Cracks in the Foundation: The New Internet Legislation's Hidden Threat to Privacy and Commerce

Abstract

Scholarship to date has focused on the legal significance of the novelty of the Internet. This scholarship does not describe or predict actual Internet legislation. Instead of asking whether the Internet is so new as to merit new law, legislators and academics should re-evaluate the role of government in orchestrating collective action and change the relative weight of enforcement, deterrence, and incentives in Internet regulations.

A perfect example of the need for this new approach is the recent CANSPAM Act of 2003, which was intended to protect personal privacy and legitimate businesses. However, the law threatens both of these interests, because it does not recognize either the limits of enforceability, or the enhanced possibilities for incentives offered by the decentralized architecture of the Internet.

Keywords: internet, regulation, legislation, collective action, encryption, hack, spam, email, hash, CAN-SPAM Act, cyberlaw, privacy, e-mail