The Closing of the Electronic Commons and Property Rights in the Electronic Age: Is the Internet a Place of Public Accommodation?

Abstract:     
Lawrence Lessig is only the most prominent of student of cyberspace who worries about the increasing privatization of Internet control. Current legal challenges, from the Internet privacy case of Intell v. Hamidi to a consent order concerning Passport, Microsoft's online identification system, attest to a vigorous struggle over private Internet control versus public Internet access. Professor Crawford argues that, in order to assure widespread access, both as a means of serving democratic ideals and providing equal opportunity to Internet resources, it is appropriate to turn to the property law principle of public accommodation. In light of recent legal history scholarship documenting the post-Civil War narrowing of the antebellum common law "right of access" into what we today think of as the law of public accommodation, Professor Crawford suggests that treating the various layers of the Internet - its physical architecture and cables, its code and its content - as places of public accommodation is consistent with the earlier, more egalitarian common law tradition. Given the reach, influence and potential of the Internet, this more expansive approach should, he maintains, be applied to regulation of today's cyberspaces. While conceding that conceptual problems exist in order to conceive of Internet "space" as equivalent to real space, the Article nonetheless contends that a focus on the right of access and a corresponding duty to serve can resolve any hesitation in approaching regulation of the Internet as a place of public accommodation. It therefore outlines various approaches to the regulation of the Internet's parts as places of public accommodation, both in light of decided case law (mostly in the disabilities rights context - the most active area of public accommodation jurisprudence today) and contemporary property theory that insists upon a multi-faceted, entitlement-based, distributive justice approach to ownership.

Keywords: internet, cyberspace, public accommodation law, privatization, right of access, duty to serve, status discrimination, property law theory

JEL Classifications: K110, K190, K300

Working Paper Series