Cyberspace: The Newest Challenge for Traditional Legal Doctrine

Cyberspace is a complex of electronic networks that cross state and national boundaries. Novelist William Gibson coined the term to describe the space in which his characters interacted.(1) Because cyberspace recognizes no geographic boundaries, its full social, political, and economic potential has yet to be realized.(2) The advent of such a radically new phenomenon as cyberspace tests the adaptability of the legal system: Can our ancient and tradition-laden system come to grips with the novel legal issues posed by the cyberspace network? United States v. Maxwell,(3) a 1996 decision by the United States Court of Appeals for the Armed Forces, is one of the first cases to struggle with those issues. The thesis of this article is twofold. First, this article argues that in the final analysis, the Maxwell court erred. Second and more importantly, the article contends that despite its error, the Maxwell decision demonstrates the adequacy of the traditional judicial system to meet the legal challenges cyberspace raises. I. CYBERSPACE: THE NEW PHENOMENON In cyberspace, individuals communicate through a wide variety of private, commercial, governmental, and educational networks. Users include individuals, group systems with intranet communications, and group systems with Internet communications. Electronic communications can be conducted by satellite or hard telephone lines. Cyberspace not only employs multiple communication networks; it is multifunctional. Individuals may communicate in real time by entering a chat room and typing messages to one another. These messages are akin to a note or a letter--to another individual or a group of addressees.(4) There are also news groups [which] serve groups of regular participants, but these postings may be read by others as well. There are thousands of such groups, each serving to foster an exchange of information or opinion on a particular topic ....(5) In addition to being a medium through which to send notes back and forth, cyberspace functions as a vast library including millions of readily available and indexed publications and a sprawling mall offering goods and services.(6) The typical home computer with a seemingly modest ten megabytes of storage capacity has the equivalent capacity of approximately 100,000 typewritten pages.(7) Although cyberspace holds tremendous promise of economic, educational, medical, and political benefits, such gains entail potential costs to personal privacy.(8) When people are surfing through cyberspace, online companies can track them, compile information about them, and then sell the information.(9) Additionally, law enforcement officials may cruise the Internet in search of child pornography or software modified in violation of copyright or contract law.(10) Information about computer users can easily be acquired from outside the premises where the computer is located because computers emit electronic signals.(11) A cathode ray tube (CRT) can monitor computer activity by remote scanning.(12) Although microspy equipment is not as widely available as radio scanners, the systems work virtually the same way.(13) The emerging issue is whether existing statutory and constitutional legal doctrines will prove adequate to the challenge of curbing these formidable threats to privacy while still permitting cyber-space to perform its useful functions. II. THE TRADITIONAL LEGAL FRAMEWORK: STATUTORY AND FIRST AMENDMENT DOCTRINE The focus of this article is the extent to which cyberspace users enjoy privacy protection under the Fourth Amendment. To sharpen that focus at the outset we must distinguish this topic from related legal doctrines impacting cyberspace. A. Non-Constitutional, Statutory Protection, 18 U.S.C. [subsections] 2510, 2701 The 1986 Electronic Communications Privacy Act (ECPA) prohibits the manufacture, possession, advertisement, or distribution of any device that can be used for surreptitious interception of electronic communications. …