Rights and Responsibilities of Participants in Networked Communities (1994)

Computer-mediated communications are now several decades old. In that time, the power of computer technology to change the nature of communication has been amply demonstrated. Early pioneers in the use of computer-mediated communications had some glimmerings that a new medium for discourse was about to emerge, and in recent years an incipient large-scale interest in the use of such communications has proved their forecast to be correct.

At the same time, this large-scale interest has prompted and indeed necessitated serious attention to the social issues that surround the formation and evolution of communities on electronic networks. These issues are complex and difficult to resolve.

Networked communities are beginning to grapple with the rules that govern (or that should govern) behavior on electronic networks. Less formal rules of conduct and the means to enforce these rules are emerging as people acquire more and more experience with electronic networks. In many cases, behaviors sanctioned by those who

have had extensive experience with electronic networks are evolving even as newcomers to the technology are having their first networking experiences. The relevant legal regime is unquestionably changing, as new interpretations of existing laws and even new laws are being enacted, but its presence and potential influence on human behavior on electronic networks cannot be denied. Technology surely has a role in providing tools that help to guide electronic behavior along socially acceptable lines or help to mitigate the consequences of miscreant electronic behavior, but the ultimate issues in this domain are social and political.

Some commentators and analysts believe that the emergence of social norms should be left primarily in the hands of the people who will be affected (i.e., the users of electronic networks). A legal regime (statutes plus the case law that interprets those statutes) that does not make sense when applied to electronic networks will tend to erode the ethical values on which that regime is founded. As a result of such pressures, a set of new values will evolve that will ultimately constitute the basis for a new legal regime. No one is smart enough to take into account all of the ethical issues that will emerge, and so uncertainty is inherent in a situation in which social norms grow and evolve rather than being created de novo.

At the same time, the "natural" evolution of old behaviors into new ones may be problematic and perhaps socially undesirable. A maladapted set of social norms could result for several reasons. One reason is that these rules might evolve in the absence of a real understanding on the part of new users regarding the power and reach of computer-mediated communications (examples are provided in Box 8.1). As George Perry pointed out, "Individuals have never had a megaphone the size of the cyberspace megaphone. Our society has to figure out what to do with this power." Moreover, with new problems come new forms of solutions. Perry recalled the example of the president of a business who complained about something that was on a PRODIGY bulletin board. When told that he could post his own message on the bulletin board to tell people what was really going on, he said, "Oh! You suppose I could do that?" and the problem was solved by that simple action.

A second reason is that electronic networks erase many of the physical barriers—such as geography—to interaction. One important consequence is that electronic networks can bring together people with radically different points of view, moral persuasions, and interests. For example, it is clear that different cultures value different ethical norms, and as a result, different behaviors are considered ethical or unethical depending on the culture. To the extent that people

from different cultures must interact, conflict might be expected. A second consequence is that government and other institutions whose influence is determined largely by the physical control of borders and political boundaries will find that influence challenged by continuing increases in electronic commerce and social discourse.

A third reason is that electronic networks can act to raise barriers with impunity. People who live within the same physical community are subject to important homogenizing influences (e.g., they are exposed to the same newspapers and radio and television broad-casts), and arguably these influences support a common set of values. To the extent that a given electronic community of people is closed to outsiders, traffic within that community can be made immune to external scrutiny and indeed can be entirely insulated from the outside world. Thus, it is not impossible to imagine the existence of different electronic communities that share nothing but the same network protocol.

For these reasons, policymakers are understandably nervous about a legal and social environment that is both fraught with ambiguity and whose future evolution is also uncertain. Thus, the challenge for society at large is to balance the desirability of "natural evolution" against its relatively immediate need for guidelines to mitigate the risks of entirely unrestricted behavior that could affect large numbers of new users. Although even more strenuous outreach efforts to the electronic public and to policymakers will be necessary, an increasing degree of discussion and dialogue between technologists and policymakers in recent years gives rise to the hope that society is beginning to meet this challenge.

Taking a retrospective view of the November 1992 workshop and the February 1993 forum and other events addressing similar issues, it has become clear that several concerns recur consistently. As with many social tensions, an individual is much more likely to attempt to balance competing interests rather than side completely and totally with one of these interests. These points of tension include the following:

• The extent to which the government should regulate behavior on electronic networks. For example, a benign view of government would lead people to be less concerned about governmental malfeasance and to be more willing to leave to government the discretion to make appropriate judgments that balance competing concerns. For these people, the law is a way to codify ethical principles and to provide a uniform standard of behavior to ensure order, set social expectations, and provide continuity. A correlate of this position is the belief that society should understand—in advance—how it intends to deal with rare problems that may pose severe difficulties for the individuals affected. Finally, people who believe in an active role for government in these matters are often motivated to find a high degree of certainty in their dealings with the communities involved.

  On the other hand, a fundamental distrust of government would make many people unwilling to give government the benefit of any doubt at all; such people would insist that the role of government in regulating behavior be kept to a minimum, and, fearing inappropriate government action, they would oppose government controls or regulations on computer technology and advocate privately negotiated (or community-established) "rules of the road." Such people would believe that in many cases, the law is too heavy-handed and

largely incapable of taking into account mitigating or aggravating factors in deciding what should be done in cases of inappropriate behavior, that an absolutely uniform standard is fundamentally undesirable, and that some tolerance of ambiguity is both necessary and desirable.

• The role of the marketplace in influencing behavior. The view that marketplace forces can and should regulate and define acceptable behavior on electronic networks would lead people to be less concerned about abuses that may be rare, even if they are severe. These people would assert that large-scale systematic abuse can be controlled by public opinion and pressure and deny the need for laws to regulate their behavior. On the other hand, public opinion and pressure have not entirely eliminated crime and other antisocial behavior in other domains, and so it seems unlikely that the marketplace will entirely prevent computer abuse. An additional dimension of this question is the extent to which social defenses against undesirable behavior should be based on matters of utility or economic feasibility or on matters of fundamental rights.

• The value of sharing information freely versus keeping information private or proprietary. The Internet is the preferred medium of communications for much of the scientific community, a community that highly values the free exchange of information. At the same time, the livelihoods of many people depend on their creativity and intellect, and they have an understandable desire to protect the compensation they may receive for their intellectual work. In other cases, individual desires for privacy may conflict with community interests in disclosure. At root, the fundamental difficulty is that as a society, we regard some information as appropriately sharable and other information as appropriately private or proprietary, and there are no clear guidelines for distinguishing between the two.

• The need for law that specifically relates to behavior on electronic networks. The assertion that network-specific law is needed represents a claim that the current legal regime is not adequate for application to electronic networks, perhaps as the result of an enabling technology that changes much more rapidly than the relevant legal regime. Nevertheless, it is clear that in the absence of network-specific laws, the application of existing laws to electronic networks will have to be interpreted in light of the new capabilities and limitations of the medium.

• The extent to which continuity with past precedents is desirable. Users and providers of network services are, like it or not, inevitably bound by the constraints of the environment in which they operate. But they may have different beliefs about the desirability of such

continuity. The belief that continuity is desirable is one aspect of a belief in the value of consistency and social stability. This position would lead people to believe that social continuity, extended to electronic networks, will give users of electronic networks a firmer grounding in what the norms of behavior are (or should be). Those with a weaker belief in the virtues of continuity tend to see electronic networks as an opportunity for designing the ground rules of a new society from scratch and avoiding the socially undesirable difficulties that continuity with the past has created. In addition, they tend to be more concerned about not foreclosing opportunities that the new technology may provide.

• The nature of informed consent relevant to providing information. Although all stakeholders endorse in principle the idea that a user of electronic networks making an agreement should give his or her informed consent as a part of that agreement, there is debate over what notions of informed consent should be applicable. Some believe that informed consent should be predicated on understanding the general purposes of the information collector. Others believe that true informed consent requires that all of the possibilities (or perhaps a number of examples that illustrate the true range of possibilities) for the disposition of information be made available to the individual.

  A second dimension of the informed consent issue is the disposition of individuals who express no preference or inclination regarding their putative rights on electronic networks. As a general rule, there is a high degree of consensus that the wishes of individuals who explicitly choose to participate or agree or who explicitly decline to participate or agree should be honored. The debate is over the relative propriety of "opt-out" nonagreement (an agreement that applies unless the individual explicitly declines) and "opt-in" agreement (an agreement that applies only if the individual explicitly accepts). There does seem to be something of a consensus that when the potential consequences of an agreement are more severe, opt-in agreement is more desirable. But there is argument over what counts as a severe consequence.

The description of these themes is oversimplified, and it is doubtful that any single individual could be associated solely with any one extreme. It is clear, however, that the positions taken with respect to these themes are reflections of personal value and social ideology or perhaps misunderstandings about how the legal system works, rather than the results of technical deliberation.

In almost none of these situations does electronic networking raise fundamentally new issues. Still, even when old concerns are magnified

through use of this technology, dispute and argument become apparent. The reason is that to the extent that these old concerns have been resolved in the past, their resolution has come about not because the concerns have disappeared or the various stakeholders have changed their minds, but because political compromises and the need to move forward have driven decisions. Thus, resolution very much depends on the circumstances of the moment. Networking technology reopens traditional debates largely because it threatens the status quo that results from a given configuration of circumstances; with new circumstances, new compromises become necessary and thus the same fundamental questions need to be reexamined.

If this is true, the debate over social norms on electronic networks, in form and even in structure, will not differ much from the debate over abortion rights, school choice, sex education, crime, welfare reform, or any other controversial social issue. This is not to say that the debates should not be taking place, but only that our hopes about what such debates can accomplish should be moderated. These debates will not resolve fundamental issues or even result in consensus, but they can serve an educational role, illuminating and illustrating issues and providing alternative visions of the future for the concerned public. Ultimately, the debate will be resolved just as all debates over social philosophy are resolved: over time and with a great deal of effort in the courts, newspapers, schools, places of religious worship, and other public forums for argument.