Is Internet Space “Property?”

Earlier this year, I wrote a guest post on a blog defending the habit some people have of posting unilateral Facebook status updates attempting to divest Facebook of rights which they believe (accurately or inaccurately) that Facebook has claimed over their personal information or their intellectual property.*

We all know how these tend to look. “I hereby notify Facebook that it may not use my photos or personal information, … blah blah blah.” In my earlier post, I argued that this reflects something like a healthy faith in the law as actually bilateral, rather than a unilateral tool of contractual oppression according to which the powerful can simply impose terms on one without having terms imposed back on them.

One of the questions I occasionally get on that post, and in similar discussions, is: “But don’t people access Facebook’s property?” Maybe we should be assimilating the interaction between users and Facebook not to some kind of consumer contract transaction but to a property owner imposing conditions on others’ use of that property.

I’m skeptical of this claim, and I want to say a few words about it. Intuitively, it seems like we might equally well want to say that Facebook enters onto my property (my computer, which Facebook is entering with its ads and such). Even talking about intellectual property, it seems like any claim that Facebook might have to impose conditions on my use of its computer code is matched by claims I might have to impose conditions on Facebook’s use of the text and images I supply it.

At a more fundamental and technical level, it seems implausible to say, given current technology, that “entering” an internet “site” or accessing the intellectual property delivered by others over the internet is analogous to entering land or copying a book, respectively. With current technology, here’s what happens, in slightly simplified form, when I access Facebook:

1. My computer sends some data to the computer at an IP address, via a domain name and a nameserver. That data goes in the form of a HTTP request.
2. The server (the computer owned by Facebook) located at that address is listening on a specific port — because it so happens that someone programmed it to be listening to that port.
3. When that computer hears a HTTP request, it executes some code — again, because someone programmed it to do so, by installing programs like Apache to handle HTTP requests.
4. That code generates some data which it then sends back to the IP address of the computer that sent it the original request, i.e. my computer.
5. Software in my computer, like a web browser, interprets the data the external computer sent. It displays some stuff to me, and possibly executes some other code, like client-side javascript. (The difference between “code” and “data” is a problem for me, but whev.)
6. This interaction repeats until one or the other party cuts it off, by either the server stopping listening to traffic from my IP address (which in practice rarely happens) or my computer stopping sending or receiving traffic from it.

All this stuff about “visiting” “sites?” That’s just a metaphor, that we use to wrap our fritzy little meatspace brains around this process. But it confuses us into thinking that we can assimilate our rules from physical sites to this other kind of interaction.

The kind of two-way exchange of information voluntarily given, albeit in an automated fashion, that actually happens on the web seems to me to bear little resemblance to the kind of entry on real (or intellectual) property that traditionally entitles a property owner to impose conditions.

Rather, it’s more like a conversation, i.e., pure speech. Imagine, for example, that instead of a computer network, Facebook was a guy (or a robot!) standing on a street corner holding up a sign that said “I’m an oracle: if you say abracadabra, I’ll tell you what your friends are doing.” So you walk up to the Facebook-Dude/Bot, and you say abracadabra, and the FB-D/B shows you a picture of your friends’ cats, and tells you about a Fox News story about President Obama being Muslim and not born in America and secretly behind 9/11 and gleefully carrying out abortions right in the Oval Office and coming to take your guns away, and tells you that another friend of yours, whom you’ve secretly lusted after for years, is In a Relationship, but that a totally different friend is broken up with his/her spouse, and by the way, would you like to buy these designer jeans?, and check out this funny Onion article!, and Elizabeth Warren Ran Into the CEOs of Goldman Sacs and Volkswagen in a Dark Alley With a Rusty Switchblade, and You’ll Never Believe What Happened Next!, and for some ungodly reason, doubtless pure addiction, you continue the conversation but at no point have you entered onto the FB-D/B’s property.

Now, to be sure, there might be a contractual thing going on in there. Maybe the FB-D/B’s sign said “say abracadabra and I’ll tell you about all your friends, but by saying abracadabra you also give me consent to take a picture of you, chop off your photographic head, put it on the body of a porn star, and send it to your grandparents.” And that’s fine, in contract law, we call that an offer. But that gets us right back to the original problem with the bilateral nature of the things that are rightfully called “contracts,” namely, that framing things in contract and speech rather than property terms holds out the sensible potential for this other thing called a “counteroffer” where you say “Actually, FB-D/B, how about this: I’ll say abracadabra, and by telling me about my friends, you agree that you won’t pornify me and send my picture to my grandparents.”**

And thus, again, the habit of posting Facebook disclaimer statuses is redeemed.

* postscript: I have one more thing to say about the status disclaimers. Suppose, as general wisdom holds, that they’re ineffective under current (unjust) contract law. Would we be wise to discourage them? Or would their prevalence possibly operate to convince courts, if not now, then in the future, that contract law ought to change to become more bilateral? After all, one of the core ideas of the common law is that it’s rooted in social custom, and that it reflects the preexisting expectations of ordinary people (see Hayek, Law, Legislation, and Liberty for more); evidence of a widespread belief on the behalf of ordinary people that they have the power to negotiate with corporations like Facebook over the contracts imposed on them seems like it could lead to long-term legal progress.

** “But what about the fact that Facebook isn’t listening to those counteroffers, that I can’t reasonably expect to be able to communicate them via status updates?” Well, yeah. But same right back at you: but what about the fact that Facebook can’t reasonably expect to be able to communicate its terms to you via obscure updates to terms of service?