New World War

Cancelbunny and Lazarus battle it out on the fontier of cyberspace--and suggest the limits of social contracts.

"Hereby it is manifest, that during the time men live without a common Power to keep them all in awe, they are in that condition which is called Warre; and such a warre, as is of every man, against every man....It may peradventure be thought there was never such a time nor condition of warre as this; and I believe it was never generally so, over all the world; but there are many places where they live so now. For the savage people in many places of America...have no government at all, and live at this day in the brutish manner, as I said before. Howsoever, it may be perceived what manner of life there would be, where there were no common Power to feare...."

Thomas Hobbes, Leviathan, chapter 13 (1651)

It all sounds like the plot of a (mediocre) science fiction novel: strange beings with names like the Cancelbunny, an144108, XS4ALL, and Scamizdat, fighting on a battleground with no fixed location anywhere on earth, using strings of binary digits as their weapons. But science fiction it is not; it is the ongoing battle in cyberspace between the Church of Scientology (CoS) and its critics, the first War--or Warre--in the Age of the Internet. If you want evidence that the Internet may indeed be a place like no other, please read on. And even if you have no interest in anything having to do with "cyberspace," you might wish to hear more of these bizarre doings if you care about the way that politics and law shape (or fail to shape) the way we live. For just as contact with radical new forms of civil society--places with "no government at all"--focused the minds of Hobbes and the other Enlightenment philosophers on the nature of government and political power, so too may contact with this curious new electronic world and its odd new rules of conduct lead us to think anew about what life "without a common Power to keep us in awe" might be like.

Depending on whom you ask, Scientology is either a legitimate religion offering followers a route to spiritual enlightenment and salvation, or a fraudulent scam--and, let me say at the outset, I have no opinion as to which characterization is the correct one. What is clear, however, is that relations between adherents and critics have never been pleasant; passions run feverishly high on both sides, and the Scientologists have often been accused of dealing, shall we say, rather harshly with their critics.

But at least until July 17, 1991, there was no truly organized opposition to the Scientologists' teachings and tactics, no true community of the disaffected. How could there be? Building an anti-church, after all, takes just about as much administrative and operational savvy, not to mention money, as building a church. But that feature of the landscape changed dramatically on the date mentioned, when a Scientology critic, Scott Goehring, formed a discussion group--alt.religion.scientology--on what is called the Usenet network portion of the Internet. (As a harbinger of complications to come, Goehring forged the return address of the message used to create alt.religion.scientology, using the address "miscaviage@flag.sea.org" in an apparent reference to Scientology head David Miscavige.) Suddenly, in the 30 seconds or so that it took Goehring to type out his request, and the $0.05 or so it cost him to transmit that message to the computers responsible for Usenet network configuration, there was a place where the disgruntled can meet to exchange ideas and information--a new community, one of the literally hundreds of thousands of such communities that have sprung into being on the Internet over the past few years.

Alt.religion.scientology indeed became a hotbed of critical commentary on Scientology's teachings and tactics (as well as one of the Internet's most actively used discussion forums, with more than 2,700 postings per week). But things began to get really interesting when some participants in the discussions began appending to their messages long excerpts from--and, on occasion, the full text of--some of Scientology's secret scriptures, known as "the Advanced Technology." CoS followers hold fiercely to the notion that their revered, secret texts must never be disseminated except to the rigorously initiated--that it is, in fact, dangerous to allow people who have not reached a certain stage in their training to view these materials. CoS critics, on the other hand, claim that these documents are a critical part of the public debate about Scientology, and that exposing these documents to public view, with their seemingly bizarre descriptions of alien beings and prehistoric thermonuclear war, will help keep potential adherents out of the Scientologists' clutches.

Upon discovering that the Advanced Technology was being freely disseminated across the globe, the CoS's legal staff sprang into action. These texts, they asserted, contain copyrighted materials as well as "trade secrets." Distribution--electronic or otherwise--thus constitutes bald-faced copyright infringement and unlawful misappropriation of confidential information. A number of lawsuits were filed--in Alexandria, Virginia, San Jose, Denver, and Amsterdam--against the individuals allegedly responsible for these postings, against the entities that provide those individuals with connections to the Internet, and even, in one case, against a newspaper (The Washington Post) that published excerpts from one of the sacred texts in its story about the cases. These cases are still pending, likely to drag on toward ultimate resolution for years.

These cases, to be sure, raise some difficult and important legal issues. For example, trade secrets are generally defined under U.S. law as any information that gives one a commercial advantage over competitors and as to which reasonable precautions against disclosure have been taken--customer lists, industrial processes, and the like. Can a church even hold trade secrets? Are we prepared to recognize a religion market in which competitors are battling for commercial advantage?

Or, to take another example, assume that the CoS holds the copyright to these texts. U.S. copyright law allows the "fair use" of a copyrighted work, including copying and distribution "for purposes such as criticism, comment, news reporting, [and] teaching." You may, for example, quote portions of a book in a review without fearing a copyright infringement lawsuit. Can posting these texts to the Internet, in the context of an attempt to generate greater public discussion and awareness of the Scientologists' teachings, be excused on these grounds? The fair use inquiry is a notoriously slippery one, decided by courts on the basis of an ad hoc balancing of various factors, including whether or not the work is being distributed for commercial gain (a factor favoring the Net distributors, who are making copies available at no charge) as well as "the amount and substantiality of the portion used in relation to the copyrighted work as a whole" (a factor strongly favoring the Scientologists).

And finally, should the Internet service providers, who function as the "pipeline" connecting the individual posters to the Internet, be liable for any harm caused by these distributions? On the one hand, they can hardly be asked to monitor all of the thousands or hundreds of thousands of messages that flow through their systems each day to determine whether there is copyright infringement going on in any of them. On the other hand, liability under U.S. copyright law has in the past been broadly applied to intermediaries--bookstores, for example, are liable for infringing material contained in the books they sell, nightclub owners for infringing performances by musicians they have hired, etc.--on the ground that those who profit, however indirectly, from the infringing activities of others should be made to compensate the injured copyright holder. Why should those well-established principles not be applied here?

These are questions that courts are likely to be struggling with for some time. The CoS has been largely successful in obtaining favorable preliminary rulings--that the documents do contain trade secrets, that fair use does not permit their posting to the Net, and that the service providers may indeed be liable for these postings--that strike many observers (including this one) as attempts to unthinkingly jam the square peg of existing law into the round hole of the Internet. But this entire episode has significance far beyond the boundaries of these important legal questions. In many ways it is a primer on the way that disputes will be handled in a networked world, on the nature of the anarchy that, in the eyes of many, rules (and may continue to rule) on the Internet, and on just how difficult it will be to exercise any degree of control over this environment using traditional legal tools. Whatever a "law of the Internet" ultimately looks like, it will somehow have to incorporate (at least) four principles that emerge from these battles.

1. There's no there there. Assume that all of the Scientologists' claims are true, that these documents real-ly are protected under copyright and trade secret law and have been unlawfully posted to alt.religion.scientology. Assume further that some court, in this country or elsewhere, was persuaded that alt.religion.scientology is nothing more than a haven for unlawful activity and that it should be closed down. What then?

Alt.religion.scientology is not like, say, a bookstore or some similar physical "place" that can be located, boarded up, and its operators hauled into court; like the Internet itself, it has no owner, no operator, no central computer on which it "lives." Usenet groups like alt.religion.scientology come into existence when someone (like Scott Goehring) sends a proposal to establish the group to the specific newsgroup (named "alt.config") set up for receiving such proposals. The operators of each of the thousands of computer networks hooked up to the Internet are then free to carry, or to ignore, the proposed group. If a network chooses to carry the newsgroup, its computers will be instructed to make the alt.religion.scientology "feed," i.e., the stream of messages posted to alt.religion.scientology arriving from other participating networks, accessible to its users, who can read--and, if they wish, add to--this stream before it is passed along to the next network in the worldwide chain. It's a completely decentralized organism--in technical terms, a "distributed database"--whose content is constantly changing as it moves silently around the globe from network to network and machine to machine, never settling down in any one legal jurisdiction, or on any one computer.

Not only is alt.religion.scientology immune from being boarded up, but what the technology giveth, sometimes not even the technology can taketh away. The Scientologists learned this early on, when Helena Kobrin, an attorney for the CoS, issued a "Remove Group" message to alt.config, asserting that alt.religion.scientology should be deleted from the network because a) it had been started by a forged message, b) it misleadingly used the trademarked name "Scientology" in its title, thus implying some official connection to the CoS, and c) it "has been and continues to be heavily abused with copyright and trade secret violations and serves no purpose other than condoning these illegal practices."

But trying to stop a Usenet group this way is punching a paper bag; there's no forum in which to make these arguments other than Usenet itself, no central decision maker that can evaluate the validity of those claims and decide whether or not alt.religion.scientology should survive. That decision is entirely in the hands of the owners of each of those thousands of computers, most of whom, in this case, simply chose to ignore the request to delete the alt.religion.scientology group.

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