Law in a Digital World

Introduction

Twain's Challenge: Travelling Into Cyberspace

In Life on the Mississippi, Mark Twain described his lifelong fascination with the Mississippi River and with the influence that the river had on the people and towns in the surrounding area. Through a series of stories and anecdotes about river life, Twain portrays the river not simply as a moving body of water, as a geographical entity, but as a dynamic component of life and culture in that time and place.

One of Twain's most telling experiences occurred when, as a young man, he was serving as an apprentice to a riverboat captain. While at the helm one day, Twain perceived danger lurking under the surface and, without consulting the captain, suddenly changed course. The captain, a man named Bixby, immediately asked him to account for his action and Twain replied that he had seen an underwater hazard, a bluff reef, just ahead. Bixby, however, declares that Twain has made a mistake and that he should resume the original course. Twain answers,

"But I saw it. It was as bluff as that one yonder."
"Just about. Run over it!"
"Do you give it as an order?"
"Yes. Run over it!"
"If I don't, I wish I may die."
"All right; I am taking the responsibility."
I was just as anxious to kill the boat, now, as I had been to save it before. I impressed my order upon my memory, to be used at the inquest, and made a straight break for the reef. As it disappeared under our bows I held my breath; but we slid over it like oil.
"Now, don't you see the difference? It wasn't any thing but a wind reef. The wind does that."
"So I see. But it is exactly like a bluff reef. How am I ever going to tell them apart?"

Bixby responds that he cannot really explain how to tell them apart but that "by and by you will just naturally know one from the other." For Twain, looking back on this some years later,

[i]t turned out to be true. The face of the water, in time, became a wonderful book - a book that was a dead language to the uneducated passenger, but which told its mind to me without reserve, delivering its most cherished secrets as clearly as if it uttered them with a voice.⁽¹⁾

This is a book about law's journey, a journey that is taking the law in new directions and to new places. Where is law moving from? From many different places. From libraries with large and impressive books. From courts in august buildings. From the paper on which contracts and documents are printed and from the filing cabinets in which they are stored.. From the offices in which lawyers interact with clients. From a familiar and stable information environment. Perhaps even from one part of our minds to another.

And where is law going? To a place where information is increasingly on screen instead of on paper. To a place where there are new opportunities for interacting with the law and where there are also significant challenges to the legal profession and to traditional legal practices and concepts. To an unfamiliar and rapidly changing information environment, an environment where the value of information increases more when it moves than when it is put away for safekeeping and guarded. To a world of flexible spaces, of new relationships, and of greater possibilities for individual and group communication. To a place where law faces new meanings and new expectations.

Law's journey, of course, is also our journey. We are a legalistic culture or, at least, we have been one, and we employ law frequently as both a tool and a symbol. Law is a process that we hope will shape behavior, settle disputes, secure rights and protect liberties, even achieve justice. It is a social force with many components, something that touches many other institutions and, in turn, is influenced by them. It is a set of rules and doctrines, an institution that embodies cultural values and traditions, and it is also a profession. It can, of course, be much less than this by preserving injustice, violating principle, and denying the realization of rights. Yet, in our personal and business lives, the law is almost always there, generally in the background but, on occasion, alongside us in the foreground.

The new legal landscape that is emerging is, at present, not very easy to see. Part of the reason for this is that the future of law is not to be found in impressive buildings or leather-bound books but in small pieces of silicon, in streams of light, and in millions of miles of wires and cable. Thus, to understand the changes that lie in store for us it is necessary to look beyond the surface of the law, which still looks fairly familiar and traditional, to much that is hidden from view. Unlike Twain, however, most of us have no experienced captains standing nearby to explain what is real and what is illusion, what facets of the new technologies we should pay careful attention to and what we can ignore, what is a distraction and what is not, what is a significant force for change and what is not, what it means that letters affixed to paper by printing presses are increasingly appearing as flashing lights on a screen or as strings of ones and zeros encoded in electronic form, and what are the bluff reefs and what are the wind reefs?

For Twain, the shimmering and beguiling "face of the water" eventually became reliable and informative, "a wonderful book." Today, more and more of us are spending time staring at the computer screen, something that often serves as a replacement for books and for works on paper. Indeed, in many of its uses, the computer seems to be much more than a "wonderful book," as it allows us to obtain information and work with information in ways not possible previously. Yet, it is important to realize that the fluorescent screen, while revealing and, in many ways, miraculous, is also quite different from a book. It has some qualities of the book but, perhaps surprisingly, it has qualities of the water's surface as well. Unlike the book but similar to the "face of the water," this electronic entrance to the digital world presents us with changing forms and images, with resemblances and illusions, with data that comes and goes, with something dynamic, colorful, and animated. The strength, and at times the weakness, of the book, open or closed, is that it lacks these qualities, that it is an information source that remains constant over time and space, that it is stable and trustworthy, that it is typically black on white, and that it is standardized and uniform.

Some parts of our journey from a print world to an electronic one are quite easy to see. There are, for example, powerful computers sitting on increasing numbers of desks and in increasing numbers of homes. We are aware that microchips affect the operation of many devices we come in contact with daily. Even if one does not own a computer or work with one, no individual can pass more than a few minutes before coming into contact with some process linked to a computer. Cash registers, automated teller machines, gasoline pumps, elevators and soda machines, for example, rely on microprocessors, and virtually no printed information reaches a reader without passing through some stage in electronic form. Indeed, it is estimated that in the course of a single day, one comes in contact with over one hundred and fifty tiny computers embedded in cars, exercise equipment, copying machines and other everyday devices.⁽²⁾ The late sociologist Rose Goldsen once wrote that, "it is still possible to turn off the television set. It is not possible to turn off the television environment."⁽³⁾ The same can now be said about the computer and the computer environment.

The purpose of this book is to help us understand and come to terms with the nature of the new information technologies and how they are interacting with one of our most central societal institutions, the law. In confronting these technologies, we too are faced with Twain's challenge of understanding clearly what is happening beyond our field of vision. Some of us are engaged daily in the use of information in electronic form. We employ powerful tools to acquire, work with, and create information. Yet the impact of the technologies on legal processes, institutions, concepts and doctrines, on what is occurring beyond the "face of the water," is unclear. Others of us are sitting on the river's edge, touched at a distance by an electronic stream of words, images and sounds that are encoded in digital form. All of us hear predictions of "information superhighways," of hundreds of channels and choices, of interactive shopping and "electronic malls," and of "information at one's fingertips" and "electronic libraries." In such an environment, we all need a sense of what is real and what is illusion, of what is permanent and what is transitory, of what will have a deep impact and what can be ignored.

We live in an era of historically significant transitions, of rapid and deep change occurring in institutions, in practices, in perspectives, and in values. It is a period of significant political change, as powerful nation states become impotent overnight, and of considerable social change, as the makeup of families and even the concept of a family, becomes different from what it once was. It is an age of large scale economic change, as new global entities take root and previously powerful ones decline. Change is global and local, technological and social, collective and individual. Change, in this time period, occurs so rapidly that it is, even now, becoming a little difficult to remember the recent time when the U.S.S.R. and IBM were preeminent powers in the political and economic spheres, and when three broadcast networks virtually monopolized television.

The law is an intriguing area in which to study change since it has links to all other important institutions. It is a focal point that sends out rays that touch economic activity, political interests, ethical values, and individual concerns. For the almost one million lawyers in the United States, the law is a livelihood and change raises questions of economic well-being and security. For politicians, change in law affects the process of allocating resources, of establishing standards of behavior, and of responding to citizen desires. For citizens, institutions and corporations, change in legal processes, concepts and values touches traditional relationships, aspirations for achieving a more just society, and valuable property interests. As law feels the impact of the new technologies, change will not be located in only one area. Rather, as legal change occurs, many different facets of our society will be affected.

The principal thesis of this book is that change is linked to our use of new information technologies. The new information technologies are particularly relevant to law because law is oriented around information and communication. Whatever definition one gives to the law, whether it is considered a profession, or a method of resolving disputes, or a process to bring about justice, or a facade to protect the status quo, or a means to secure rights and regulate behavior, it is always concerned with information. What a general once claimed about the military is true of law as well: "If you ain't got communications, you ain't got nothing."⁽⁴⁾ Or, as legal philosopher, H.L.A. Hart stated in a more scholarly style, "[i]f it were not possible to communicate general standards of conduct, which multitudes of individuals could understand, without further direction, as requiring from them certain conduct when occasion rose, nothing that we would now recognize as law could exist."⁽⁵⁾

Law can be looked at in many ways but in every incarnation, information is a central component. As one lawyer recently wrote, "from the moment we lawyers enter our offices, until we turn off the lights at night, we deal with information."⁽⁶⁾ Information is the fundamental building block that is present and is the focus of attention at almost every stage of the legal process. Legal doctrine, for example, is information that is stored, organized, processed, and transmitted. Legal judgments are actions that involve obtaining information, evaluating it, storing it, and communicating it. Lawyers are persons with expertise in and control over a body of legal information. As disputes are settled, rights established, values clarified, and behavior regulated, the participants in these processes work with information and engage in a struggle over information. Indeed, one way of understanding the legal process is to view information as being at its core and to see much of the work of participants as involving communication. In this process, information is always moving, from client to lawyer, from lawyer to jury, from judge to the public, from the public to the government, and so on.

Legal scholars have had some interest in the appearance of new technologies generally. The automobile, for example, is recognized as having caused a host of changes in the law - in tort law and in environmental law, for example. Other new technologies, such as nuclear power or biotechnology or medical advances, have caused a reassessment of several areas of legal doctrine. Yet, information technology is different and presents the law with a very different kind of challenge. It is different because, as noted, the law runs on information and because much of law is information. Thus, all of law is not affected by the automobile because law is not composed of automobiles. But law is, in almost all of its parts, dependent on communication and information. A change in how information is used, therefore, brings with it the potential for far broader change in law than does any other kind of technological shift.

At the heart of law's relationship with information during the last five centuries has been the technology of printing. In a previous book, The Electronic Media and the Transformation of Law,⁽⁷⁾ I examined many links between law and communications media, and explored how law has changed throughout history as new communications media have developed. In particular, I pointed out how many of the cornerstones of modern law, the concept of precedent, the evolution of the legal profession, the development of some legal doctrines involving information, such as the First Amendment, privacy, obscenity, and copyright laws, are linked to the capabilities of printing, the communications medium which has been dominant for the last five hundred years.

Printing was the first mass medium and the first medium to enable large quantities of uniform, reliable and authoritative information to be distributed widely. Printing brought about its own "information explosion" in which there were vast increases in the number of books published, in the size of libraries, and in the number of people able to read. It was also a powerful influence on change in the law. It was in the centuries following Gutenberg in which the modern legal profession developed and in which a new framework for protecting the individual emerged. It was a period in which the law that was authoritative became what appeared in books rather than in custom. It was an era in which

Western legal tradition began to be characterized by print. Today, our legal consciousness is still demarcated and mediated by printed texts. Whether, for example, in the formation and interpretation of wills or contracts, or in the review of court trials and legislative proceedings, the law's primary instrument remains the printed document. Wherever we turn, legal reality is shaped largely by the printed word.⁽⁸⁾

We have entered a new age in which print is being displaced by electronic informational technologies, and words fixed on paper are being joined by words (and images and sounds) appearing on screen. Are these new technologies merely more efficient versions of the old? Are they simply new containers that bring the same product to the user in a new way? Do they simply move information faster? Or, does the use of information in a new form, particularly by an institution for whom information is a highly valued commodity, change the institutions, the user and those who come in contact with the user? Does it create a new type of institution, where it is possible to do new things with information and relate to and interact with information differently? Do these changes make possible new kinds of legal relationships and allow people to interact with law in new ways? Will the law be more or less accessible than it has been? Will law and legal rights be as secure in the electronic environment? Will change in the law occur more quickly and more frequently? Will the role of lawyers change? Will we be more likely to view ourselves as insiders or as outsiders and will we identify with the law or feel alienated from it? Will the new technologies tend to reinforce the status quo or help empower the disenfranchised?⁽⁹⁾ These are, as I will explain below, some of the themes which I intend to examine.

While this book is about computers, it is not about some particular kind of hardware or software on the market today, or about which tools to use or which to buy. Its focus is also not on particular areas of law or legal doctrines involving computers. While the capabilities of some computer programs and the content of some rules of law related to communications will be considered, my main concern is both deeper and broader. New software and hardware appear awesome and miraculous and yet the changes that are coming about are not linked to any single new capability for working with information. Change in the law is not based simply on the new tools being adopted by lawyers and certainly not on any single piece of software or hardware but on the degree of difference between these tools and traditional tools the law has used. It is the ripple effect brought about by new patterns of interacting with information and with people that is leading the law, and other institutions, in new directions.

Law and media are two of society's more powerful forces. In any list of influential institutions law and media rank near the top. It is a bit surprising, therefore, that the links between the two have received negligible attention. If one looks at some of the most perceptive books about the influence of communications or computers on society, law almost never appears in the index. And if one looks at works of legal scholarship, one may find discussions of how the media should be regulated or of constitutional issues of free expression, but almost nothing else. Scholars seem to view the powerful realms of law and media as distinct and independent, each having an impact on behavior and attitudes but having little influence on each other. As Professor Peter Martin has observed, "law and lawyers are profoundly affected by changes in information technology, but for many reasons those effects receive less attention than they deserve."⁽¹⁰⁾

My view is that law and media are intimately linked institutions. While law is a powerful social force, it is not all-powerful. It responds to and is shaped by other powerful forces in society. There has, indeed, been much legal writing in recent years about the relationship of law and other forces in society, such as economics, politics, religion, race and gender. A suggestion, such as Oliver Wendell Holmes made a century ago, that "the life of the law has not been logic, it has been experience,"⁽¹¹⁾ is no longer likely to provoke much debate. What is somewhat novel is to suggest that how we use information should be considered one of the "experiences" that affect the nature and role of law in society.

At the heart of informational and legal change is the shift from printing, from letters fixed on paper, to information in electronic form, to information stored as electrical impulses and as sets of ones and zeros. In this transition period, and even later, we will not have a paperless environment but we will, more routinely, access information in electronic form, and we will employ tools that allow us to work with and communicate information in ways that are difficult, or not even possible, with letters and numbers fixed on paper. This book is an exploration of what it will mean for law, and for individuals subject to and protected by law, to exist in a digital world, a world where information is created, stored and communicated electronically. Such a legal world will be different from our legal world, one that remains largely oriented around the printed word. In a digital world, print and paper may still be everywhere, but they will not be the defining or dominant media. As a result, there will be both new opportunities and new challenges as traditions dissolve, as practices change, and, perhaps most importantly, as our thinking changes about what information means and what one can do with information change.

This is not a technical book about computers and readers who lack familiarity with computers should not feel apprehensive. This is a book about the influence of computers, about what computers can do and how they will be used, about what they will mean for an institution that for half a millennium has relied on the technology of printing to satisfy most of its informational needs. What is more important than understanding precisely how information is stored on disks or on silicon chips is understanding that information will be stored, organized, processed and communicated differently in the future, in a form that will have new capabilities, provide many new opportunities, and have important consequences for us. Just as it is possible to appreciate how much change has been brought about by the automobile without having an understanding of pistons or cylinders, it is possible, even without knowledge of the properties of silicon chips, to comprehend how computers will change our relationship with information

What is most significant about the electronic media is that they allow individuals and institutions to have strikingly new experiences with information. There is an electronic version of this book and if you are reading this on a screen rather than in print, you know that the screen image is still not as clear as the printed image but that the electronic format also empowers you in a variety of ways. You can search through the text in an instant, for example, in order to find a word or topic. You can create links between different parts of the work and, in a sense, rearrange the pages. You can connect parts of this work to other works on your computer or even to computers located elsewhere. You can make notes and highlight text with different colors, all without changing or destroying the original. You can see examples of graphics and hypertext that are discussed later in the book. You may be able to send me your reactions to the book by electronically sending messages to my e-mail address.⁽¹³⁾ These, and other capabilities, illustrate a little bit of how, when information is not fixed to the page, space and distance are less constraining, boundaries often disappear, and information becomes more malleable and flexible than we had thought possible. The existence of an electronic version, created by a person such as myself, who has no training in programming and for whom such an endeavor would have been unthinkable when my last book was published, also reveals that new modes of expression and creativity have become available quite rapidly.

Many readers of this book may not realize that they have already experienced some of the novel capabilities of digitally stored information, information that can respond to and interact with the user. For example, when you dial directory assistance and hear a voice give you a telephone number, it may be a digital voice that has responded to your request. Many of us have seen dishwashers that "talk" or cars that remind you to put on a seatbelt. The use of automated teller machines involves sending an electronic request long distances over a computer network and getting information in return. Programming a VCR to record some shows in one's absence is simply telling the computer in the VCR to respond to your individual needs and wishes.

Each of these examples illustrates how machines can acquire new capabilities once they can store and process information in electronic form. Yet, each of these machines is also, in a way, limited. These machines may be marvels compared to what existed a decade or two ago, but they are also not as impressive as they appear to be. They are, for example, usually focussed on a single task rather than a range of tasks. The talking dishwasher "knows" something about dishwashers but knows nothing about anything else. In addition, such machines will respond to the one thousandth stimulus the same way they responded to the first. Unlike even primitive living organisms, the "smart" dishwashers or VCRs of today do not change their responses over time. In fact, any change in response is a sign not that it has learned something but that it is broken. They have been "programmed" to respond to a stimulus but not to change as responses are made. Thus, they are reliable and predictable, which are appealing attributes in a machine, but they are also completely inflexible. I know of no VCR on the market today that, if programmed ten weeks in a row to record a program on Thursdays at 9 P.M., will ask the viewer whether he or she wishes future programs at that time to be recorded every week. Such a machine, which would not be very difficult to design, would reflect and act upon the recording patterns of the viewer.⁽¹⁴⁾

These electronic marvels are also limited in that they tend not to be linked to anything else. Not only do they not retain information and learn from it but there is also no sharing of information among these machines. The VCR information stays in the VCR, for example, and the dishwasher information in the dishwasher. Whether you consider these machines smart or not very smart, they are isolated machines, communicating with their owners in a very limited manner and unable to communicate at all with other machines or devices located in the home even though they all, by processing digitally stored information, in a sense speak the same language.

As chips become more powerful and software more sophisticated, and as new links are established to computer networks, more and more machines will learn and will share what they learn. In a digital world, it makes no sense to have machines that are unconnected to each other. Thus, we are rapidly seeing computers being transformed from machines that compute into machines that also communicate. For the law, this means not only that the machines of lawyers are connected to each other but that information about law reaches new places and people. Long established patterns of distributing information, patterns that are linked to the qualities of printing, are disrupted. This is a considerable force for change since, as Michael Hammer has noted, "the real power of technology is not that it can make the old processes work better but that it enables organizations to break old rules and create new ways of working."⁽¹⁵⁾

In a recent speech, a computer scientist, Tom Forester, asked the following:

What ever happened to the Information Society? Where is the Information Age? What, indeed, happened to the "workerless" factory, the "paperless" office and the "cashless" society? Why aren't we all living in the "electronic cottage," playing our part in the push-button "teledemocracy" - or simply relaxing in the "leisure society," while machines exhibiting "artificial intelligence" do all the work?

***

The truth is that society has not changed very much. The microchip has had much less social impact than almost everyone predicted. All the talk about "future shocks," "third waves," "megatrends" and "post-industrial" societies must now be taken with a large pinch of salt. Life goes on for the vast majority of people in much the same old way. Computers have infiltrated many areas of our social life, but they have not transformed it. Computers have proved to be useful tools - no more, no less. None of the more extreme predictions about the impact of computers on society have turned out to be correct. Neither Utopia nor Dystopia has arrived on Earth as a result of computerization.⁽¹⁶⁾

Forester may be correct that, at present, "life goes on for the vast majority of people in much the same old way." A film made about the home life or business life of most citizens would not have the interest we expect from a science fiction movie. We do not go off to Mars for a vacation, our homes have some intriguing mechanical devices and conveniences, but we are still eating and sleeping and doing recreation in many of the same ways people did these things prior to the computer.

Forester seems to want to see more exotic uses, such as, perhaps, totally electronic courtrooms, where there are no judges at all, peopleless courtrooms as well as paperless courtrooms. Perhaps a society without lawyers. He seems to want a society that is so different, both in terms of the artifacts that make up the society and the way in which business is conducted, that it would look like a science fiction movie. In such a society, machines replace paper, money and workers and, perhaps, even judges, lawyers and courts.

One theme of this book is that we need to stop thinking in terms of replacements, of making traditional institutions disappear, and instead observe the process of displacement, of changing patterns of orientation and operation. It is not all-electronic lawyers or electronic judges that we can expect but lawyers, judges, and citizens who interact with machines in new ways and, therefore, cause the process of law to become something different from what it has been. Such displacement may take some time to occur, particularly in institutions such as law where the paradigm of print is powerful and pervasive. Yet, the transition is ongoing and, probably by the end of the millennium, much in the law will not go on "in much the same old way."

In the book, and subsequent film, 2001, the computer named HAL attempts to take over the spaceship and control the functions performed by the pilots. This is the image of replacement, which is embodied in the question of whether computers can replace judges or lawyers. What is occurring, as we travel into cyberspace, actually is a much more complicated process than replacement. Legal professionals, legal methods, legal concepts and legal institutions are not being replaced, at least not yet, but they are being displaced in that they are accommodating themselves to a new environment and a new orientation toward information is beginning to color how decisions are made and actions taken.

Most persons view the new technologies through the lenses of convenience and efficiency. New machines are considered to be devices that save time, that allow familiar tasks to be performed more quickly than before. It is, indeed, true that virtually any informational task can be performed more quickly using a computer. Thus, machines are purchased in order to obtain information more quickly, to write and edit more quickly, to calculate one's taxes more quickly, even to draw pictures more quickly. One of the principle suggestions of this book, however, is that the long term impact on law is revealed more by focusing on the dimension of space than on the dimension of time. The new media do affect time in many ways, but they also affect space, in ways that are generally not noted or thought about.

In the realm of space and distance, there are many novel, indeed science fiction-like, developments taking place. We do not travel frequently in outer space but, as I shall describe later, computers are space machines, machines that make space and distance much less of a barrier to sending information and to forming relationships than they used to be. We cannot "beam" individuals between home and office but we do "beam" information between machines on different parts of the globe. We cannot shrink people or objects but we can shrink information, in the sense that all of the words in this book can easily fit on an ordinary disk and an entire encyclopedia can be placed on a single CD-ROM. We become able to use distant computers as easily as we use our own and we can interact with people located far away as if they were next door. We can obtain information that was previously distant, not only in the sense that it was far away but also in that it was inaccessible because special skills were required in order to access it. When computer networks move millions of bits of data in a second and when computers perform millions of operations per second, we find it possible to act, in a sense, as if we have been transported from one place to another.

When I was writing my last book, in the late 1980s, it was clear to me that change was on the horizon but, other than perhaps LEXIS and WESTLAW, there were few spatial miracles that seemed to have taken hold in the law. At present, much still remains on the horizon but the level of technological activity, particularly in the area of computer communications, has grown enormously. The Internet, which was largely unknown in 1989, today links over one hundred and thirty countries and twenty five million individuals, and is growing at a high rate. Law, as will be described later, has a serious presence on the Internet, in terms of information that can be obtained and people who can share information about law. What may be the most novel legal profession-communications experiment, Lexis Counsel Connect, which is described in Chapter Seven, uses the new media to, in effect, make the contents of law firm filing cabinets available on a network. All of these developments remove constraints of distance and touch the nature of relationships and the ability to control information.

The emerging digital world is often referred to as cyberspace. Cyberspace is a term that was coined by a science fiction writer, William Gibson, approximately ten years ago in his novel Neuromancer.⁽¹⁷⁾ In Gibson's vision of the future, individuals will become able to place themselves in a new environment, or at least feel that they are in a different environment, by allowing a computer to control the sensory stimuli, the images, the sounds, and the smells, that they receive. Since our reality, or our perception of reality, is determined by what we see, hear, feel and smell, a machine that monopolizes sensory intake and substitutes the sensory stimuli of some other place or time, can provide us with an alternative reality and allow us to feel as if we are in a different place or time. By sitting in a new kind of "electric chair," one could leave one's own environment and enter a new environment. One could see, hear, feel and experience things in "cyberspace" just as one might experience one's physical reality.

I do not use word "cyberspace" exactly as Gibson did nor do I suggest that Gibson's model will come true. I shall suggest some ways of considering cyberspace in Chapter One but my main purpose in using the term is to emphasize that the electronic media touch us in ways that do transform our environment, provide us with many new experiences, change our perception of reality, and perhaps even present us with a new space, or the equivalent of a new space. In this new environment, "information is the currency - a creative force more valuable than a thousand gold mines."⁽¹⁸⁾

Cyberspace, as used in this book, is a designation for a mature electronic culture, one where electronic networks are much more fully established than they are today, one where many different kinds of data and stimuli can be instantaneously communicated around the globe, and one where the electronic means at our disposal to acquire and process information are richer and more developed than they are today. What cyberspace represents is a new order, a new vision, a new set of possibilities, interactions and relationships, all of which we acknowledge are linked to new and powerful means for relating to information.

One of the ironies concerning Gibson's fictional electronic world is that his book was published in 1984. As such, it seems to me to call for comparison with the book that dominated public attention at the beginning of that year, George Orwell's 1984. Orwell's book was not intended as a prediction of the future but it was frequently taken as such. For those who believed in it as a predictor. it turned out to be a faulty vision, largely because it was premised upon a critical misunderstanding of the nature of the new media. Orwell assumed that control of the flow of information would be more easily accomplished in an age of electronic media than in an age of print and that the authoritarian world of Big Brother would naturally emerge from this. The reality of the electronic medium, however, is quite the opposite, in that it is among the most volatile and hard to control of the different forms of communication. 1984 did serve as a reminder of the evils of any society where the flow of information is controlled and Gibson's cyberspace also might be most beneficial to us if it is looked at in a similar manner, as an allegory or metaphor rather than factual prediction.

This book is about a rather large set of questions. Few of them are addressed as separate chapters or sections since they overlap and intersect with each other. They touch issues that are embedded in almost every issue linking law and media and, therefore, most of the following questions are discussed in some way in several chapters. These questions include the following:

What happens to the law when information is more plentiful, more accessible, and more malleable? What happens when information is stored not as letters or words on paper but electronically as zeros and ones? What happens when those who previously had exclusive access to some information now find that there is much broader access to it? What happens to those who have access to information they never had access to before? What happens to individuals and institutions who become aware of information that they never even knew existed before? What happens when information becomes located not in some inert source but in an interactive source? What happens when human sources become accepted as the legitimate source of authoritative information in lieu of the words of some impressive looking book? What happens when the words and letters of the law are joined by images, tables, icons, and other non-textual sources of communication? What happens when traditional figures of speech are supplanted by new ones and when the search for new metaphors to make our new information environment understandable is completed? What happens when the organization of information is determined as much by the reader as it is by the author? What happens when documents can talk back and answer some of our questions? What happens when your colleagues, the people down the hall whom you consult regularly, are not down the hall but two thousand miles away?

My goal is less to examine a series of discrete legal policies that are now vulnerable because of the qualities of the new media than to consider how our whole framework for thinking about law and working through problems in a legalistic manner are challenged by media that store, process, and communicate information in digital form. It is not simply that action needs to be taken to deal with privacy, copyright and similar issues but that the information environment is shifting and, as a consequence, the manner in which we think and speak about the means at our disposal to deal with these and other issues will be changing as well. Law is not merely a force that is used to exercise authority over others. It is, at the same time, an institution and a process that is affected by the very media it is attempting to regulate. The new media, in other words, change law at the same time that law is used to regulate the use of the new media since the two forces relate to each other in a dynamic and interactive manner.

The book revolves around four broad areas of difference between the print and electronic environments. These are methods of distributing information (electronic networks versus physical transportation), methods of working with information (actively interacting with machines in addition to reading and writing), methods of graphical and non-textual expression and communication, and new modes of organizing information (hypertext versus linear modes of organization). These changes touch not simply lawyers or courts but citizens who rely upon the law, groups affected by the law, and persons whose work is on the borders of the law. They involve new patterns of interaction and new relationships between the state, citizens, groups, and institutions. They involve computer use at a level beyond the common applications of word processing, databases, and spreadsheets. They do not simply accelerate tasks we are already engaged in but encourage us to think and act in new ways.

The first of these differences between the print and electronic environments concerns the national and international communications links that are rapidly being established and that will make telephone and television, our current electronic means for sending words and pictures great distances, seem fairly primitive by comparison. This is the part of the digital world that has been labeled the "information superhighway," a conduit in which information travels at much greater speeds for much greater distances than on any highway. More than any highway, however, the new media are being linked in a vast network or web. Information can be shared by parties in different places. Information can be moved globally at electronic speeds. Such an environment fosters new interpersonal and institutional relationships. Distances between people and accessibility to information changes. Sources of legal information, traditionally located in bound books, are gradually being displaced into an electronic network consisting of both electronic "documents" and humans.

A second facet of the new technological environment is that users interact with machines differently from the manner in which readers interact with books and with static pages of print. The often asked question of whether computers will replace judges is really the wrong kind of question to ask. Even if "judicial machines" never become available to actually decide cases or interpret points of law, we must still evaluate what role machines will play and what impact it will have that we are not simply reading off of the screen but are interacting with increasingly sophisticated machines. WESTLAW, for example, now allows legal information to be obtained by asking questions in ordinary English into a microphone attached to the computer. Further questions can be asked in response to what the computer displays on the screen. This is different from the kind of interaction that lawyers formerly experienced in a law library and, indeed, it opens up possibilities for non-lawyers to obtain information in ways not previously possible. This is just one example of how, as we develop machines that are more and more capable of interacting with humans, of answering questions, of framing questions, of simulating alternative outcomes of cases, or of assisting in the resolution of disputes, the nature and role of law and legal practice inevitably will change.

A third feature of the electronic culture is the changing relationship of word and image. One of the subtle effects of print was to change how words and images were used. Print, while providing us with many beautiful books of art, tended to support text more than images. It was easier and cheaper to print text than images, particularly colorful images. Partly because of this, the print world of law is a largely imageless world. In the legal worlds of print, "fine print," and "black letter law," there is little other than text. The electronic media, however, are a force that encourages the visual, that deals with color as easily as it deals with black and white, and that allows more opportunities for multi-dimensional communication. As a consequence, the image will begin to play a new role in our culture. As law succumbs to this force, it learns to communicate in new ways and to represent conflict and relationships in new ways.

A fourth quality of the new media is that they permit information to be organized more flexibly than was possible with print. Books and text encouraged linear modes of organization and analysis and the division of knowledge into discrete disciplines and categories. Indexes and tables of contents provided access to information that had been "bound" and was physically located in a single place. Placing information in electronic form makes possible new forms of organization and new modes of using information. Information which is no longer firmly fixed to paper can be used more flexibly and can reorganized in novel ways by the user. Hypertext, which permits one to move from any spot in a text to any subject of one's choosing simply by pressing a key or button, threatens many of the habits we use to think about information and to think about law. It raises questions about whether doctrines that assume that information can be contained and controlled, such as copyright and privacy, will continue to be effectively supported.

This book is largely organized as a set of alternating chapters about technology and law. The legal chapters focus primarily on the following: law libraries and accessing legal information, forming and managing contractual relationships, the legal profession, and copyright and privacy. These themes, at least, are the ones that are reflected in the table of contents, which is a convention that came into being after Gutenberg. Tables of contents provide a quick global sense of a book's content, of how it is organized, and of areas which receive the most attention. Tables of contents, however, do not reveal very much about themes that run through the book or through several chapters. My concerns certainly go beyond the topics identified in chapter headings and I hope that these larger themes become as clear to readers as those highlighted in chapter titles.

I have not attempted to enumerate or identify every area of law touched by the new media. This would require a treatise about virtually every facet of law, just as a volume about the influence of print on law would need to mention virtually every facet of our current legal order. Rather, I have tried to explore some of the currents that lie beneath the "face of the water," some dangers lurking below, and some opportunities for taking advantage of these currents of change. Donald Norman has observed that,

Technology is not neutral. Each technology has properties - affordances - that make it easier to do some activities, harder to do others. The easier ones get done, the harder ones neglected. Each has constraints, preconditions, and side effects that impose requirements and changes on the things with which it interacts, be they other technology, people, or human society at large. Finally, each technology poses a mind-set, a way of thinking about it and the activities to which it is relevant, a mind-set that soon pervades those touched by it, often unwittingly, often unwillingly. The more successful and widespread the technology, the greater its impact upon the thought patterns of those who use it, and consequently, the greater its impact upon all of society.⁽¹⁹⁾

Entering cyberspace involves understanding these non-neutral facets of technology even more than it does acquiring or using the latest hardware and software. Cyberspace, at least in part, is a state of mind and a set of habits and expectations, and the process of acclimation to this new culture inevitably takes some time and involves some difficulty. It involves understanding that information, more than physical goods, is at the center of any economy of the future, and that working with and adding value to information is becoming the core economic activity. It involves understanding that electronic information can be reworked and re-valued in new ways and that novel forms of communication inspire novel kinds of relationships. It involves recognition that one can think about this new informational environment as one thinks about many other spaces although this is also a space with magical qualities that are not found in physical spaces.

In such a space, change occurs to lawyers and other professionals largely because boundaries vanish and, in a sense, the space in which they work is no longer exclusively theirs. There are changes in how disputes occur and are settled because we interact differently in this space. There are changes in the authority and use of the law because access to this new space is different. There is change in some legal doctrines, such as copyright and privacy, because keeping something from others is more difficult in this space. There is a high level of conflict in this space, rather than harmony and tranquility, because this is an active and creative space, one in which information is more valuable when it is moved than when it is stationary, when it is reworked and changed than when it is guarded and protected. It is a space that calls for effective processes for resolving conflict and managing change. The late Robert Cover once wrote that,

We constantly create and maintain a world of right and wrong, of lawful and unlawful, of valid and void. The student of law may come to identify the normative world with the professional paraphernalia of social control. The rules and principles of justice, the formal institutions of the law, and the conventions of a social order are, indeed, important to that world; they are, however, but a small part of the normative universe that ought to claim our attention. No set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning. For every constitution there is an epic, for each decalogue a scripture. Once understood in the context of the narratives that give it meaning, law becomes not merely a system of rules to be observed, but a world in which we live.⁽²⁰⁾

The world in which we live and our world of law are now being connected in new ways with new forms of narrative and scripture that are electronic in nature. To find the meaning of a change of this magnitude is the challenge of this book.

Footnotes

Introduction

1. Samuel Clemens, Life on the Mississippi (1880), chap. 8.

2. Robert E. Calem, "In Far More Gadgets, a Hidden Chip," New York Times January 2, 1994, p. F9.

3. Rose K. Goldsen, The Show and Tell Machine (New York: The Dial Press, 1975), p. xi.

4. George Bolling, AT&T: Aftermath of Antitrust (Washington: National Defense University, 1983), p. 3.

5. H.L.A. Hart, The Concept of Law (Oxford: Oxford University Press, 1961), p. 121.

6. David P. Vandagriff, "Taking the Computer Cure," ABA J., December, 1993, p. 59.

7. M. Ethan Katsh, The Electronic Media and the Transformation of Law (New York: Oxford University Press, 1989).

8. Ronald K. L. Collins & David M. Skover, "Paratexts," 44 Stan. L. Rev. 509 (1992).

9. Jean Stefancic and Richard Delgado, "Outsider Jurisprudence and the Electronic Revolution: Will Technology Help or Hinder the Cause of Law Reform?" 52 Ohio State Law Journal 847, 855 (1991).

10. Peter Martin, "Learning the Law From Littleton to Laser Disks and Beyond,"GNN Magazine, January, 1994.

11. Oliver Wendell Holmes, The Common Law (Boston: Little Brown, 1881), p. 5.

12. quoted in Steven Levy, "The King of Software," Macworld, September, 1991, p. 67.

13. Katsh@legal.umass.edu

14. See, for example, Janet Barron, "Putting Fuzzy Logic into Focus," Byte, April, 1993, p. 111.

15. Michael Hammer and James Champy, "Explosive Thinking," Computerworld, May 3, 1993, p. 124

16. Tom Forester, "Megatrends or Megamistakes? What Ever Happened to the Information Society?" EFFector Online, Issue 4.01, December 17, 1992.

17. "Cyberspace. A consensual hallucination experienced daily by billions of legitimate operators, in every nation ... A graphic representation of data abstracted from the banks of every computer in the human system. Unthinkable complexity. Lines of light ranged in the onspace of the mind, clusters and constellations of data. Like city lights, receding..." William Gibson, Neuromancer (New York: Berkeley Publishing Group, 1984), p. 51.

18. Simeon Garfinkel, "Computer Punks and `Cyberspace'," Christian Science Monitor, August 21, 1991, p. 13.

19. Donald A. Norman, Things That Make Us Smart (Reading: Addison-Wesley, 1993), p. 243.

20. Robert M. Cover, "The Supreme Court 1982 Term, Foreword: Nomos and Narrative, 97 Harv. L. Rev. 4 (1983).