A new draft of mine was posted on SSRN today; it is a short symposium essay called Virtual Crime, Virtual Deterrence: A Skeptical View of Self-Help, Architecture, and Civil Liability. (To download it, click on the link and scroll down to the “download” button.) The essay is forthcoming in the inaugural issue of the Journal of Law, Economics & Policy. Here is the abstract:
This essay offers a skeptical view of recent proposals to deter cybercrime by imposing civil liability on ISPs, permitting self-help, and architecting cyberspace. It contends that these proposals reflect in varying degrees a common conceptual mistake: overreliance on the metaphor of the Internet as a virtual place. The overreliance on virtual metaphors incorporates assumptions valid in the physical world that break down when applied to the Internet.
To approach computer crime in a realistic way, commentators should focus on the physical reality of how the Internet works. Both virtual and physical perspectives of the Internet can offer important lessons, but any strategy to deter computer crime must look viable given the physical reality of the network. Strategies that rely too heavily on the virtual metaphors of cyberspace are likely to rely on assumptions drawn from the physical world that do not apply to the Internet; the process of importing concepts from physical space to the virtual world of cyberspace will introduce errors. Overreliance on virtual metaphors will often misrepresent how online crime occurs and thus how it can be deterred. Where virtual metaphors govern, proposals to deter computer crime through civil liability and social norms will prove less effective in practice than they may first appear in theory.
The essay begins by exploring the tension within Internet law between modeling the Internet using virtual reality and physical reality, with a special emphasis on what this tension means for developing arguments about deterrence and computer crime. The analysis explains that a physical description of the Internet differs dramatically from a virtual description of Internet applications, and argues that any effective model for deterring computer crime must be rooted in the former rather than the latter. This insight is then applied to three prominent proposals. It begins with offensive self-help, focusing on Michael O’Neill’s article Old Crime in New Bottles: Sanctioning Cybercrime; turns next to architecture regulation, focusing on Neal Katyal’s essay Digital Architecture as Crime Control; and concludes by studying the myriad proposals in favor of civil liability for third-party computer operators.
The essay builds on an earlier article of mine that addresses how the difference between virtual reality and physical reality defines many disputes in the area of Internet law. The final version of that article is available here.