52 Pages Posted: 21 Mar 2004
Cyberspace is being propertized at a dizzying pace. Boundaries are being drawn, electronic fences are going up and territory is being staked out all over the Internet. What was once - or is at least idealized as - an electronic commons, now more closely resembles a series of gated communities than an open range. This closing of the commons raises, in turn, serious concerns of access, since it makes it evermore possible for those with resources to erect fences and keep out unwanted visitors. Assuring equal access to cyber-resources is nonetheless an essential civil rights issue; access reinforces democratic ideals, helps guarantee equal opportunity to cyber-resources, and combats status discrimination. This article therefore argues that it is appropriate to turn to the property law principle of public accommodation. Recent scholarship documents the post-Civil War narrowing of the antebellum common law right of access from a regime permitting almost complete access to the post-Civil War principle of public accommodation, which, paradoxically, restricted access to large segments of the public. In light of this scholarship, the article 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 and the underlying goals of public accommodation law today. Given the reach, influence and potential of the Internet, this more expansive approach should, the article explains, be applied to regulation of today's cyberplaces. 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 approach to ownership.
Keywords: internet, cyberspace, public accommodation, discrimination, property theory
JEL Classification: J70, J71, J78, K11, K12, K23, L86
Suggested Citation: Suggested Citation
Crawford, Colin, Cyberplace: Defining a Right to Internet Access Through Public Accommodation Law. Temple Law Review, Vol. 76, pp. 225-276, Summer 2003. Available at SSRN: https://ssrn.com/abstract=518525