David G. Post
Hereby it is manifest, that during the time men live without a common Power to keep them all in awe, they are in that condition which is called Warre; and such a warre, as is of every man, against every man. . . . It may peradventure be thought there was never such a time nor condition of warre as this; and I believe it was never generally so, over all the world; but there are many places where they live so now. For the savage people in many places of America . . . have no government at all, and live at this day in the brutish manner, as I said before. Howsoever, it may be perceived what manner of life there would be, where there were no common Power to feare . . . .It all sounds like the plot of a (mediocre) science fiction novel: strange beings with names like the Cancelbunny, an144108, XS4ALL, and Scamizdat, fighting on a battleground with no fixed location anywhere on earth, using strings of binary digits as their weapons. But science fiction it is not; it is the ongoing battle in cyberspace between the Church of Scientology ("CoS") and its critics, the first War -- or Warre -- in the Age of the Internet. If you want evidence that the Internet may indeed be a place like no other, please read on. And even if you have no interest in anything having to do with "cyberspace," you might wish to hear more of these bizarre doings if you care about the way that politics and law shape (or fail to shape) the way we live. For just as contact with radical new forms of civil society -- places with "no government at all" -- focused the minds of Hobbes and the other Enlightenment philosophers on the nature of government and political power, so too may contact with this curious new electronic world and its odd new rules of conduct lead us to think anew about what life "without a common Power to keep us in awe" might be like.
Hobbes, Leviathan, chap. 13 (1651)
Depending on whom you ask, Scientology is either a legitimate religion offering followers a route to spiritual enlightenment and salvation, or a fraudulent scam -- and, let me say at the outset, I have no opinion as to which characterization is the correct one. What is clear, however, is that relations between adherents and critics have never been pleasant; passions run feverishly high on both sides, and the Scientologists have often been accused of dealing, shall we say, rather harshly with their critics.
But at least until July 17, 1991, there was no truly organized opposition to the Scientologists's teachings and tactics, no true community of the disaffected. How could there be? Building an anti-church, after all, takes just about as much administrative and operational savvy, not to mention money, as does building a church. But that feature of the landscape changed dramatically on the date mentioned, when a Scientology critic, Scott Goehring, formed a discussion group -- "alt.religion.scientology" -- on what is called the "Usenet" network portion of the Internet.(As a harbinger of complications to come, Goehring forged the return address of the message used to create alt.religion.scientology, using the address "firstname.lastname@example.org" in an apparent reference to Scientology head David Miscavige.)) Suddenly, in the 30 seconds or so that it took Goehring to type out his request, and the $0.05 or so it cost him to transmit that message to the computers responsible for Usenet network configuration, there is a place where the disgruntled can meet to exchange ideas and information -- a new community, one of the literally hundreds of thousands of such communities that have sprung into being on the Internet over the past few years.
Alt.religion.scientology indeed became a hotbed of critical commentary on Scientology's teachings and tactics (as well as one of the Internet's most actively utilized discussion forums, with over 2,700 postings per week). But things began to get really interesting when some participants in the discussions began appending to their messages long excerpts -- and, on occasion, the full text -- of some of Scientology's secret scriptures, known as "the Advanced Technology." CoS followers hold fiercely to the notion that their revered, secret texts must never be disseminated except to the rigorously initiated -- that it is, in fact, dangerous to allow people who have not reached a certain stage in their training to view these materials. CoS critics, on the other hand, claim that these documents are a critical part of the public debate about Scientology, and that exposing these documents to public view, with their seemingly bizarre descriptions of alien beings and pre-historic thermonuclear war, will help keep potential adherents out of the Scientologists' clutches.
Upon discovery that the Advanced Technology was being freely disseminated across the globe, the CoS's legal staff sprang into action. These texts, they asserted, contain copyrighted materials as well as "trade secrets." Distribution -- electronic or otherwise -- thus constitutes bald-faced copyright infringement and unlawful misappropriation of confidential information. A number of lawsuits were filed -- in Denver, San Jose, Alexandria Virginia, and Amsterdam -- against the individuals allegedly responsible for these postings, against the entities that provide those individuals with connectivity to the Internet, and even, in one case, against a newspaper (the Washington Post) that published excerpts from one of the sacred texts in its story about the cases.
These cases, to be sure, raise some difficult and important legal issues. For example, trade secrets are generally defined under US law as any information that gives one a commercial advantage over competitors and as to which reasonable precautions against disclosure have been taken -- customer lists, industrial processes, and the like. Can a church even hold trade secrets? Are we prepared to recognize a religion market in which competitors are battling for commercial advantage?
Or, to take another example, assume that the CoS holds the copyright to these texts. US copyright law allows the "fair use" of a copyrighted work, including copying and distribution "for purposes such as criticism, comment, news reporting, [and] teaching." You may, for example, quote portions of a book in a review without fearing a copyright infringement lawsuit. Can posting these texts to the Internet, in the context of an attempt to generate greater public discussion and awareness of the Scientologists' teachings, be excused on these grounds? The fair use inquiry is a notoriously slippery one, decided by courts on the basis of an ad hoc balancing of various factors, including whether or not the work is being distributed for commercial gain (a factor favoring the Net distributors, who are making copies available at no charge) as well as "the amount and substantiality of the portion used in relation to the copyrighted work as a whole" (a factor strongly favoring the Scientologists).
And finally, should the Internet service providers, who function as the "pipeline" connecting the individual posters to the Internet, be liable for any harm caused by these distributions? On the one hand, they can hardly be asked to monitor all of the thousands or hundreds of thousands of messages that flow through their systems each day to determine whether there is infringing material in any of them. On the other hand, liability under US copyright law has in the past been broadly applied to intermediaries -- bookstores, for example, are liable for infringing material contained in the books they sell, nightclub owners for infringing performances by musicians they have hired, etc. -- on the ground that those who profit, however indirectly, from the infringing activities of others should be made to compensate the injured copyright holder; why should those well-established principles not be applied here?
These are questions that courts are likely to be struggling with for some time. The CoS has been largely successful in obtaining favorable preliminary rulings -- that the documents do contain trade secrets, that fair use does not permit their posting to the Net, and that the service providers may indeed be liable for these postings -- that strike many observers (including this one) as attempts to unthinkingly jam the square peg of existing law into the round hole of the Internet. But this entire episode has significance far beyond the boundaries of these important legal questions. In many ways it is a primer on the way that disputes will be handled in a networked world, on the nature of the anarchy that, in the eyes of many, rules (and may continue to rule) on the Internet, and on just how difficult it will be to exercise any degree of control over this environment using traditional legal tools. Whatever a "law of the Internet" ultimately looks like, it will somehow have to incorporate (at least) four principles that emerge from these battles:
1. There's no There There. Assume that all of the Scientologists'
claims are true, that these documents really are protected under copyright
and trade secret law and have been unlawfully posted to alt.religion.scientology.
Assume further that some court, in this country or elsewhere, were persuaded
that alt.religion.scientology is nothing more than a haven for unlawful
activity and that it should be closed down. What then? Alt.religion.scientology
is not like, say, a bookstore or some similar physical "place" that can
be located, boarded up, and its operators hauled into court; like the Internet
itself, it has no owner, no operator, no central computer on which it "lives."
Usenet groups like alt.religion.scientology come into existence when someone
(like Scott Goehring) sends a proposal to establish the group to the specific
newsgroup (named "alt.config") set up for receiving such proposals. The
operators of each of the thousands of computer networks hooked up to the
Internet are then free to carry, or to ignore, the proposed group. If a
network chooses to carry the newsgroup, its computers will be instructed
to make the alt.religion.scientology "feed," i.e., the stream of messages
posted to alt.religion.scientology arriving from other participating networks,
accessible to its users, who can read -- and, if they wish, add to -- this
stream before it is passed along to the next network in the worldwide chain.
It's a completely decentralized organism -- in technical terms, a "distributed
database" -- whose content is constantly changing as it moves silently
around the globe from network to network and machine to machine, never
settling down in any one legal jurisdiction, or on any one computer.
Not only is alt.religion.scientology immune from being boarded up in this fashion, but what the technology giveth, sometimes not even the technology can taketh away. The Scientologists learned this early on, when Helena Kobrin, an attorney for the CoS, issued a "Remove Group" message to alt.config, asserting that alt.religion.scientology should be deleted from the network because (a) it had been started by a forged message, (b) it misleadingly used the trademarked name "Scientology" in its title, thus implying some official connection to the CoS, and (c) it "has been and continues to be heavily abused with copyright and trade secret violations and serves no purpose other than condoning these illegal practices." But it's like punching a paper bag; there's no forum in which to make these arguments other than Usenet itself, no central decision-maker that can evaluate the validity of those claims and decide whether or not alt.religion.scientology should survive. That decision is entirely in the hands of the owners of each of those thousands of computers, most of whom, in this case, simply chose to ignore the request to delete the alt.religion.scientology group.
2. Anonymity changes everything. Many of the documents in question were posted to alt.religion.scientology attached to signed messages from identifiable individuals. Many, on the other hand, arrived in the Usenet feed bearing addresses like "email@example.com," identifying them as having been transmitted through a well-known Finnish "anonymous remailer." Anonymous remailers like anon.penet.fi operate very simply: if Alice wants to send an anonymous message to Bob (or to alt.religion.scientology), she prepares the message and sends it not to the intended recipient but to the anon.penet.fi address (along with forwarding instructions); the remailer simply strips off all of the information from this message related to Alice (and the machines that Alice utilized to transmit the message), and it then forwards the message -- now containing a "return address" indicating only the remailer from which it came -- as instructed.
What kind of rules -- copyright, trade secret, or any other -- can be enforced in a world where individuals can so easily hide their identities? The significance of this question was not lost on CoS officials; in a move that sent shock waves across the Net, many of whose denizens believed that anonymous remailer technology was somehow foolproof, CoS representatives in early 1995 marched in to the offices of the Finnish police and managed to obtain a warrant authorizing the police to search the anon.penet.fi mail logs for the identification information pertaining to an144108.
And while the Finnish police were indeed able to obtain the information they sought from the remailer operator, the Scientologists' tactics here may, inadvertently, simply have speeded up the development of more sophisticated techniques to ensure the security of anonymous messages. By these actions, all Internet users have been made aware that they might want to avoid remailers like anon.penet.fi that retain copies of incoming identification information if they want more protection from the forces of the "real world" in Finland or elsewhere. More importantly, many of the documents arriving on alt.religion.scientology's doorstep these days -- including those coming from the as-yet unidentified "Scamizdat," an individual (or is it a group of individuals? an arm of some multi-national organization?) responsible for a number of postings containing large chunks of the Scientology secret materials -- have begun to arrive through a chain of multiple anonymous remailers. This makes it far more difficult to secure the necessary cooperation from local authorities that would be required to trace the messages back to their source(s). And by combining the use of multiple anonymous remailers with use of widely-available cryptographic techniques for "scrambling" messages, obtaining identification information becomes even more difficult -- approaching, many suggest, complete impossibility.
So now those possessing secret Scientology texts they wish to disseminate can, if they wish, avoid the unpleasant prospect of being hauled into court to be made answerable for their actions, while still accomplishing their goal. As Scamizdat him/her/itself was quoted as saying: "While the Net has its own perpetual struggles among its orthodoxy and revisionists, it strobes into immobility lawyers and money that darken the battles in the ordinary world." Whether or not lawyers are "strobed into immobility" (?), the day of the traditional lawsuit as a means to settle disputes of this kind may indeed be numbered.
3. Information can't be controlled. To be sure, even in the non-virtual world -- what Nicholas Negroponte has dubbed "the world of atoms" -- information is a pretty slippery quantity. But at least there is a measure of possible control over its dissemination and distribution in a world where newsletters can be seized, printing presses impounded, and bookstores boarded up. Perhaps the most obvious implication of the Scientology War is that on the new global network that measure of control has all but vanished.
For example, the Scientologists have been able, on a number of occasions, to obtain court orders allowing them to seize and impound computers on which their allegedly proprietary material was stored. But whatever hardship such actions may impose on the individuals whose machines are taken, the information itself is blissfully unconcerned by assertions of control over physical hard drives and the like, as it continues to speed around the globe unimpeded. Indeed, shortly after the Scientologists were successfully able to impound a number of documents posted through a Dutch Internet Service Provider (known as XS4ALL), those documents -- now dubbed the "Anti-Scientology Fact Kit" -- appeared on several dozen sites on the World Wide Web, available to all for easy downloading. And if those machines could somehow be made to disappear, new ones would surely take their place. Once information crosses the border into cyberspace, it is uncontrolled and, at least with current technology, uncontrollable; if nothing else, our notion of what constitutes a "secret," trade or otherwise, in this kind of universe is likely to require substantial modification.
4. The new weapons. If the weapons that have worked in the past in the ongoing battle to control information flow prove ultimately toothless, the Scientology War has already given us a glimpse of what some of the new weapons might look like. Most primitive is the technique known on the Net as "spamming" -- bombarding an area of the Net with an inordinately high number of messages. In the early days of the Scientology War, CoS staffer Elaine Siegel suggested in a memo flooding the Net with positive messages about Scientology as a counter to posted criticism. "Imagine 40 to 50 Scientologists posting on the Internet every few days; we'll just run the SPs" ["suppressive persons," in Scientology lingo] right off the system. It will be quite simple . . . to make the Internet a safe space for Scientology to expand into." The CoS has denied that this was ever official CoS policy, but in any event the Church's critics quickly deployed counter-measures: software programs known as "kill files" that instruct their computers not to display any messages from particular e-mail addresses that may appear in the Usenet feeds, thus making it far more difficult for anyone to enlist an army of spammers trying to disrupt ongoing conversations.
Subsequently a more sophisticated series of weapons made its way onto this battleground. The software that allows the Usenet discussions to proceed has a built-in cancellation function, which allows any person posting a message to a Usenet discussion group to send out a subsequent cancel command that propagates around the Usenet network from machine to machine and instructs each participating machine to ignore the user's previously posted message. Designed to allow users to cancel their own postings, this command can be manipulated, by widely-available procedures, to allow you to cancel someone else's message, i.e., to forge a cancel command to make it look as though it came from the original poster. And thus it was that in late 1994, postings began to vanish from alt.religion.scientology, occasionally with an explanation that the postings had been "canceled because of copyright infringement." To this day, it is not known who was behind the deployment of these "cancelbots," as they are known. Again, the CoS disclaimed responsibility, and the anti-Scientology crowd began to refer to this anonymous participant simply as the "Cancelbunny," a tongue-in-cheek reference to both the Energizer bunny and to a well-known Net inhabitant, the Cancelmoose, who has taken it upon himself (itself? themselves?) to set up a cancelbot-issuing process to deal with other kinds of spamming incidents. But whoever or whatever the Cancelbunny may be, its efforts were quickly met by the development of yet another software weapon, appropriately dubbed "Lazarus," that resurrects canceled messages (or, more accurately, simply alerts the original poster, and all other participants in the newsgroup, that a specific message has been canceled, leaving it up to the original poster to reinstate the message if he or she were not the party that issued the cancel command).
What is happening here? Surely the center of gravity of our law-making and law-enforcement apparatus is shifting away from the familiar rules and instruments that have served us, whether for good or ill, in the world of atoms. That's the polite version. Less politely, cyberspace looks a lot like Hobbes' quasi-mythical construct, the state of nature, where the inhabitants have "no common Power to feare" and where there is "no government at all." Of course, law and an ordered society will emerge from out of the state of nature --or at least so Hobbes (and Locke, and most of the other Enlightenment philosophers) believed -- by means of a "social contract" voluntarily entered into by the inhabitants. Indeed, only law that emerges from something resembling this process -- only law as to which the "consent of the governed" has been obtained, in Jefferson's phrase -- is a truly legitimate exercise of State power.
There has always been a strong fictional element to using this notion of a social contract as a rationale for a sovereign's legitimacy. When exactly did you or I consent to be bound by the US Constitution? At best, that consent can only be inferred indirectly, from our continued presence within the US borders -- the love-it-or-leave-it, vote-with-your-feet theory of political legitimacy. But by that token, is Saddam Hussein's rule legitimate, as least as to those Iraqis who have "consented" in this fashion? Have the Zairois consented to Mobutu's rule? In the world of atoms, we simply cannot ignore the fact that real movement of real people is not always so easy, and that most people can hardly be charged with having chosen the jurisdiction in which they live or the laws that they are made to obey. But in cyberspace, there is an infinite amount of space, and movement between online communities is entirely frictionless. Here, there really is the opportunity to obtain consent to a social contract; virtual communities can be established with their own particular rule-sets, power to maintain a degree of order and to banish wrongdoers can be lodged, or not, in particular individuals or groups, and those who find the rules oppressive or unfair may simply leave and join another community (or start their own).
That potential -- not the availability of video on demand, or interactive games, or any of the other technological wonders -- is what makes the emergence of cyberspace a truly extraordinary political event. The consentof the governed can move from beng a theoretical construct to a real principle of governance. No longer will we need to theorize about the content of the laws that people would choose if they were free to do so; the Net will reveal those preferences for us by means of the invisible hand of a worldwide open market for laws, with communities competing for our adherence. So if the inhabitants of alt.religion.scientology want to have a community where copyright is ignored, why should we interfere, since anyone who finds that notion unattractive can simply remain outside its borders and move to other communities -- the Microsoft Network, say -- where other, more protective rules are in place?
The answer, of course, is well illustrated by the Scientology War itself. After all, the Scientologists were not willing participants in this community, they did not choose to post their documents to alt.religion.scientology subject to this community's rules. In other words, each community's rules will have some spillover effects on the inhabitants of other communities, both within and without the boundary between cyberspace and the world of atoms. Sovereigns wielding power in the real world do not and cannot permit individuals from within other jurisdictions to lob explosives over their borders, and it is too facile to believe that they will permit these virtual communities to do so either. Cyberspace may indeed be difficult for territorially-based authorities to control, but we court danger, and put this remarkable experiment in political life at risk, if we assume that it is impossible to control from within the non-virtual world; we have managed to stave off the Orwellian nightmare up to this point, but it is by no means foreordained that we can continue to do so. Cyberspace must, in short, take its place among the community of nations. This will require the development of a degree of mutual recognition and respect on both sides of the border between the world of atoms and the world of bits. Existing sovereigns must defer to the inhabitants of this new place regarding those matters in which the legitimate and unique interests of those inhabitants are paramount; it is the inhabitants of cyberspace, after all, who are in the best position to determine the varying shapes of a copyright law that can truly take account of the strange features of this new informational landscape, and any attempt to require slavish adherence to a copyright law designed for physical objects in an atom-bound world should be fiercely resisted. But the inhabitants of cyberspace, too, must develop mechanisms to recognize and respect the legitimate interests of individuals outside their borders. The challenge is clear and almost overwhelmingly complex, but we cannot fail to meet it lest we lose this opportunity, which may be unique in human history, to design a world in which people are finally free to live their lives as they see fit.
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