Wednesday, September 18, 2013
Anupam Chander and Uyen P. Le, both of the University of California, Davis, Law School, have published The Free Speech Foundations of Cyberlaw at UC Davis Legal Studies Research Paper No. 351. Here is the abstract.
Cyber-law is today’s speech law. When civic engagement is increasingly mediated online, the law regulating cyberspace becomes the law regulating speech. Yet, free speech texts pay little attention to the ways that cyber-law configures what has become the principal mechanism for exercising free speech rights today — communication online. Conversely, while many have long observed that the Internet enables speech, scholars have failed to recognize the role that the First Amendment played in shaping the law of cyberspace. A First Amendment-infused legal culture that prizes speech proved an ideal environment on which to build the speech platforms that make up Web 2.0. Free speech was Silicon Valley’s killer app.
Today’s speech law is being made in the major cyber-law disputes of the day. From the Stop Online Piracy Act, criminal copyright enforcement, and a plurilateral free trade treaty, to United Nations control of the Internet, the European Union’s proposed right to be forgotten, and the revelations of pervasive NSA surveillance, cyber-law controversies show that we are still seeking to translate free speech values into the Information Age. How we approach these disputes will determine the extent of government censorship, private third-party censorship and self-censorship. This article offers a framework for resolving cyber-law disputes, duly attendant to their speech implications.
Download the paper from SSRN at the link.