Symposium: Legal Regulation of the Internet
M. Ethan Katsh [FNa1]
28 Conn. L. Rev. 953 (1996)
Copyright © 1996 by the Connecticut Law Review; M. Ethan Katsh
|Computers don't just do things for us, they do things to us, including our ways of thinking about ourselves and other people.|
|-Sherry Turkle [FN1]|
|[T]he technology is there for widely separated parties to meet in cyberspace, exchange and analyze complex information on preferences and needs, do deals, and execute binding settlements.|
|-Richard Shell [FN2]|
Cyberspace, according to computer scientist David Gelernter, should be viewed as a "mirror world," [FN3] a place where institutions of the world are represented in digital form and where we can interact with these digital representations as if we were in the physical space. As computer software and networks become more sophisticated and pervasive, Gelernter envisions the development of increasingly complex online communities and institutions, places containing "some huge institution's moving, true-to-life mirror image trapped inside a computer," [FN4] As a result, cyberspace, in the future, will be many spaces. In these spaces, we will engage and interact with each other, as well as with schools, banks, stores, and a wide variety of other kinds of institutions. As we do so, we will have significantly expanded opportunities for encountering a wide array of experiences, some of which have parallels in the physical world and some of which, due to diminishing constraints of time and distance, do not.
The vision of online worlds or of virtual reality is often associated with exotic equipment, such as headgear that allows one to feel like one is leaving physical space and entering a new space. [FN5] Such devices may, sometime in the future, become commonplace, but for increasing numbers of people cyberspace is already a place which they "visit" frequently for significant periods of time. Without the exotic headgear, but with machines that even a decade or two ago would have been considered science fiction-like, we recognize and connect with a place, populated with individuals and institutions, whose form and content results from enormously complex arrangements of ones and zeroes.
There is much to be learned from Gelernter's vision, which may be more understandable and more plausible today than it was when it was published in 1989. A more recent work, Sherry Turkle's Life on the Screen, [FN6] looks more at the present than the future and finds that we have moved from a world of calculation to a world of simulation, from an image of the computer as something that calculates and computes to an image of a machine that interacts with us continuously and helps us define our identities. Given the development and increasing familiarity of the Internet and the World Wide Web, the concept of online places where we can interact with others and model alternative futures, seems increasingly realistic. We do not have headgear that covers our eyes but we do, with increasing frequency, focus our eyes on the screen and gain meaning and significance from what appears there.
The concept of a "mirror world" or a "life on the screen" also provides a useful entry point and perspective for considering the issue of disputes that originate online. As will be explained below, new online or on-screen spaces in which to interact, meet, form relationships, express opinions, pay money, and engage in many other familiar and not so familiar activities, will leave an impression on both us and on the landscape of disputes. The mirror or screen world will contain and reflect many facets of the physical world, and will also contain and reflect much of the conflict of the physical world. It will be an environment that will confront us with a broad variety of disputing behaviors and attitudes, some of which are familiar from the physical world and some of which are not. In addition, it will lead to the development of online dispute resolution processes and institutions, thus mirroring much conflict resolving behavior of the physical world.
This article focusses on this emerging conflict environment. It raises some questions about the nature of conflict and conflict resolution online and suggests a few answers. A "mirror image," it is important to recall, is not the same as the original. It can be useful and educational but it may also be distorted and disorienting, and, inevitably, it reverses the direction in which images are facing. Thus, the online or mirror image of conflict and conflict resolution may appear familiar yet it may also require us to adjust our thinking, and acknowledge that perceptions and assumptions about conflict and modes of resolving conflict may require some reorientation. Practices and perspectives that are familiar and traditional in the physical world may need replacement, not in the sense that something new and different will necessarily take their place, but that various models will need to be reworked and repositioned.
This essay begins with an analysis of some elements of the
online environment that suggest the need for new online dispute
resolution institutions. The second section describes three
experiments in online dispute resolution that attempt to address
conflict resolution online. Part three focuses on one of the
three projects, the Online Ombuds Office, and considers several
challenges of the online environment to the design and operation
of the "office." Part four briefly describes the first
case handled by the office, one which illustrates both the
conflict-creating and the conflict-resolving nature of the online
environment. I conclude with a story that is intended to provide
a perspective on what it means to adapt familiar activities to a
I. CONFLICT IN A DIGITAL
Cyberspace provides us with a new marketplace of ideas and it also provides us with a new marketplace of conflict. One who participates online finds oneself in a highly active arena of exchanges and encounters, an environment that allows persons and groups to communicate, build relationships, and work together in novel ways. It is an environment where one's informational activities are not limited by many of the temporal or spatial constraints of the physical environment. This leads to an expansion of economic and creative interactions, a largely beneficial consequence of an electronic environment, and, inevitably, an expansion of disputes involving the acquisition, use, possession, processing and communication of information.
Anyone who communicates or participates in online activities has observed or experienced conflict. Participants in listservs or Usenet newsgroups, for example, have inevitably witnessed arguments, insults, challenges to integrity or intelligence, perhaps even claims of fraud, libel and rights being violated. As the World Wide Web has developed, disputes involving copyright, privacy, and a range of First Amendment concerns and values have arisen. Consider, for example, the following incidents:
i. In October, 1995, at Virginia Technical University, a public institution, a student posts a message at a World Wide Web site for gay men calling for gays to be castrated and to "die a slow death." The student is disciplined for violating a policy prohibiting "use [of] mail or messaging services to harass, intimidate or otherwise annoy another person." The Dean of Students states that the university's position is that "if you use our server, then you have some responsibilities because you associate the name of the institution with what you say." [FN7]
ii. In November, 1995, four Cornell University freshmen send friends an e- mail message containing "Seventy Five Reasons Why Women (Bitches) Should Not Have Freedom of Speech" [FN8] The list was highly offensive and in very poor taste. Some of the friends, however, forwarded it to others. Soon, the list was widely available on the Internet, leading to many cries for Cornell to severely punish the students, and to other cries for Cornell to respect the students' rights of free expression.
iii. On a listserv discussing the use of the World Wide Web at a university, a female graduate student comments on some technical issue. A faculty member responds as follows: "This is one of the dumbest 'responses' I've seen to anything about the Web .... Why don't you save your idiotic comments for the mirror at home?" The graduate student claims sexual harassment.
These, and almost all other disputes that have occurred online have been resolved informally. This is not surprising since it is also relatively rare for disputes in the physical world to end up in court. As Kolb and Silbey have pointed out:
[M]ost conflicts in organizations, as well as other settings such as families, communities, and informal groups, never get publicly expressed as disputes. When probed, people reveal all sorts of grievances, complaints, and differences that could be -- but rarely are -- voiced. Sometimes people fear retribution or loss of social acceptance, others avoid entrapment in complex processes; others believe that they lack sufficient resources to pursue their grievance; while yet others see complaining and confrontation as evidence of moral laxity or lack of independence .... [I]n a study of professional accounting firms, Morrill ... reports that 73% of conflict episodes among partners are never expressed directly. Avoidance and toleration are the modal forms of conflict management rather than confrontation and negotiation. [FN9]
When confrontations do take place, "people frequently resolve their disputes in cooperative fashion without paying attention to the laws that apply to those disputes." [FN10]
The last two years have seen the beginnings of cyberspace litigation. Whereas prior to 1994, the Internet and cyberspace were almost completely unknown to both Lexis and Westlaw, that is no longer the case. [FN11] During the past two years, disputes involving copyright, [FN12] obscenity, [FN13] libel, [FN14] and free expression [FN15] have resulted in judicial decisions.
The opinions in these cases have received considerable attention but they may be less significant as precedent and as determinants of future standards and practices than as a sign that disputes arising out of the Internet environment are increasing and have grown so numerous that a few of the disputes are not amenable to resolution using informal means. If, in any environment, the pattern of dispute resolution can be symbolized by a pyramid, in which the point at the top represents litigation and the base represents the least formal but most common, mode of dispute resolution, the cases that are now surfacing at the apex may signify considerable growth at the base.
The projects described below are less a response to Internet litigation or to specific cases than they are a response to heightened online activity and to changing use of the network. Cyberspace is in transition, both in terms of how populated it is and in what it is used for. As cyberspace becomes larger and different from what it has been, the question of how it deals with resulting problems and disputes, and with how it can employ the powerful communicative and information processing capabilities that are present on the network, will receive increasing attention.
More particularly, the need for more varied online options for
dealing with disputes is linked to two trends in the use of
cyberspace. The first involves the rapid increase in the number
of persons and institutions in cyberspace. The second concerns a
broadening of the kinds of activities and
interactions that are taking place in cyberspace.
A. Increase in the population of Cyberspace
Although the exact number of persons participating in online activities is unclear, there is no doubt that there has been an extraordinarily rapid and significant increase in the number of persons using the Internet. [FN16] The number of Internet hosts has been almost doubling every year since 1991. The rate of increase in domain names has been even greater, with a more than threefold increase between January, 1995 and January, 1996. Most of the recent increase involves use of the World Wide Web, both by seekers of information and publishers of information, but increases are also apparent in the use of e- mail, listservs and newsgroups. The Digital Corporation's Alta Vista service for locating information on the World Wide Web and in Usenet newsgroups is accessed five million times each day and indexes nearly 11 billion words found in over 21 million Web pages. The Cornell Law School Legal Information Institute server experiences approximately 75,000 "hits" a day.
The World Wide Web has provided broad support to publishing and information distribution activities. E-mail, listservs and Usenet newsgroups have provided some support to association activities and to transactional activities. All have combined to enable individuals to establish relationships with other individuals as well as with groups of people with whom they are unlikely to have interacted with before. [FN17] They permit information to cross many institutional, economic, political and social boundaries, thus encouraging us to think about our categories of associational behavior in new ways. Listservs and Usenet newsgroups, for example, are not only vehicles for distributing news, but can indeed be groups, in that participants feel a relationship with others, and norms, expectations and assumptions about behavior emerge that are consistent with group formation and operation.
Currently, the distinctions among e-mail, listservs,
newsgroups, and the Web, are breaking down as the Web becomes
able to support a wide range of activities,
including the establishment of relationships and associations and
much transactional behavior. There will, inevitably, be a slowing
in the growth rate of individuals joining the network as the
number of overall participants grows. Even when this occurs,
however, network usage should continue to increase at a high
rate. The reason for this is that the network becomes more
valuable as more persons and institutions participate in it and
as new software expands the range of activities that individuals
and groups can engage in. Cyberspace, even today, is not a small
place. Yet it is relatively small compared to what it will be in
five or ten years. It will grow larger in terms of the number of
people who have a presence in it yet measurement of persons with
accounts or the number of host computers may miss the most
significant change. What is growing, perhaps even faster than
population, are the kinds of activities that users can engage in.
The number of "mirror worlds" or spaces is growing
rapidly as the activities that used to take place in some
physical place increasingly occur online. As these activities
increase, and as the network becomes a place where increasing
numbers of relationships form, it also, inevitably, becomes a
place where a large number break down. Indeed, as the network
matures, there will be increases in both the number of
economically significant relationships established online as well
as the number that experience problems.
B. New places and activities in cyberspace
The level of conflict in cyberspace will continue to increase, not only because there are more people interacting in traditional ways, but because the kinds of interactions taking place in cyberspace are broadening and changing in character. In the past, cyberspace has largely been a place for publishing and exchanging information. To a lesser extent, relationships have formed and, in a fairly primitive way, individuals in different locations have been able to work with one another. It is not surprising, however, that the focus of legal attention has been oriented largely around the publication of content (First Amendment and obscenity), the distribution of content (harassment and libel), and the collection and processing of information (privacy and copyright).
One of the themes of both Mirror Worlds [FN18] and Life on the Screen [FN19] is that cyberspace should be looked at as a rich and varied environment, one that, indeed, can support many of the interactions and activities we engage in every day. Each of the authors of these works understands that bodies of information in digital form can grow not only into larger bodies of digital information, such as libraries, but that as they grow larger, and as they are unbundled and rebundled, [FN20] processed and reprocessed, new kinds of institutions will emerge. As cyberspace begins to support many specialized arenas of interactions and transactions, it becomes more than sets of documents and more than sets of tools for working with information. The combination of software operating upon data transforms the network into a place or places that are an alternative to or substitute for many different kinds of physical places, and into a culture with values, norms and expectations about acquiring, exchanging, using, and processing information.
What kinds of physical places can be displaced by the network? The range of such places is surprisingly broad. Such places are built through software, through lines of code that represent the informational components of a place or institution. If one uses the network only for e-mail, the network appears to be a place for interpersonal and group communication. If one's focus is on the World Wide Web, at least as it is used currently, the network appears to be a place that competes with print publishers. Networks mature, however, as new software is designed to take advantage of advancements in hardware. Thus, it is new software that brings us new ventures, new activities, and new opportunities to interact with others. [FN21] New software gives us new visions as well as support for new behaviors. With the right software, a network can create an online alternative to almost any place that does not involve or require a physical object or physical process. [FN22]
The clearest software worlds, and the easiest to understand, are those that recreate institutions and places that are almost exclusively informational in character, such as libraries or conference centers, or are largely informational, such as banks or shopping centers. [FN23] As the network grows, it will, to more and more people, be perceived as a place in addition to being used as a tool. It will be increasingly understandable as a place because the range of activities that will be supported online will continue to increase, and the physical places in which these activities have occurred in the past will be displaced and used less often. Online activities will not only be thought of in terms of particular activities, such as "online banking" or "online learning," but as a kind of place that supports many familiar activities. These online places will not be identical to the traditional physical place because much of the physical context will be lacking. Even so, however, we may begin to think of the network as being not only a means to make deposits, or send complaints about a purchase, but as the store, bank, corporate headquarters, or library.
The broadening of the kinds of "places" that exist in cyberspace is significant because context is important in both conflict generation and conflict resolution. As Leda Cooks has written, "[p]eople experience conflict culturally and relationally, as well as individually." [FN24] Currently, for example, First Amendment disputes are common in cyberspace because the context in which activity is occurring on the Internet often involves publishing and some link to public institutions. The Web, at present, is largely a publishing place, perhaps an advertising place. There are few disputes involving commerce and economic issues, however, because the network is not yet engaged in large scale commercial exchanges. As online contexts broaden, however, the number and range of online generated disputes will also broaden.
Context affects not only the kinds of disputes which are likely to surface but which persons become involved as parties to the conflict. First Amendment conflicts, for example, are not unusual in the academic environment. Student newspapers, unpopular visiting speakers, and critics of controversial faculty, often raise First Amendment concerns on campus. It may appear, therefore, that there is little difference between many online and non-online First Amendment disputes. In the online context, however, the "mirror world," tends to involve administrators and others who have little experience with such conflicts. Institutional officials, for example, who supervise access to the Internet or manage the machines that are linked to the Internet often become decision makers when such disputes arise. It is not surprising that in a highly distributed and decentralized technological environment, considerable power and decision making authority has become decentralized as well. Indeed, this may turn out to be a most desirable consequence of net-working technology. In terms of conflict, however, it is not likely to lead, in the short term, to a high level of expertise in analyzing and resolving disputes.
Context is also important in how we approach conflict resolution. Which of several dispute resolution techniques will be most appropriate for resolving some conflict may depend on the context in which the dispute takes place. What is the nature of the relationship between the parties, for example? Is there an expectation of a future relationship? Is there a need for public standard- setting or would a private resolution be desirable? Is the conflict occurring in a stable environment, in which standards set today may be useful tomorrow, or in a rapidly changing environment, where standard-setting may be less valuable?
One reason why creative and commercial activities are moving
to cyberspace is that constraints of the physical world are less
operative there. At an extreme, virtual worlds can be created
which we can all enter and participate in no matter where we are
or, even, who we are. [FN25] The further we move away from the
familiar context of the physical world, however, the more we are
challenged to come to terms with novel contexts, [FN26] where
interactions multiply, where boundaries between behavior and
speech seem illusory, [FN27] and where challenges to those
attempting to resolve conflict by relying on seemingly analogous
contexts in the physical world may find considerable challenges.
II. CONFLICT RESOLUTION
Relatively little attention has been given to the conflict generating context of the Internet. Even less attention has been focussed on the conflict resolving potential of the Internet. [FN28] Alternative dispute resolution, to a considerable extent, employs communication to lessen tensions and reach agreements. Thus, while the network serves as a place where informational activities heighten the likelihood of conflict, the network also presents opportunities for designing online places that can be employed to reduce and resolve conflict. Arbitration, for example, is largely a process in which information is obtained and evaluated and online tools should provide opportunities for online arbitration. Similarly, mediation is a process in which how communication is structured between the parties, and between the parties and the mediator, is often the basis for agreements reached by the parties. [FN29]
During the Spring of 1996, three pilot projects were started
that were aimed at developing workable online dispute resolution
A. The Virtual Magistrate Project
The Virtual Magistrate is an online arbitration project primarily oriented around disputes that confront system operators ("sysops"). [FN30] Cyberspace reduces costs associated with the distribution of information, thus encouraging growth in information distribution activities. Sysops are owners or managers of systems on which these information distribution activities take place. Large corporations such as America Online or Compuserve are sysops, as are smaller Internet service providers and bulletin board operators. Such enterprises provide the accounts, software, and other means that allow one to engage in publishing and other communicative activities. However, while the sysop provides the means for publishing to occur, it may or may not have any control over or involvement in the activity.
The most common type of problem that the Virtual Magistrate expects to deal with is the posting of messages and files that may place the sysop in some jeopardy. As described by David Post, one of the founders of the Virtual Magistrate project, the standard dispute is one in which:
One party - whom I will call Complainant - asserts that a second party ("Actor") has posted a message or a file on a system under the control of another party ("Sysop") containing "wrongful content" of some kind, e.g., material that infringes Complainant's copyright or trademark rights, misappropriates trade secrets belonging to Complainant, is defamatory or fraudulent or inappropriate (obscene, lewd, or otherwise violative of system rules), and demands that the offending posting be removed from the system under Sysop's control. [FN31]
The value of the Virtual Magistrate is linked to the speed with which it offers to resolve disputes and the expertise of the magistrates. The Net is not simply a new channel of communication but it is a channel that changes the assumptions users have about both time and space, duration and distance. It is appropriate for online dispute resolution processes to be concerned with response times since "[t]he Net is a real time activity. Messages, files and postings become available worldwide at the touch of a key. Responses to problems must reflect the speed at which the Net operates. Remedies that take months or years to develop will not offer viable solutions." [FN32]
Determining the optimum response time will be a challenge,
since some exchanges of messages with parties will be necessary.
It had originally been anticipated that decisions could be made
within forty-eight hours. The current goal is seventy-two hours.
The Internet certainly supports rapid communication but sometimes
there is a value to a lengthened time frame and some
experimentation regarding this will be necessary.
B. The University of Maryland Online Mediation Project
This project, designed by Richard Granat, is different from the two other projects in that it is not oriented around disputes arising out of online activities. The focus of this project is on family law disputes and disputes related to health care. These are areas in which there are existing clinical activities at the University of Maryland Law School. As a result, the project is concerned with bringing new methods and sets of tools to bear on disputes that are currently being handled in a traditional manner. [FN33]
When this project formally begins in the Fall of 1996, it
promises to have a wider array of tools available for mediators
than the other projects. Like the other projects, there will be
some use of non-network modes of communication when appropriate
opportunities for doing so arise. Even in such situations,
however, there is recognition by the project founders that the
network options provide not only new tools for exchanging
information but should yield new perspectives on analyzing the
dispute and monitoring performance after settlement is reached.
C. The University of Massachusetts Online Ombuds Office
The Online Ombuds Office [FN34] is an attempt to bring the resources of an ombuds office to disputes arising out of online activities. Ombudspersons are independent officials who receive complaints, conduct investigations, and make recommendations. The ombudsperson role is a varied one but includes "responsive listening," providing and receiving information, reframing issues and developing options, making referrals, and assisting persons to help themselves. [FN35] The ombudsperson is not an authoritative or final decision maker but is "a confidential and informal information resource, communications channel, complaint-handler and dispute-resolver." [FN36] The ombuds role was originally intended to be an antidote to abuses of governmental and bureaucratic authority and administration, and ombudspersons continue to be effective intervenors in cases of arbitrary decision making.
The Ombuds concept originated in Sweden in the early nineteenth century. [FN37] In recent decades, a large number of institutions in this country have established ombuds offices. The Online Ombuds Office is an attempt to allow the Ombuds model to migrate one more time, from the educational, commercial, and governmental institutions in which it is now embodied, to cyberspace.
The Online Ombuds Office, like a non-online ombuds office, indeed like any office, exists as a place where one can obtain information and consult a person with expertise. The place is not a physical site but a site on the World Wide Web where one can access information or receive assistance from one of the Online Ombudspersons. The Online Ombudspersons are experienced ombudspersons whose physical location may be anywhere.
The Online Ombuds Office project, as originally conceived,
would have allowed a group of ombudspersons, possessing both
expertise and experience, to be called upon by persons involved
in online disputes. We have since broadened the scope of the
project, largely because of three decisions, each of which
touches on the issue of what it means to move a process that is
based in a physical context, into the digital environment.
1. Decision 1: The Office Component
Our first decision was to conceive of the project as the setting up of an office rather than as the application of skills possessed by a person. The primary reason for this is that the application and use of skill online is continuously filtered and shaped by that environment. Indeed, the online environment cannot really be separated from the person using it. By employing the office metaphor (although it may not always be a metaphor), we recognized that we needed to make an effort to adapt the online environment to the needs of the ombudsperson, and not simply accept those tools, such as e-mail, that are commonly available.
The office concept was important to us because the Web site, which is not only where the office is located but actually is the office, is likely to be the access point to the ombudspersons. Persons wishing to obtain the services of the ombudsperson will, in general, experience the Web site first. It seemed desirable to us, therefore, to employ the Web site to inform the user and to provide the user with some tools for self-help.
A physical office contains people, to whom questions may be addressed, as well as artifacts and publications that may catch one's attention. The online office may not appear to have as many objects of potential interest. Yet, this may be deceiving since the online office can lead one, almost seemlessly, to resources that are on machines across the globe and to people who are across the globe. The online office is, although it may not be apparent, shared space, since it is not located or isolated in a particular institution but can be accessed by all those with an appropriate communications link.
One advantage of an online office is the opportunity to enter it anonymously, if one wishes to do so. Although much networking software is designed to intrude on privacy, privacy and anonymity can also be guaranteed through software. From the user's perspective, one entering a well designed online office should feel free to explore all the routes to information that are provided. In this sense, the online office is one in which, at least over time, user needs can be anticipated and in which the user can peruse and copy anything and everything that is on display without needing to overcome feelings of shyness or timidity.
The World Wide Web provides opportunities to meet a variety of needs of persons engaged in some conflict. Ombudspersons not only intervene in cases but help users understand their disputes, link the dispute to existing institutional policies, and guide users in seeing what options and choices may be available to them. The Web site will perform some of the same functions for consumers and disputants as an office would, welcoming them, providing them with information about the service, and enabling them to begin the process by filling out appropriate forms.
Unlike a traditional office, the online office offers several
opportunities not present in a physical setting. The
"OOO" (Online Ombuds Office) web site, for example, has
significant educational potential and, possibly, a
dispute-prevention function. The web site will contain a data
base of online disputes and cases and materials that might, in
some cases, promote resolution of the dispute without formal
intervention. Indeed, in the same way that many individuals enter
a dispute resolution center, find some materials that provide a
perspective about their problem and assist them in resolving
their problem by themselves, the OOO can satisfied the needs of
disputants by outlining options, suggesting possibilities, and
2. Decision 2: The Ombuds Component
A second decision we made was to pair each ombudsperson with someone who had some technical expertise and considerable familiarity with the Internet. There were two main reasons for this. First, as noted earlier, context is always a factor in a dispute. [FN38] In cyberspace, however, where environments are created by software, our sense was that some ombudspersons might lack a sense of context and a sensitivity to the environment out of which the dispute emerged. In the physical world, ombudspersons are often part of the institution out of which the dispute arose. In the early phases of this project, however, it is possible that each dispute will be novel and discussions with technical advisors may assist the ombudsperson in understanding various assumptions and expectations of the disputants.
Our second reason for employing a technical advisor is that
technical knowledge may affect the ultimate resolution of the
dispute. There may be elements of the online environment that can
be employed to obtain data about the parties to the dispute or
that would be useful to employ in order to monitor a settlement.
When solutions and approaches are information-based, the level of
creative problem solving may increase if there is easily
available technical expertise.
3. Decision 3: The Online Component
A third decision we made was to try to provide as rich a set of communications tools as possible for the ombudsperson. In a physical office, meetings can occur face to face, with the parties privately or as a group, the telephone may be used, and handwritten notes may be sent. E-mail alone cannot be as useful as the set of tools that we have at our fingertips in the physical environment. The Web site, therefore, needs to be a resource for the online ombudsperson just as it is a resource for the disputant. For the ombudsperson whose assistance is sought, there needs to be options for individual and group communication, and choices that can be made in order to regulate the flow of information and the pattern of communication. [FN39]
Ombudspersons are sensitive not only to what information is communicated to a disputant but to how information moves to and among disputants. The ombudsperson needs to have some control over the flow of information, since the communications pattern can affect who is interacting with whom and under what conditions. [FN40] The web site will be an evolving resource. As the site becomes more sophisticated, more resources will become available for both the disputants and the online ombudspersons. As the site develops, for example, decision trees and other decision analysis tools may become available, [FN41] as well as tools for simulating and modeling alternatives.
Our assumption has been that access to any tools we make available should be easy to use by disputants. Thus, while software such as CUSeeMe can make video conferencing possible and affordable, it is not likely that we shall avail ourselves of this at the beginning. We have, courtesy of Washburn Law School, access to a specially designed Web-based chat room that allows for real time communication among participants. This is listed on our Web site as the Online Ombuds Conference Room. Similarly, Villanova Law School has made available their "conference" center with threaded communications, should that form of communication be desired.
The challenge in cyberspace is only partly to provide the
third party neutral with an array of communications capabilities
for communicating and working with information in as easy a
manner as one can work with information while sitting face to
face with someone with a problem. It is, in addition, necessary
to understand the nature of ADR processes so that what may not be
possible to duplicate in cyberspace can be
redesigned, hopefully in a manner that furthers the goals or fair
and equitable dispute settlement. The following suggests two
examples of the kind of challenge that may surface as processes
are moved from one environment to another. The first involves
confidentiality, a basic concern of ADR. The second concerns the
pressure that the new medium places on the way in which we
conceive of the third party's role and performance.
An assurance of confidentiality is generally a feature of alternative dispute resolution. The purpose of holding sessions in private and of guaranteeing confidentiality is to encourage openness and frankness in discussions with the third party neutral. In the process of meeting with each party separately, neutrals learn a great deal from them. Whatever ADR process is employed can be expected to work more effectively when each party is assured that what they reveal will not be shared with other parties, unless permission is given to do so. This guaranty is often not a legally binding guaranty that is supported by a case or statute. More commonly, it requires some trust in the word of the neutral that intrusions into the process will be resisted.
When ADR takes place in physical spaces, the context alone provides some support to maintaining confidentiality. In some ADR programs, for example, case files are not preserved and, for face to face conversations or those occurring via the telephone, there is no physical record that can be obtained later and be used as documented proof. Similarly, any papers or notes kept by the neutral can be disposed of after the dispute is resolved. The problem in online communications is that communication over a network inevitably involves copying or allows for the copying of data multiple times. In the physical setting, one might take steps to assure that there is only one copy of something or that all existing copies of something are retrieved. In the online environment, one can request that copies be destroyed but the process of communication is such that it is sometimes difficult to even know when or how many copies are made. The simplest e-mail message may or may not involve a copy being saved on the sender's hard drive, on some service provider's backup system, on some temporary storage file, as well as on the recipient's hard drive.
It is important to remember that cyberspace is an environment in which communication occurs through copying. When messages are "sent" to someone, it is actually a copy that is sent. When someone looks at an e-mail message or some other information on screen, there may be copies sitting on some server, on some other machines that are part of the network, on one's hard disk, as well as on screen. As David Post has written, "file copying is not merely inexpensive in cyberspace, it is ubiquitous. And it is not merely ubiquitous, it is indispensable, a necessary precondition to the existence of the medium, because all basic computer functions, and therefore all computer- mediated communication, rely on reproducing information in some manner or another." [FN42]
In such an environment, how should the issue of confidentiality be treated? There are some steps that one might take as a regular part of one's practice, such as deleting copies that are made automatically, keeping backups of files for only a limited period of time, and checking local drives often for copies. An online mediator or online ombudsperson needs to be highly sensitive to the confidentiality problem and to understand how copying is inherent in all electronic communications. Yet, even the precautions just mentioned will probably not provide sufficient assurance in cases in which confidentiality is highly desired by the parties. Using the most common means of networked communication involves too much inherent copying to allay the fears of anyone who understands how information flows over a network.
In a digital world, where copying and communication are intertwined and where anything that appears on screen can be copied and preserved by one party, it may be that it is the concerns and interests served by confidentiality that need to be addressed, and not simply to try to make sure that information is controlled as tightly as it might be in the physical world. In other words, new approaches or perspectives are needed that accept the nature of the electronic environment but that also try to exploit novel tools and practices that are possible in it.
Looked at from this point of view, the question becomes not how to prevent the copying of information or how to enforce guidelines concerning copying, but whether there exists some means to encourage parties in the electronic environment to reveal information about themselves in a way that will not, at some later date, place them at some disadvantage. The design of an effective dispute resolution space requires such an attitude, and the working together of dispute resolution professionals and software designers because, as noted earlier, the solutions are largely software solutions.
It is hard to know exactly where such collaboration might lead
but two options that exist today are the
As noted above, ordinary e-mail is a poor choice for
communicating information that one wishes to be seen by one and
only one person. Encryption, however, can guaranty such a result.
Encryption encodes a message so that no one can decode it without
the appropriate "key." The key is separately
communicated to the recipient. If the message is somehow
intercepted before reaching the recipient, the message will be
Unlike an encrypted message, a message sent anonymously can be read by anyone who obtains it. What is different is that the reader will not be able to trace it back to the sender. Even when it seems clear, from other means, who the sender is, there will be no formal way to attribute the message to the sender.
Using anonymous remailers that allow communication but hide information about the sender, allows content to be transmitted but places some doubt about the value and authenticity of the message. In another context, the ombudsperson using the Online Ombuds Conference Room can require the use of a pseudonym by anyone who enters the room. Conversations are held by persons who think they know who the other participant is but who cannot really be sure. One could, for example, have a representative using the pseudonym rather than the actual disputant. Such an arrangement does not guaranty confidentiality, but it does make attribution difficult. As a result, it may encourage open communication since there is less potential damage that can occur to the disputant from what he/she is represented as saying.
Cyberspace is an environment in which copying is easier but guaranteeing the authenticity of messages is harder. In cyberspace, it is possible for one to assume many identities (pseudonyms) and to change one's identity by pressing a few keys, [FN44] or to have no identity (anonymity). Thus, while it is ordinarily possible to copy any message that one sees on the screen, one also tends to be wary of attributing the message to the person who appears to be the sender.
Just as software, in the form of encryption, can guarantee
that only one person is able to read a message,
there are software solutions to the authenticity problem. Digital
signatures, for example, are codes that are embedded in a message
that can be employed to verify that a message was sent by
someone. What this suggests is that third parties who work online
will need to be sensitive to the varying levels of message
authentication that are available online and to select the level
that is appropriate to the problem and to the parties.
5. The role of the neutral
As noted earlier, context can influence the approach of the neutral, the choice of process, and the behavior and attitudes of disputants. In any environment, context can affect the kinds of disputes that are likely to arise and also affect who the parties are who are likely to be involved in the dispute. Context implicitly feeds us information about the extent or nature of the injury as well as how the injury or dispute is perceived by those involved. Context situates a dispute in a particular time and place, and we react and adjust accordingly as the parameters of the environment become clear to us. When the environment is unclear, as cyberspace often is, and when physical artifacts that serve as symbols of a particular kind of activity are missing, it becomes difficult to categorize and to find the boundary lines between categories.
What is noteworthy about context in cyberspace, particularly in the current early phase of cyberspace, is its fluidity and ambiguity. As noted earlier, there may be uncertainty about whether people are who they say they are. [FN45] In addition, ambiguity results because familiar physical elements of context are missing. Physical cues, such as "body language" and tone of voice, may be missing, and race and gender may be absent as well. More generally, we are challenged with uncertainty because cyberspace does not provide us with familiar or fixed boundaries and limits. In most disputes, the value of contextual information derives from knowing where a dispute occurred, when it occurred, and who is involved. Yet, in cyberspace, where context can be redesigned simply by rewriting the code that determines what appears on the screen, questions of where and when may not be implicitly and immediately clear to a third party.
The malleability of many online environments is something that neutrals must be aware of and confront since these conditions affect the informational value of context. [FN46] Computers, as Michael Wheeler has observed, "can profoundly transform the negotiation process, often without the participants realizing it." [FN47] The computer screen can be designed to have a "look and feel" that makes us think that the context is the same as that which exists in physical spaces. In some instances, the online environment may even be designed to take on qualities of most physical places and institutions. More commonly, however, it needs to be remembered that virtual worlds are places where Newtonian laws of time and space can be overcome. Thus, the neutral who attempts to intervene in disputes in cyberspace must understand that one cannot assume that actions and disputes in cyberspace will be shaped by the same forces and expectations that operate in the physical world.
In the physical world, particularly when the third party, such as an institutional ombudsperson, belongs to the same institution or culture as the disputants, neutrals and disputants may come to the ADR process with many common understandings of context. For example, the need for privacy and the potentially embarrassing consequences of some disclosure may be implicitly understood when there is a dispute between two employees. There is a background to the dispute that does not have to be articulated by either the disputants or the third party neutral since it is grounded in shared assumptions and perceptions.
Cyberspace offers dispute resolvers a variety of impressive
informational tools and opportunities to communicate and work
with information. In situations where the context is familiar,
such as when a neutral is merely using online tools in a dispute
that arose locally, the neutral will probably also feel quite
familiar and assume a role that largely parallels the role of a
traditional dispute resolver. Consider, however, a dispute that
originates in cyberspace, that involves a relationship or issue
that could only exist in cyberspace, and that involves people who
are located at a considerable distance from each other. In such
instances, the neutral needs to understand and be sensitive to
norms and expectations for which the neutral may have little
III. FIRST LESSONS
Among the general goals of the pilot Ombuds Office project are learning about the context of cyberspatial disputes, about the expectations of disputants, about constraints and opportunities when one intervenes at a distance, and about the role and function of the World Wide Web site. The first dispute brought to our attention did not result in an online mediation but it did deepen our understanding of these issues.
The dispute began as an argument in a Usenet newsgroup. It escalated a bit when the complainant made a telephone call to the respondent (who had included his phone number on a posting to the newsgroup). The dispute escalated even further when the respondent called the complainant's employer and asked that the complainant be disciplined for making Usenet posts on company time. When the complainant sent a message to the respondent complaining about this, asking him to avoid further contact and not to forward the message to anyone, the responded did just what he was asked not to do and posted the message to numerous newsgroups.
We had several exchanges of messages with the complainant. We asked for a more complete statement of what occurred and some clarification of what the complainant wanted. One difference in a dispute of this kind from a dispute in the real world that became quickly apparent is that there may be a record of much of the dispute and that it can be obtained, if one wishes to do so, independently of the parties. The Alta Vista [FN48] and Dejanews [FN49] search engines can be employed to discover a great deal of information about who the parties are.
We did not attempt to contact the respondent in this case because we learned that anyone who sends him e-mail receives a message back saying that his server is no longer receiving messages and that the intended recipient cannot be contacted. In reality, messages do reach the intended recipient, who takes the message, finds the sender's employer, and does what occurred in this case. This behavior earned the respondent a victory in the Usenet Kook of the Month contest for January, 1996, a Web site [FN50] that recognizes generally obnoxious, destructive or very strange online behavior. Indeed, the responded received more votes than any previous Kook of the Month.
I am not sure that we would have chosen to begin online
intervention with a dispute involving such an individual but the
pilot project will, we believe, involve many cases that will have
a fairly novel context. The Usenet environment, where
"flaming" and extreme language are not uncommon, may
generate a fair number of cases. As a result of our experience in
this dispute, we modified the Online Ombuds Office Web site to
include links to some Web pages that identify persons who have
frequently been involved in online disputes. We would hope that
an understanding of who one is involved with and the fact that
they are widely known for their actions, may bring some
satisfaction to those who experience contact with them, or lead
them to avoid further contact.
I have, in a recent book, [FN51] employed the following story about the anthropologist Edward Hall to suggest that our migration from physical space to cyberspace touches us on several different levels. Several decades ago, while doing research in Japan, Hall returned to his hotel one day, went up to his room, opened the door, and found that while it was the room he had been living in, someone else's belongings were there. Hall took this in for a few moments, all the time feeling uncomfortable, indeed feeling that somehow he must be in the wrong place, and that he would be found and accused of being in someone else's room. He then went down to the desk where he was told that his room and his belongings had been moved. He was given a new key, went up to his new room, and found that all of his possessions had been laid out for him in just about the same way he had left them in the first room. There was a marked resemblance to the room and the arrangement and yet, he could feel, much was different as well. [FN52]
Professor Hall, as an anthropologist, understood that what was important about his experience went beyond the nature of the artifacts in his new space. He realized that he was not only in an unfamiliar physical place but that he was in a culture and environment that he did not understand completely. He was no longer confident in what he could expect to occur in this space. Whose space was this, for example, and might he be moved again? Hall realized that the new environment had physical resemblances to what was familiar to him but he also recognized that, due to strong environmental or cultural forces, his role as tourist/guest/renter had changed. Long held assumptions about hotels no longer seemed to be valid and he became aware that his relationship with the hotel was different from what he had assumed it to be. What was his, what was shared, and what belonged to others were no longer as clear as they had been.
Professor Hall, as he adapted to his new space, continued to wonder about what his new surroundings signified. He eventually left Tokyo, where the first hotel had been located, and moved to Kyoto. He writes:
There we were fortunate enough to stay in a wonderful little country inn on the side of a hill overlooking the town. Kyoto is much more traditional and less industrialized than Tokyo. After we had been there about a week and had thoroughly settled into our new Japanese surroundings, we returned one night to be met at the door by an apologetic manager who was stammering something. I knew immediately that we had been moved, so I said, "You had to move us. Please don't let this bother you, because we understand. Just show us to our new rooms and it will be all right." Our interpreter explained as we started to go through the door that we weren't in that hotel any longer but had been moved to another hotel. What a blow! Again, without warning. We wondered what the new hotel would be like, and with our descent into the town our hearts sank further. Finally, when we could descend no more, the taxi took off into a part of the city we hadn't seen before. No Europeans here. The streets got narrower and narrower until we turned into a side street that could barely accommodate the tiny Japanese taxi into which we were squeezed. Clearly this was a hotel of another class. I found that, by then, I was getting a little paranoid, which is easy enough to do in a foreign land, and said to myself, "They must think we are very low-status people indeed to treat us this way."
As it turned out, the neighborhood, in fact the whole district, showed us an entirely different side of life from what we had seen before, much more interesting and authentic. True, we did have some communication problems, because no one was used to dealing with foreigners, but few of them were serious. [FN53]
Hall again understood that what was causing him difficulty was not only the physical inconvenience of being moved but his concern over what it meant that he had been moved. Any space, he realized, was not simply a physical location but a cultural environment with embedded norms and values. Ultimately, he learned that being moved did not have the same significance as being moved might have in the United States. Hotel space looked the same but it was being governed by some different conventions and values. Indeed, far from according him a low status, he learned that the hotel managers who moved him were treating him quite respectfully. He writes that "the fact that I was moved was tangible evidence that I was being treated as a family member - a relationship in which one can afford to be relaxed and informal and not stand on ceremony." [FN54]
Hall's story is meaningful because cyberspace has many qualities of a culture. It affects not only what we are able to do, but how we do things and how we think about what it is we are doing. One needs to be very cautious, therefore, about assuming that what is imported to cyberspace will have the same meaning and value as it has in physical space. There are, for example, several projects around the country that have produced courtrooms of the future. [FN55] These projects emphasize the use of technology in trials by placing powerful technology in a familiar physical place. Yet, the most imaginative courtroom of the future may not be in any of these physical courtrooms but in cyberspace. Its functions may be similar to that of a courtroom but it may also differ in a variety of ways from the familiar physical courtroom. It will be separated not only by dimensions of time and space but by a set of expectations, assumptions, and goals that we will have to come to terms with.
There appears to be a growing need for dispute resolution in cyberspace. As they begin to resolve disputes, the Virtual Magistrate Project, the Maryland Mediation Project, and the Online Ombuds Office, should indicate how the network can be a resource for confronting online problems. They may also be laboratories of ideas and practices for working toward the resolution of non- cyberspatial disputes, since whatever is learned will have applicability for these disputes as well. In this sense, these online spaces may even turn out to be prototypes of the courtrooms of the future.