélange of materials. 5 Worse, Easterbrook argued, in attempting to invent new law without a good sense of what new law is needed, or why, there is the risk of doing more harm than good. 6 launched in 2004 and slowly rolled out to the general public by 2006. See boyd & Ellison, supra. 2. See William Jeremy Robison, Note, Free at What Cost?: Cloud Computing Privacy Under the Stored Communications Act, 98 GEO. L.J. 1195, 1197-98 (2010). 3. Frank H. Easterbrook, Cyberspace and the Law of the Horse, 1996 U. CHI. LEGAL F. 207, 207-08. 4. See id. 5. See id. 6. See id. at 215-16.
2012] OVERSHARING: FACEBOOK DISCOVERY 41 If Internet law is to be a useful subject, then its focus must be on something other than just how modern legal disputes sometimes involve the Internet. One alternative might be a substantive focus; to study, as telecommunications law does, just those statutes that regulate Internet-only transactions: domainname regulation, 7 anti-spam laws, 8 web-host immunities, 9 and more. But there are broader themes within the development of law over the past decade and a half since Easterbrook’s article that might also be worth attention. Another profitable focus might, therefore, be methodological: Internet law can be seen as a special case study of how law changes, or should change, in response to changes in technology. The issue of discovery of social-networking communications in civil suits provides a useful example of the methodology of Internet law and illustrates some of the hazards of getting it wrong. There are at least two types of inquiry one might make. One is the normative question, from the perspective of a legislator or perhaps a judge with discretion to adopt a new rule, of whether the law should change in response to technological changes. Another is the interpretive question of how best to read and apply existing law to a new set of facts that do not fit well within it. The key step in both is to determine whether a given technological change has materially altered either the underlying behaviors or the effectiveness of the law in regulating them. If so, the lawmaker may want to alter the law to bring it back in line with its objectives; and the interpreter of the law may need to make his or her reading of the law either more restrictive or more expansive to keep it within its original bounds. But if a change in technology has not materially altered the way the law operates, then tinkering with the law is not only unnecessary, it may disrupt careful balances that the rule had 7. See, e.g., Anticybersquatting Consumer Protection Act, 15 U.S.C. § 1125(d) (2006); Uniform Domain Name Dispute Resolution Policy, INTERNET CORPORATION FOR ASSIGNED NAMES AND NUMBERS (Oct. 24, 1999), http://archive.icann.org/en/udrp/udrppolicy-24oct99.htm. 8. See, e.g., Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, 15 U.S.C. §§ 7701-7713 (2006). 9. See, e.g., 17 U.S.C. § 512 (2006) (granting conditional immunity to websites for the infringing acts of users); 47 U.S.C. § 230(c)(1) (2006) (providing that no ISP shall be treated as the “publisher or speaker of any information provided by another information content provider”).
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Facebook Discovery and the Unbearable Sameness of Internet Law

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