Abstract

     I am honored to write this essay on the state of Internet law to commemorate the twentieth anniversary of the Santa Clara Computer and High Technology Law Journal. It is fitting and appropriate that an entire section of this special issue is devoted to addressing the legal and policy challenges posed by a technology that did not exist at the time the journal was founded. Throughout history technological innovation has played and continues to play a major role in the development of law, most often by creating what Justice Cardozo described as the interstices or the space between existing legal rules and decisions. Correspondingly, law’s response influences what technologies are developed and how they are used. The importance of a forum for exploring and discussing these issues cannot be overstated.
     When this journal was founded, society was struggling with the then emerging technology of the VCR. A year later, in 1984, the Supreme Court paved the way for a product that is now ubiquitous, one that has provided the public with a valuable means for obtaining and experiencing information and created new markets and generated great wealth for the consumer electronic and entertainment industries. Today, we are struggling with the social, political, and legal implications of a world increasingly interlinked and mediated by computer technology, and lawmakers are constantly struggling with the legal implications of this new technology. In this context, the history of the VCR is more than an example of the integral relationship between law and technology; it is a cautionary tale as well. While it appears in hindsight that the Supreme Court reached the “correct” decision regarding the VCR, at the time, the great weight of scholarly authority was to the contrary. So how does one evaluate Internet law when one recognizes that no one, let alone lawyers, is prescient and capable of accurately predicting the impact of new technologies? In other words, how does one evaluate the state of Internet law while the revolution is still occurring?
     To engage in this analysis, this essay draws upon the framework for social revolutions provided by Crane Brinton as a means for making some preliminary judgments about the current state of Internet law and for providing guidance going forward. Doing so does not suggest that one can simply map Brinton’s anatomy of revolution directly onto Internet law. There are limitations to the metaphor and its application to what may be described as a technological and legal rather than socio-political revolution. Rather, recognition of the dynamics of revolution provided by Brinton’s fever metaphor and outline of the evolution of revolution are useful measures for evaluating the state of the law even though if the fit is not perfect or universal. Moreover, unlike Brinton, I do not claim to describe without evaluating. In this context, I do not believe that such detachment is useful let alone possible. The choice of the framework as well as the examples to which it is applied reflects both conscious as well as sub-conscious biases and normative judgments. Nonetheless, this analogy with political revolution is proposed in the hopes of facilitating a dialogue on the state of Internet law including whether such a discussion is both possible and meaningful.