Vol 7 No 1 - Roger Williams University School of Law

ISP explains that they are not a state actor and the courtagrees.390 Should private action of such a public nature, wherethe ISP’s mailboxes and networks are vital to the widespreaddissemination of information, trump the marketing firm’s freespeech interest? Should the private property be open for thispurpose? In general, owners of private property are not requiredto allow their property to be used for speech purposes thoughthere are exceptions. Is there a principle of free speech in thisprivate space where property law and notions such as trespass391and nuisance predominate? Had the ISP sought to enforce itsrights through a trespass action, the issue of free speech and stateaction may gain more support.392 However, through selfexecutingcode, an ISP is able to enforce its private norms, forcingthe marketing firm to bring the action to court. In doing so,marketing firms must scramble to find an unconscionability ordiversity principle/ethic in their favour since such a principle hasyet to be fully developed for the digital environment. The lack of asophisticated notion of digital constitutionalism hinders themaking of an already difficult argument.Secondly, imagine a private corporation that encrypts anddistributes information it on its own terms. UCITA contains thepower to be activated remotely or through self-help;393 thus it isself-enforcing with no need for the court system. Code rules. Inthis case, the values or principles of the transaction are insertedand implemented by the private corporation. The public values offair use and free access, and in a broader sense respect for thepublic domain, are not necessarily implemented in this regime.For example, I buy a book that may not be printed or copied andmay be read or viewed only once. The code enforces this processand therefore a court will not be brought into the question unlessthere is a valid cause of action, i.e., unconsionability.Contrast contract outside the realm of code. While I might390. Id. at 445391. See e.g., eBay, Inc. v. Bidder’s Edge, Inc., 100 F. Supp. 2d. 1058 (N.D. Cal.2000) (involving a case where an Internet auction site sued an auction aggregating sitefor trespass).392. Cf. Compuserve, Inc. v. Cyber Promotions, Inc., 962 F. Supp. 1015 (S.D. Ohio1997) (holding that a company’s intentional use of the service’s proprietary computerequipment was actionable trespass to chattels for which First Amendment provided nodefense).393. See UCITA § 816 (1999); Julie E. Cohen, Copyright and the Jurisprudence ofSelf-Help, 13 Berkeley Tech. L.J. 1089 (1998).