From time to time I have described myself as a ‘cyberlawyer’. When I’ve done so, I’ve had three kinds of reaction: the positive, the negative and the dumbfounded. Some people find the idea of cyberlaw almost exciting – looking to the future in a kind of William Gibson-esque way. Others look at it with derision – Easterbrook’s comparison of it with the non-existent law of the horse back in 1996 is one that echoes still. Some simply don’t understand what cyberlaw is, or what it might be.
For a long time I’ve taken the side of the first – indeed, my enjoyment of science fiction was certainly part of what led me down the path of cyberlaw – but I’m beginning to think that the other two reactions are perhaps more appropriate – though not necessarily for the reasons that proponents of either argument might have made. It’s not, as Easterbrook suggested, that cyberlaw is too much of a niche subject, nor that ‘cyberspace’ is something only of interest to geeks and nerds. The opposite. Increasingly it seems that almost all lawyers will have to learn cyberlaw – and that almost all people are becoming citizens of cyberspace.
The significance of cyberlaw within the legal community seems to be growing. The first time I went to the cyberlaw section of the Society of Legal Scholars conference, at the LSE in 2008, I sat through sessions with just a handful of other scholars – making even a small seminar room feel empty. This year, at Downing College Cambridge, it was standing room only as pretty much every session was packed beyond the capacity of the room. We had to borrow chairs from other far less popular sessions, and even thought of moving to one of the bigger venues. In other ways, too, cyberlaw seems to be becoming more mainstream. Over the last month or so I’ve been lucky enough to make contributions to two high-quality blogs well outside the realms of cyberspace – most recently writing about web-blocking for the UK Constitutional Law Group blog, and before that writing about the ‘right to be forgotten’ for the excellent INFORRM media law blog. Whilst I would like to pretend that I’ve been asked to make these contributions because of my individual brilliance, I have a feeling it’s much more of a reflection of the way that cyberlaw now impacts upon almost every aspect of law – and not just media and constitutional law.
Media lawyers need to understand the ‘new media’. Constitutional lawyers need to think about the impact of the cross-border nature of the internet on sovereignty, and the way that rights function online. Employment lawyers need to consider how social media impacts upon things like hiring and firing. Commercial lawyers need to understand electronic contracting. Intellectual property lawyers may well spend more time dealing with digital IP than anything else. Tax lawyers have to grapple with the complex issues of jurisdiction and so forth. Criminal lawyers have to look at how the rules of evidence apply to digital records, and think carefully about the legality of electronic investigatory methods. Human rights lawyers – and I consider my field to be as much human rights as cyberlaw – need to understand both the opportunities for and threats to human rights that arise as a result of the internet. And for each branch of law these are just some of the more obvious and superficial ways in which the digital world has to be taken into account – there are few areas of law where the internet doesn’t have a significant impact.
So what does this mean? Does the increasing importance of cyberlaw mean that we all have to become cyberlawyers – and hence that the whole idea of cyberlaw disappears? Will every lawyer be a cyberlawyer? Ultimately that may be so – but there’s a long way to go before that happens. The law is still finding it hard to come to terms with the internet, for all the efforts of the pioneering cyberlawyers – and the politicians are even further behind, with a few honourable exceptions. There’s also a significant rump of the legal ‘establishment’ that may have to be dragged kicking and screaming into the brave new world where ‘reality’ and ‘cyberspace’ are increasingly integrated. It’s coming, though, and faster, I suspect, than even people like me imagine.