1997 Henry H. Perritt, Jr.

This article is the first of a trilogy of articles considering the relationship between the Internet and regulation. This article considers self-regulation. A second article will consider regulation of the Internet through traditional legal institutions. The third will consider use of the Internet to facilitate governance through traditional legal institutions and new international institutions following traditional institutional models.

Dean and Professor of Law, Chicago-Kent College of Law, Illinois Institute of Technology; member of the bar, Virginia, Pennsylvania, District of Columbia, Maryland, United States Supreme Court; J.D., 1975, Georgetown University Law Center; S.M., 1970, MIT; S.B., 1966, MIT. The author appreciates stimulating contributions from several members of the Villanova Law School faculty, particularly John Hyson, Joseph Dellapenna, and Richard Turkington, and from a continuing dialogue with David R. Johnson about governance of Cyberspace.

1. See, e.g., White House Paper on Electronic Commerce (released June 30, 1997) <http://www.iitf.nist.gov/eleccomm/exec_sum.htm>; Bonn Declaration, (visited Nov. 24, 1997) <http://www2.echo.lu/bonn/final.html>.

2. See Reid Kanaley, Transforming the Internet Into a World Wide Safety Net, PHILADELPHIA INQUIRER, Jan. 17, 1995, at A1 (reporting on the Internet's role as a psychological safety net of support groups and crisis intervention techniques for thousands of people contemplating suicide and experiencing other distress); Peter H. Lewis, Strangers, Not Their Computers, Build a Network in Time of Grief, N.Y. TIMES, Mar. 8, 1994, at A1 (describing economic and personal support by members of computer forum for family of former member of forum killed in robbery).

3. Markets are economic electronic communities, and some satisfy important needs of their participants. Participants in some markets only have transitory attachments. Attendance at a single auction is an example. Participants in other markets have more than transitory attachment. Someone who regularly sells magazine articles to a group of competing publishers is an example. Certain information markets are almost completely electronic, typified by vendors such as WESTLAW, LEXIS, and Dialog. International financial markets relating to wholesale funds transfers and clearance of credit card transactions also are mostly electronic.

4. See discussion infra Part VI.

5. The idea of community presupposes shared interests and activities. "Community: 2. a group of people living together as a smaller social unit within a larger one, and having interests, work, etc. in common ...." WEBSTER'S NEW WORLD DICTIONARY 288 (2d ed. 1972).

6. Terminology is a problem in talking about self-governance. The main problem arises with respect to what the traditional legal system should be called. This paper refers to it as the "traditional" community or legal system. The traditional system could also be thought of as the "surrounding" or "larger" community or legal system, but that suggests that an electronic community is entirely contained within one traditional legal system or community. While "traditional" does not communicate the precise relationship of potentially self-governing systems with other legal systems, it should be understood as referring to the legal system that ordinarily will govern some or all of the activities of the electronic community being discussed.

A glossary of technical terms may be useful at this point:

Open network refers to a computer network to which anyone may connect, as distinguished from a closed network, on which connections are limited to a predetermined group. Proprietary networks are instances of closed networks, on which connections are limited to those who have paid a fee. Proprietary networks sometimes use proprietary protocols for digital communications between the connected computers, further limiting the class that can connect. Open networks almost always use open protocols such as TCP/IP, which defines the Internet. Open architecture refers to the configuration of an open network.

A network services provider offers a means for connecting a computer to a network, as by providing a dial-up telephone number connected to a modem, which is, in turn, connected to the Internet. An internet service provider (ISP) is a type of network services provider. A network administration entity is a person or organization that undertakes to perform network support functions, such as assigning user names, domain names, IP addresses, and e-mail addresses to allow computers to connect to the network and to use its services.

A network community is a group of interdependent persons or entities that communicate with each other predominantly via a computer network. The means of communication include newsgroups, e-mail lists, Web pages, and markets and forums organized through the Web.

7. See generally William S. Byassee, Jurisdiction of Cyberspace: Applying Real World Precedent to the Virtual Community, 30 WAKE FOREST L. REV. 197 (1995) (emphasizing the importance of recognizing differences between on-line and physical interactions, and discussing that autonomous jurisdiction is a utopian solution); Henry H. Perritt, Jr., President Clinton's National Information Infrastructure Initiative: Community Regained?, 69 CHI.-KENT L. REV. 991 (1994) (Charles Green Lecture) [hereinafter Perritt, Community Regained] (exploring the role of new computer and communications technologies in undermining traditional communities and facilitating new ones); Henry H. Perritt, Jr., Dispute Resolution in Electronic Network Communities, 38 VILL. L. REV. 349 (1993) [hereinafter Perritt, Dispute Resolution].

8. One network user, "D," may take intellectual property belonging to another, "F," and send it to a third party, "E." One network user, "A," may defame another, "C," in a communication to "B." "G" may offend "H" by sending him an unsolicited advertisement.

9. The four justifications stated above are not mutually exclusive. For instance, efficiency concerns surface when one considers any of the other justifications. Moreover, the fourth justification (voluntary compliance) is a way of dealing with the third (unenforceability).

10. But see infra Part VII.A.3 (describing limited sanctions available in electronic communities).

11. See RESTATEMENT (SECOND) OF CONTRACTS 30 (1979) (permitting the offeror to specify how the offer may be accepted). Under this rule, offerors in an electronic network community could all specify the same manner of acceptance. The result would be the same as a contract formation rule for the community, such as discussed in the text.

12. "Public key encryption involves mathematical algorithms that factor large numbers. Through the use of appropriate algorithms, it is possible to obtain two numbers, called keys, one of which creates an encrypted message from plain text, and the other of which recovers the plain text from the encrypted version. One of these keys is held by a user of the technique and not disclosed to anyone else. This is called that user's private key. The other number, a key associated with the private key, is disclosed publicly. This is that user's public key. The public and private keys can be used together either to protect privacy in the content of a message, or to construct digital signatures ... or both." HENRY H. PERRITT, JR., LAW AND THE INFORMATION SUPERHIGHWAY 394 (1996) (emphasis in original) [hereinafter PERRITT, INFORMATION SUPERHIGHWAY].

The public and private keys can be used together either to protect privacy in the content of a message, or to construct digital signatures ... or both." Id. at 394.

13. But see Reno v. American Civil Liberties Union, 117 S.Ct. 2329, 2336-38 (1997) (stating that such verification mechanisms were "effectively unavailable to a substantial number of Internet content providers." (citations omitted)).

14. A similar situation led to the development of certain rules in admiralty. See Gordon W. Paulsen, An Historical Overview Of The Development Of Uniformity In International Maritime Law, 57 TUL. L. REV. 1065, 1066-67 (1983) (history of admiralty shows that the motivation for a separate legal system was the need of commerce for international uniformity).

15. This international characteristic is true not only of the Internet; it is also true of multinational businesses. However, the Internet poses greater problems for traditional law enforcement because it permits the effects of conduct occurring elsewhere to be felt within a traditional state without any conduct occurring in that state. Usually a multinational business has some physical presence in the state where its effects are felt.

16. See State v. Jones, 443 A.2d 967, 970 (Md. Ct. Spec. App. 1982) (courts of one state may not hear prosecution for crime committed against laws of another state); Bruce Church, Inc. v. United Farm Workers, 816 P.2d 919, 926 (Ariz. 1991) (distinguishing civil and criminal practices); State v. Miller, 755 P.2d 434, 436 (Ariz. 1988) (international law determines whether state may impose criminal penalties for conduct occurring elsewhere). But see Lauritzen v. Larsen, 345 U.S. 571, 585 (1953) (law of flag covers even criminal conduct under maritime law); United States v. Noriega, 746 F. Supp. 1506, 1512 (S.D. Fla. 1990) (state may criminalize conduct occurring elsewhere but having effects in prosecuting jurisdiction); Rios v. State, 733 P.2d 242, 244 (Wyo. 1987) (state may prosecute for child custody offense committed elsewhere by actors never within state when effects are felt on custodial parent in state); State v. Mazzadra, 258 A.2d 310, 314 (Conn. 1969) (holding that theft of automobile was a transitory crime for which defendants could be prosecuted in Connecticut although the theft occurred in New York).

17. "Comity ... is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws." Joel R. Paul, Comity in International Law, 32 HARV. INT'L L.J. 1, 8 (1991). Mr. Paul criticizes comity as an imprecise concept, meaning little more than choice of law to some analysts, a discretionary doctrine of public international law to others, and a basis for insisting on reciprocity for still others.

18. See RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES 201 (1987) ("Under international law, a state is an entity that has a defined territory and a permanent population, under the control of its own government, and that engages in, or has the capacity to engage in, formal relations with other such entities.").

Under international law, a state has:

(a) sovereignty over its territory and general authority over its nationals;

(b) status as a legal person, with capacity to own, acquire, and transfer property, to make contracts and enter into international agreements, to become a member of international organizations, and to pursue, and be subject to, legal remedies;

(c) capacity to join with other states to make international law, as customary law or by international agreement.

Id. at 206. "Sovereignty" is a term used in many senses and is much abused. As used here, it implies a state's lawful control over its territory generally to the exclusion of other states, authority to govern in that territory, and authority to apply law there. "The sovereignty of a state is reflected also in immunity for the state and its public property from certain exercises of authority by other states." Id. at 206, cmt b.

19. "The Second Circuit has limited the definition of 'state' to entities that have a defined territory and a permanent population, that are under the control of their own government, and that engage in, or have the capacity to engage in, formal relations with other entities." Kadic v. Karadzic, 70 F.3d 232, 239 n.2 (2d Cir. 1995) (quoting Klinghoffer v. S.N.C. Achille Lauro, 937 F.2d 44, 47 (2d Cir.1991)).

20. "[T]he settlers had emigrated from an England that was localist in political organization: early seventeenth-century English towns, boroughs, counties and guilds still operated to a great extent as self-governing (although partially overlapping) entities." Jeremy Elkins, University of Chicago Law School Roundtable Conference: Constitutions and "Survivor Stories" Declarations Of Rights, 3 U. CHI. L. SCH. ROUNDTABLE 243, 255 (1996); see also Joan C. Williams, The Invention Of The Municipal Corporation: A Case Study In Legal Change, 34 AM. U. L. REV. 369, 374 ( 1985):

Groups that the law identified as aggregate corporations seem unrelated to the modern eye: chartered boroughs, companies of merchants, including guilds, and universities. What did these groups share that caused them to be identified as corporations, while other groups, such as villages and towns, were not? The answer is that 'incorporated' entities were corporations because they shared a special relationship to feudal society: each of the major English 'corporations' developed from the late feudal practice of granting charters to groups that wanted to 'opt out' of feudal obligations. This division between groups that were corporations and groups that were not was the second anachronistic aspect of English corporation law.

See also Joel Edan Friedlander, Corporation And Kulturkampf: Time Culture As Illegal Fiction, 29 CONN. L. REV. 31, 76 (1996) (explaining the conflict between the view that groups such as corporations enjoy status as actual person and the orthodox view that they are artificial persons with only such existence as is recognized by the traditional states).

21. See, e.g., Blackshire v. NAACP, 673 N.E.2d 1059, 1061 (Ill. App. 1996) (reversing trial court for inappropriately interfering in internal affairs of private association; law of private associations requires judicial deference to authorized decisions of internal bodies); Georgopoulos v. Teamsters, 942 F. Supp. 883, 895 (S.D.N.Y. 1996) (holding that federal statute does not authorize judicial intervention into internal union affairs except when necessary to enforce minimum statutory standards).

22. See, e.g., United States v. Morris, 928 F.2d 504, 509 (2d Cir. 1991) (defining criminal conduct in terms of what is authorized by private computer system). The suggested defense also might arise if a pornography prosecution were defended on the grounds that the electronic community defines the standards and that the material was not pornographic under those standards.

23. There are several types of immunity. The most basic type is sovereign immunity. Such immunity was rooted in the "perfect equality and absolute independence of sovereigns." Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116, 137, (1812). In recent decades, the former absolute view of sovereign immunity has evolved into a restricted view, which accommodates the reality that many sovereigns engage in commercial activities, as to which they should not necessarily be treated as states. See generally RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW 451 intro. note (1986) (providing immunity to states from the jurisdiction of the courts of other states, except for "claim arising out of activities of the kind that may be carried on by private persons"). Considerations of judicial administration supplement international law in immunizing certain witnesses and chattels from service of process or execution. See RESTATEMENT (SECOND) OF CONFLICT OF LAWS 83 (1969). Charities historically were immune from tort liability based on the rationales that their resources should not be diverted from charitable purposes, that the doctrine of respondeat superior was inapplicable, or that persons accepting benefits from charities waived tort claims. See RESTATEMENT (SECOND) OF TORTS 895(e) & cmts. (1979) (reviewing history and justifications for immunity and repudiating it as a general rule).

24. See, e.g., United States v. LaMacchia, 871 F. Supp. 535, 536-37 (D. Mass. 1994) (example of the use of anonymous file transfer protocol area to exchange software violating copyrights of non-participants); Cubby, Inc. v. CompuServe, Inc., 776 F. Supp. 135, 139-42 (S.D.N.Y. 1991) (use of computer service to defame non-participant).

25. See, e.g., United States v. Alkhabaz, 104 F.3d 1492, 1493 (6th Cir. 1997) (use of electronic mail system to discuss abduction of classmate).

26. See, e.g., Cyber Promotions, Inc. v. Apex Global Info. Serv., Inc., No. Civ.A 97-5931, 1997 WL 634384 (E.D. Pa. Sept. 30, 1997) (granting preliminary injunction against termination of service to mass mailer in violation of Internet access service contract); CompuServe, Inc. v. Cyber Promotions, Inc., 962 F. Supp. 1015, 1028 (S.D. Ohio 1997) (granting preliminary injunction enjoining mass mailer from sending unsolicited advertisements to subscribers); Cyber Promotions, Inc. v. America Online, Inc., 948 F. Supp. 456, 459-60, 464-65 (E.D. Pa. 1996) (denying preliminary injunction against use of tool allowing subscribers to block junk e-mail).

27. See Perritt, Community Regained, supra note 7, at 991 (explaining that controversies over access, authorship, and authentication are the major ones requiring legal attention as the national information infrastructure develops). Authentication includes electronic signatures and other protections against forgery and repudiation of legally significant messages.

28. See id. at 1009.

29. See RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW 401(a) (1987) (listing categories of jurisdiction); id. at 402-03 (listing bases of and limitations on jurisdiction to prescribe); id. at 461 (immunity of foreign state from jurisdiction to prescribe).

30. See id. at 401(b) (1987) (describing jurisdiction to prescribe); id. at 421 (describing jurisdiction to adjudicate); id. at 451 (describing the immunity of a foreign state from jurisdiction to adjudicate).

31. This tripartite classification of types of jurisdiction is an innovation of the third Restatement of Foreign Relations. See id. at 401 rptr. nt. 2 (1987). The second Restatement subdivided jurisdiction into the jurisdiction to prescribe and the jurisdiction to enforce. See RESTATEMENT (SECOND) OF FOREIGN RELATIONS 6 (1965); see also Laker Airways, Ltd. v. Pan American World Airways, Inc., 604 F. Supp. 280, 292 (D.D.C.), aff'd, 731 F.2d 909 (D.C. Cir. 1984) (relating comity to extent of jurisdiction to prescribe, adjudicate, and enforce); Joel P. Trachtman, Conflict of Laws and Accuracy in the Allocation of Government Responsibility, 26 VAND. J. TRANSNAT'L. L. 975, 1046 n.288 (1994) (describing the three components of jurisdiction recognized by the Restatement); Christopher C. Joyner & Wayne P. Rothbaum, Libya and the Aerial Incident at Lockerbie: What Lessons for International Extradition Law?, 14 MICH. J. INT'L L. 222, 234-38 (1993) (using three bases of jurisdiction to explore extraterritorial application of United States law); Bruce Zagaris & David R. Stepp, Criminal and Quasi-Criminal Customs Enforcement Among the U.S., Canada and Mexico, 2 IND. INT'L & COMP. L. REV. 337, 338-42 (1992) (discussing bases of jurisdiction in U.S. and Mexican Law).

32. Joseph Raz, The Concept of a Legal System 3 (2d ed. 1980).

33. Offering normative rules is an assertion of jurisdiction to prescribe. Formalizing mechanisms for rulemaking and rule application involve assertion of jurisdiction to prescribe and to adjudicate, respectively. Sanctioning rule violators asserts jurisdiction to enforce.

34. See H.L.A. HART, THE CONCEPT OF LAW 78-79 (1961). Hart's secondary rules define legislative (rulemaking) and adjudicatory institutions and powers.

35. See infra Part VI.

36. Autonomy based on contract requires the presence of the elements of an enforceable contract: capacity to contract, offer, acceptance, and consideration. See PERRITT, INFORMATION SUPERHIGHWAY, supra note 12, at 379 (explaining the formal prerequisites of contractual obligation).

37. See W. David Slawson, Standard Form Contracts and Democratic Control of Lawmaking Power, 84 HARV. L. REV. 529, 530, 532 (1971) (estimating that standard form contracts account for 99 percent of all contracts made).

38. See Todd D. Rakoff, Contracts of Adhesion: An Essay in Reconstruction, 96 HARV. L. REV. 1173, 1223 (1983).

39. See id. at 1225.

40. But see ProCD v. Zeidenberg, 86 F.3d 1447, 1455 (7th Cir. 1996) (enforcing the terms of shrink-wrap license).

41. See Perritt, Dispute Resolution, supra note 7, at 352.

42. See Slawson, supra note 37.

43. See Rakoff, supra note 38.

44. See 29 U.S.C. 1021-24 (1994) (requiring publication and filing of employee benefit plans).

45. See RESTATEMENT (SECOND) OF CONTRACTS 30, cmt. a ("The offeror is the master of his offer ... . The terms of the offer may limit acceptance to a particular mode."); id. at 60 ("If an offer prescribes the place, time or manner of acceptance its terms in this respect must be complied with in order to create a contract.").

46. See, e.g., id. at 32, cmt. a ("In case of doubt an offer is interpreted as inviting the offeree to accept either by promising to perform what the offer requests or by rendering performance, as the offeree chooses.").

47. See JOHN EDWARD MURRAY, JR., MURRAY ON CONTRACTS, 51 (1974) (consideration noted among six essential elements to formation of a contract).

48. See Henry H. Perritt, Jr., Employee Dismissal Law and Practice 191-272 (3d ed. 1993).

49. Excluding someone from a subnetwork may constitute a breach of contract. Blocking someone's messages may be a tort. Collective enforcement may be a combination in restraint of trade in violation of the antitrust laws. See infra Part VII.B.1.

50. See infra Part V.C.

51. Donovan v. Robbins, 752 F.2d 1170, 1176 (7th Cir. 1985).

52. See, e.g., United Paperworkers v. Misco, 484 U.S. 29, 43 (1987) (reversing refusal to enforce arbitration on public policy groups, but stating general principle).

53. See John Y. Gotanda, Awarding Punitive Damages in International Commercial Arbitrations in the Wake of Mastrobuono v. Shearson Lehman Hutton, Inc., 38 HARV. INT'L L.J. 59, 61 (1997) (explaining that punitive damages in arbitration are allowed under United States law but not under many foreign sovereigns).

54. See 15 U.S.C. 1 (1994).

55. But see Cubby, Inc. v. CompuServe, Inc., 776 F. Supp. 135, 141 (S.D.N.Y. 1991) (unsuccessful action against electronic information service for defamatory statements made under contractual arrangement); Zeran v. America Online, Inc., 958 F. Supp. 1124, 1128-35 (E.D. Va. 1997) (finding negligent defamation claim against information provider preempted; because statements made by party under contract with defendant); Religious Technology Center v. Netcom Online Communications Co., 907 F. Supp. 1361, 1383 (N.D. Cal. 1995) (denying summary judgment on contributory copyright infringement claim based on material posted under contract with defendant).

56. The research and initial drafting of this section was done by Sean P. Lugg, Villanova University School of Law, Class of 1996, October 27, 1999. Mr. Lugg is a law clerk to the author. For background information on a.c.e.n.a., see Scott Southwick, The news.admin.net-abuse FAQ File (visited Nov. 23, 1997) <http://www.bluemarble.net/~scotty/nana-history.html> and Scott Southwick & J.D. Falk, The Net Abuse FAQ (visited Nov. 23, 1997) <http://www.cybernothing.org/faqs/net-abuse-faq.html>.

57. USENET is a collection of several thousand discussion groups called "newsgroups." Participants in USENET feed newsgroup updates to each other, so that a human user can add a comment to a newsgroup by "posting it" on his own computer, and the USENET system then propagates that new posting and all others like it to other USENET computers so that within a day or so, the new postings are available on the newsgroup throughout the Internet. There is no entity that owns or controls USENET; it is a collection of cooperating computer administrators.

58. See generally Sally Hambridge, Netiquette Guidelines (visited Nov. 23, 1997) <http://www.cybernothing.org/cno/docs/rfc1855.html> (summarizing netiquette rules, including general rule against posting messages inconsistent with character of newsgroups or mailing lists).

59. "Flaming" is the practice of besieging an individual with electronic or paper mail to voice disagreement to a posted message.

60. Acting contrary to the beliefs expressed by a consensus of USENET users is a violation of USENET conventions. This proposition is inferable from the general rules of netiquette.

61. C&S were able to transmit their message to approximately 30 million users in less than 90 minutes, with modest cost to the firm.

62. C&S stated that their goal was to make commercial advertising pervasive on the Internet. To accomplish this goal, they planned to create the advertising company Cybersell. See Peter H. Lewis, Arizona Lawyers Form Co. for Internet Advertising, N.Y. TIMES, May 7, 1994 at A1.

63. The newsgroup alt.current-events.net-abuse was "chartered" on April 25, 1994, less than two weeks after the initial C&S post. A.c.e.n.a. was replaced in November 1996 by the news.admin.net-abuse.* groups. See Scott Southwick & J.D. Falk, The Net Abuse FAQ (visited Nov. 27, 1997) <http://www.cybernothing.org/faqs/net-abuse-faq.html>.

Although formed for discussion of net abuses generally, "spamming" is the only occurrence which has been deemed "net-abuse" by consensus. Although the definition of "spam" varies, the generally accepted description is "the same article, or essentially the same article, posted an unacceptably high number of times to one or more newsgroups." Id.

64. See id. Cancelmoose, who now has a home page on the Web-http://www.cm.org/-has left his original activities to others. See Scott Southwick & J.D. Falk, The Net Abuse FAQ (visited Nov. 27, 1997) <http://www.cybernothing.org/faqs/net-abuse-faq.html>.

65. See id.

66. Cancelmoose's cancel messages contain identifiers that may be easily recognized and disregarded by proper configurations of the receiving computer system.

67. See F.W. Maitland, The Constitutional History of England 46 (1908).

68. See M. CHERIF BASSIOUNI, CITIZENS ARREST: THE LAW OF ARREST, SEARCH, AND SEIZURE FOR PRIVATE CITIZENS AND PRIVATE POLICE 9 (1977). "The Statutes of Winchester, enacted in 1285, formalized much of England's practice in matters of criminal justice and rules of apprehension." Furthermore, "the role of private persons in criminal justice was significant." Id. at 9.

69. See id. at 9 ("Not only was it the right of any person to apprehend offenders, there was also a positive duty to drop all work when the 'hue and cry' was raised, and to 'join immediately in the pursuit'; and a private person was required to take part in the community institution of the 'hue and cry.'" (quoting J. HALL, THEFT, LAW AND SOCIETY, 162 (2d ed. 1952)); see also John Simon, Note, Tennessee v. Garner: The Fleeing Felon Rule, 30 ST. LOUIS U. L.J. 1259, 1263 (1986) (describing historical practice of outlawry; once one was declared an outlaw, every citizen had a duty to apprehend, and if necessary, to kill the outlaw).

70. See BASSIOUNI, supra note 68, at 87-95 (providing an index of state citizen's arrest statutes).

71. See Donald M. Heath, Written Testimony of Donald M. Heath to U.S. House of Representatives Committee on Science Subcommittee on Basic Research For: Hearing on Internet Domain Names (visited Oct. 10, 1997) <http://www.house.gov/science/heath_9-30.html>; see generally Internet Society (last modified Oct. 8, 1997) <http://www.isoc.org/>.

72. See generally Internet Assigned Numbers Authority (visited Sept. 13, 1997) <http://www.isi.edu/iana/>.

73. "The [Internet Architecture Board (IAB)] is responsible for defining the overall architecture of the Internet ... . The IAB also serves as the technology advisory group to the Internet Society, and oversees a number of critical activities in support of the Internet." The Internet Engineering Task Force: Glossary (visited Oct. 11, 1997) <http://www.ietf.cnri.reston.va.us/glossary.html#IAB>.

74. See generally International Telecommunication Union (last modified Sept. 30, 1997) <http://www.itu.int>. The ITU is a treaty based upon inter-governmental organization, concerned with international telecommunications regulation. See id.

75. "[The International Trademark Association (INTA)] is an association of trademark owners and advisors worldwide. INTA is dedicated to the support and advancement of trademarks and related intellectual property concepts as essential elements of effective national and international commerce." INTA Online (visited Oct. 11, 1997) <http://www.inta.org>.

76. See generally The World Intellectual Property Organization (WIPO) (last modified Oct. 7, 1997) <http://www.wipo.org/eng/index.htm>. The World Intellectual Property Organization is a treaty-based intergovernmental organization providing a framework for multi-national negotiation of intellectual property treaties. See id.

77. Donald M. Heath, Written Testimony of Donald M. Heath to U.S. House of Representatives Committee on Science Subcommittee on Basic Research, For: Hearing on Internet Domain Names (visited Oct. 10, 1997) <http://www.house.gov/science/heath_9-30 html>.

78. The International Telecommunications Union is an entity with some advantages to nongovernmental participants because it permits full scale participation by such entities in its deliberations. This is not true of most international multilateral organizations.

79. See generally Donald M. Heath, Written Testimony of Donald M. Heath to U.S. House of Representatives Committee on Science Subcommittee on Basic Research, For: Hearing on Internet Domain Names (visited Oct. 10, 1997) <http://www.house.gov/science/heath_9-30 html>; The Generic Top Level Domain Memorandum of Understanding (visited Oct. 10, 1997) <http://www.gtld-mou.org/>. In private conversations with the author in the Summer of 1997, some entities shown as subscribed to the IAHC recommendations questioned whether they knowingly consented to be signatories.

80. The characters after the period in the examples given are Top Level Domains (TLD) signifying respectively two educational institutions, a non-profit organization, a United States governmental body, and a commercial enterprise.

81. If one DNS server does not know a domain name for which it is asked to supply the IP address, it refers the request to another DNS server with broader knowledge of that part of the Internet domain.

82. See generally Donald M. Heath, Written Testimony of Donald M. Heath to U.S. House of Representatives Committee on Science Subcommittee on Basic Research, For: Hearing on Internet Domain Names (visited Oct. 10, 1997) <http://www.house.gov/science/heath_9-30 html>.

83. Final Report of the International Ad Hoc Committe: Recommendations for Administration and Management of gTLDs (visited Sept. 13, 1997) <http://www.gtld-mou.org/draft-iahc-recommend-00.html>.

84. See generally Donald M. Heath, Written Testimony of Donald M. Heath to U.S. House of Representatives Committee on Science Subcommittee on Basic Research, For: Hearing on Internet Domain Names (visited Oct. 10, 1997) <http://www.house.gov/science/heath_9-30 html>.

85. See Generic Top-Level Domain (gTLD-MoU) Technical Meeting (visited Oct. 11, 1997) <http://www.gtld-mou.org/press/pab-2.html>.

86. But see Bruno Giussani, Cybertimes: International Council to Take Up Issue of Domain Names, N.Y. TIMES, June 18, 1997, at A1 (reporting on opposition to ITU role by Internet service providers).

87. Final Report of the International Ad Hoc Committee: Recommendations for Administration and Management of gTLDs (visited Oct. 11, 1997) <http://www.gtld-mou.org/draft-iahc-recommend-00.html>.

88. See Memorandum of Understanding for the Internet Council of Registrars ("Core-MoU") (visited Oct. 11, 1997) <http://www.gtld-mou.org/docs/cor-mou.htm>.

89. See id.

90. "Once an alpha numeric string has been deemed, for purposes of this policy, to be internationally known, and existing intellectual property rights have been demonstrated, an exclusion could be decided by an ACP, subject to consideration of rights held by others." [Revised] Substantive Guidelines Concerning Administrative Domain Name Challenge Panels (visited Nov. 7, 1997) <http://www.gtld-mou.org/docs/racps.htm>. These guidelines are reserved, pending further public discussion on the details of the Substantive Guidelines.

91. Id.

92. See id.

93. See id.

94. Id.

95. See id.

96. "Any dispute which has been submitted to an ACP may be brought, at any time before, during or after the administrative challenge procedure, to a national or regional court, which would hear the dispute under its normal jurisdictional and substantive rules." Id.

97. Remedies in law are intended to achieve at least three ends. First, damages compensate the victim. Second, remedies are intended to deter misconduct by punishing actors; knowledge of the possibility of such penalties deters misconduct. Third, remedies such as injunctions and incarceration are intended to block further misconduct by the actor.

98. See supra Part IV.A.

99. See CompuServe, Inc. v. Cyber Promotions, Inc., 962 F. Supp. 1015, 1024 (S.D. Ohio 1997) (referring to policy statement limiting uses of service).

100. See id. at 1024 (granting preliminary injunction on trespass theory: connecting to Internet is no more a relinquishment of power over service provider's private property than any invitation to business customer is a relinquishment of power over inviter's premises).

101. See Cyber Promotions, Inc. v. Apex Global Info. Servs., Inc., No. Civ.A 97-5931, 1997 WL 634384, at *3 (E.D. Pa. Sept. 30, 1997) (recognizing general rule, but enjoining termination of service before expiration of 30-day contractual notice).

102. See Cyber Promotions, Inc. v. America Online, Inc., 948 F. Supp. 456, 459-60 (E.D. Pa. 1996) (describing software permitting users to block unsolicited e-mail); CompuServe, 962 F. Supp. at 1017 (describing orders to cease and desist, followed by use of software blocking devices).

103. See CompuServe, Inc. v. Cyber Promotions, Inc., 962 F. Supp. 1015, 1017 (S.D. Ohio 1997) (granting injunction on trespass theory).

104. See Cyber Promotions, Inc. v. America Online, Inc., 948 F. Supp. 456, 457-58 (E.D. Pa. 1996) (reviewing result in earlier First Amendment ruling, and summarizing ineffectiveness of antitrust argument).

105. See id. at 464.

106. See Apex, 1997 WL 634384, at *3 (granting injunction against termination of service, based on failure to observe contractual notice period).

107. 436 U.S. 149 (1978).

108. See e.g., Smith v. Chipman, 348 P.2d 441, 442 (Or. 1960); see also Shane J. Osowski, Alaska Distress Law in the Commercial Context: Ancient Relic or Functional Remedy?, 10 ALASKA L. REV. 33, 45-48 (1993); Douglas Ivor Brandon et al., Special Project, Self Help: Extra-Judicial Rights, Privileges and Remedies in Contemporary American Society, 37 VAND. L. REV. 845, 937, 1040 (1984).

109. See, e.g., Cyber Promotions, Inc. v. America Online, Inc., 948 F. Supp. 456 (E.D. Pa. 1996); Cyber Promotions, Inc. v. Apex Global Info. Servs., Inc., No. Civ.A. 97-5931, 1997 WL 634384 (E.D. Pa. Sept. 30, 1997).

110. Prescriptive authority is authority to make rules. Adjudicatory authority is authority to decide cases. See supra Part IV.A (considering prescriptive and adjudicative immunity in the international context).

111. The Raz elements relate to the existence and comprehensiveness of a legal system. See RAZ, supra note 32, at 1-2 (explaining that a complete theory of legal system seeks to solve four problems, including existence and membership). They are in a sense attributes of sovereignty. The jurisdictional models of prescription, adjudication, and enforcement are concerned with the scope of power of a sovereign, usually assuming that a sovereign exists. See RESTATEMENT (THIRD) OF FOREIGN RELATIONS 401 (1987) (describing three types of jurisdictions as "limitations" on state power in international law).

112. See Machinists Lodge 19 v. Soo Line R. Co., 850 F.2d 368, 375 (8th Cir. 1988) (stating general rule and noting exceptions).

113. See, e.g., 29 U.S.C. 159 (1994) (granting the National Labor Relations Board jurisdiction to define the bargaining unit); see also National Labor Relations Board v. Gissel Packing Co., 395 U.S. 575, 610-16 (1969) (describing situations in which a court may issue a bargaining order establishing the union as bargaining representative); Gourmet Foods, Inc. v. Warehouse Employees of St. Paul, 270 N.L.R.B. 578 (1984) (holding that the National Labor Relations Board does not have authority to establish a union as a bargaining representative when the union never had majority support within the bargaining unit).

114. See National Labor Relations Board v. Insurance Agents Int'l Union, 361 U.S. 477, 486-88 (1960) (slowdown concurrent with labor negotiations does not constitute a refusal to bargain collectively; Congress intended that parties to collective bargaining have wide range of discretion).

115. See H.K. Porter Co. v. National Labor Relations Board, 397 U.S. 99,106-09 (1970) (holding that the National Labor Relations Board does not have the authority to compel the acceptance of any contractual provision in a collective bargaining agreement).

116. See, e.g., United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 579 (1960).

117. See, e.g., San Diego Building Trades v. Garmon, 359 U.S. 236, 239-48 (1959) (holding state law against secondary pressure preempted); Lodge 76, Int'l Assoc. of Machinists and Aerospace Workers v. Wisconsin Employment Relations Comm'n, 427 U.S. 132, 144 (1976) (areas not addressed by federal law nevertheless are shielded from state regulation because Congress meant for them to be unregulated by law).

118. See, e.g., Lingle v. Norge Div. of Magic Chef, 486 U.S. 399, 406-10 (1988) (public policy tort claim for wrongful dismissal is not preempted by federal enforcement of collective bargaining agreement covering employee when state claim is completely distinct).

119. Compare Brown v. Pro Football, Inc., 116 S. Ct. 2116, 2120-23 (1996) (nonstatutory antitrust exemption extended to unilateral imposition of compensation after impasse in bargaining), with Connell Construction Co. v. Plumbers Local 100, 421 U.S. 616, 626-35 (1975) (antitrust exemption did not extend to "pre-hire" agreement negotiated before any represented employees were in bargaining unit).

120. Membership in military societies is involuntary both because of the common historical practice of conscription, in which initial membership is involuntary, and because a member of the military establishment even if she was a volunteer at the outset is not free to terminate her membership unilaterally during its term.

121. See Underhill v. Hernandez, 65 F. 577, 581-83 (2d Cir. 1895) (reversing damages judgment against Venezuelan officer for harm done to an American citizen during revolution and reviewing cases establishing proposition that military officer enjoys sovereign immunity in international law).

122. A de facto government "exists where a portion of the inhabitants of a country have separated themselves from the parent state, and established an independent government. The validity of its acts, both against the parent state, and its citizens or subjects, depends entirely upon its ultimate success" Williams v. Druffy, 96 U.S. 176, 186 (1877).

123. See, e.g., United States v. Bevans, 16 U.S. (3 Wheat) 336, 386 (1918) (reversing conviction of marine sentry for murder committed aboard a ship of war because state courts had jurisdiction).

124. See, e.g., Parisi v. Davidson, 405 U.S. 34, 35 (1972) (holding that habeas corpus may issue to inquire into basis for keeping conscientious objector in the service).

125. See, e.g., Miller v. Newbauer, 862 F.2d 771, 774 (9th Cir. 1988) (well settled that no damages action may be pursued); Walden v. Bartlett, 840 F.2d 771, 773-74 (10th Cir. 1988) (affirming denial of damages but reversing denial of injunction for military prisoner alleging due process violations in connection with disciplinary proceedings); Knutson v. Wisconsin Air Nat'l Guard, 995 F.2d 765, 769-70 (7th Cir. 1993) (noting that there is some level of judicial review). But see Tigue v. Swain, 585 F.2d 909, 914 (8th Cir. 1978) (denying absolute immunity for alleged libel and false imprisonment by military officer).

126. See, e.g., Walden, 840 F.2d at 774-75 (reversing denial of injunction against military officials for alleged due process violations in connection with military disciplinary proceedings); Knutson, 995 F.2d at 770-71 (canvassing cases and concluding that no per se rule exempts military decisions from injunctive relief).

127. See B. ZOBEL, THE BOSTON MASSACRE 241-94 (1970) (describing the trial of British soldiers in regular civilian courts for "Boston massacre" resulting in the acquittal of most of them).

128. See U.S. CONST. amend. I.

129. Primate and Bishop's Synod of the Russian Orthodox Church Outside Russia v. Russian Orthodox Church of the Holy Resurrection, Inc., 617 N.E.2d 1031, 1033 (Mass. 1983) (describing a "neutral principles of law" analysis).

130. See, e.g., Christofferson v. Church of Scientology of Portland, 644 P.2d 577, 598 (Or. 1982) (remanding for new trial, rejecting outrageous conduct liability because of voluntary nature of plaintiff's membership, and articulating rule limiting fraud liability to statements not involving religious matters).

131. See, e.g., Wollersheim v. Church of Scientology, 66 Cal. Rptr. 2d 1, 6-18 (Cal. 1989) (affirming in material part judgment on jury verdict against religious organization).

132. See Note, State Power And Discrimination By Private Clubs: First Amendment Protection For Nonexpressive Associations, 104 HARV. L. REV. 1835, 1847 (1991) (articulating basic propositions).

133. See, e.g., Rowland v. Union Hills Country Club, 757 P.2d 105, 108-09 (Ariz. 1988) (reversing summary judgment for country club officers because of factual question whether club followed bylaws in expelling members); Straub v. American Bowling Congress, 353 N.W.2d 11, 13 (Neb. 1984) (rule of judicial deference to private associations and compliance with association requirements, counseled affirmance of summary judgment against member of bowling league who complained his achievements were not recognized). But see Wells v. Mobile County Bd. of Realtors, Inc., 387 So. 2d 140, 142-45 (Ala. 1980) (claim of expulsion of realtor from private association was justiciable and bylaws, rules, and regulations requiring arbitration were void as against public policy; reversing declaratory judgment for defendant association).

134. See generally Henry H. Perritt, Jr., Legal and Technological Infrastructures for Electronic Payment Systems, 22 RUTGERS COMPUTER & TECH. L.J. 1 (1996).

135. Corporations have normative rules with respect to the allocation and commitment of corporate resources. They usually have rules relating to conduct in the workplace or on behalf of the corporation. They have institutions for rulemaking-usually the board of directors and a variety of management committees. They also may have formal institutional mechanisms for rule application and enforcement, although this also may be handled less formally through the managerial chain of command, with each supervisor applying and enforcing rules as to her subordinates. Coercion is limited to exclusion from the community, demotion, or repudiation of an action or decision.

136. See Stockmar v. Warrec Co., 844 F. Supp. 103 (D. Conn. 1994) (holding corporate officers not personally liable under state wage payment statute based on legislative intent).

137. See generally Restatement (Second) Agency (1958).

138. See id at 140-43; HAROLD G. REUSCHLEIN & WILLIAM A. GREGORY, HANDBOOK ON THE LAW OF AGENCY 118 at 182 (1979) (disclosing principal protects agent from liability).

139. See id. 124 at 193-94 (acting for principal does not exculpate agent from tort liability). See United States v. Wise, 370 U.S. 405, 416 (1962) (reversing dismissal of Sherman Act indictment against individual corporate officer); Compare Bourgeois v. Commonwealth, 227 S.E.2d 714, 718-19 (Va. 1976) (holding corporate president not criminally liable for grand larceny absent proof he actually participated), with United States v. Dotterweich, 320 U.S. 277, 285-86 (1943) (upholding conviction of corporate president for criminal violations of Federal Food Drug and Cosmetic Act despite lack of proof of personal knowledge or participation).

140. See Gradison v. Ohio Oil Co., 156 N.E.2d 80, 83 (Ind. 1959) (construing state statute as granting qualifying foreign corporations all of the powers of domestic corporations); Cincinnati, Indianapolis & W.R.R. Co. v. Barrett, 94 N.E.2d 294, 296-97 (Ill. 1950) (holding foreign corporation that acquired domestic railroad not exempt from payment of registration fee merely because domestic railroad was exempt).

141. See generally LUCIE A. CARSWELL & XAVIER DE SARRAU, LAW & BUSINESS IN THE EUROPEAN SINGLE MARKET 4.02 at 4-7 (1993) (explaining that liability is joint and several under European community law unless certain formalities are satisfied); id. 4.03 at 4-11 (describing five formal requirements for the incorporation of a company); id. 4.09[3] at 4-65 (describing European economic integrated grouping ("EEIG") as a kind of corporate joint venture operating across boundaries within the European community, but liabilities are joint and several thus negating much of the purpose). Inter-partner contracts purporting to limit liability are ineffective as against third parties for EEIGs. Id. at 4-70.

142. Acceptance of the concept that a corporation is an entity separate from its shareholders or members long antedates the development of limited liability for shareholders, which occurred in the middle of the nineteenth century in England, when law developed new structures to allow capital aggregation to exploit new technologies and larger markets made possible by new technologies. See P. Blumberg, The Law of Corporate Groups: Procedural Law 1-2 (1983).

143. Theoretically, a corporation consists of three tiers: (1) the shareholders who are traditionally viewed as the ultimate owners of the enterprise, (2) the board of directors, who are the managers of the corporation's affairs, and (3) the officers, who traditionally act as an officer, a director, and a shareholder. HAMILTON, CASES AND MATERIALS ON CORPORATIONS 9 (1994).

144. See, e.g., Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976) (finding that a corporation has a First Amendment right to free speech); Helicopteros Nacionales de Columbia v. Hall, 466 U.S. 408 (1984) (holding a corporation is entitled to due process). Immunity in the contract and criminal areas is justified by two rationales: (1) the practicability of enforcement; and (2) the perception that corporate institutional liability is more likely to result in internalization of societal goals and the mobilization of corporate bureaucratic institutional mechanisms to enforce traditional legal standards.


146. See id. at 3-4 (posing question of whether international regime of regulation of multinational corporations is desirable).

147. See id. at 249-294.

148. See id. at 300.

149. See Harold J. Berman & Colin Kaufman, The Law of International Commercial Transactions (Lex Mercatoria), 19 HARV. INT'L L. J. 221, 224-29 (1978).

150. Lex mercatoria actually is a broader concept than the law merchant. Philip De Ly described lex mercatoria as consisting of "self regulatory rules of professional organizations, usages, customs, general conditions, usual contractual clauses and techniques, arbitration rules, arbitral case law, general principles of private law and general principles of conflict of laws." FILIP DE LY, INTERNATIONAL BUSINESS LAW AND LEX MERCATORIA 221 (1992)


152. See Mark Garavaglia, In Search of the Proper Law in Transnational Commercial Disputes, 12 N.Y.L. SCH. J. INT'L & COMP. L. 29, 34-35 (1991).

153. See id. at 35.

154. See id. at 36-39 (describing fair courts).

155. Id. at 33 n.10. But see DE LY, supra note 150, at 17-19 (expressing doubt on whether law merchant ever was completely separate from national legal systems).

156. See Garavaglia, supra note 152, at 38-39; see DE LY, supra note 148, at 17 (explaining that the substantive absorption of law merchant by common law dates to 1756 when Chief Justice Mansfield began to qualify trade custom as legal rules applicable to all citizens).

157. See Garavaglia, supra note 152, at 40-55, 79-102 (describing international arbitration, concepts of law merchant in American commercial law, the emphasis on trade usages and regular practices in Uniform Commercial Code, and American attitudes toward international commercial arbitration); Parsons & Whittemore Overseas Co. v. Societe Generale, 508 F.2d 969, 973-77 (2d Cir. 1974) (rejecting public policy challenge to international arbitration decision).

158. Mr. Garavaglia's work does not make it entirely clear whether the fair courts imposed their own sanctions or relied upon traditional legal institutions to enforce their judgments. See Garavaglia, supra note 152, at 36-38 (describing fair courts and state facilitation of fair court proceedings).

159. DE LY, supra note 150, at 209-10 (1992).

160. See id. at 16.

161. See id. at 225.

162. Id. at 221.

163. See id. (describing how usages must be proven, while customs as rules of law may not need to be proven).

164. See supra Part III.

165. See supra Part V.A-B.

166. The same individuals chosen to be rule-makers also could be dispute resolvers.

167. See supra notes 72-96 and accompanying text.

168. Arbitration is usually thought of as an adjudicatory mechanism that applies preexisting rules. However, there is no bright-line between rulemaking and adjudication in the common law tradition. Arbitrators and common law tradition can make law by elaborating and extending basic principles.

169. Compelling submission to private governance may be politically unpalatable until there is more empirical evidence of the desirability of such compulsion.

170. See supra Part III.B.

171. As I use the term, "legalizing" signifies recognizing privileges or immunities for self-governing activities that otherwise would produce liability in traditional legal institutions.

172. See supra note 12.

173. Revocation of a domain name is an effective means for expelling someone from the Internet. Accordingly the IAHC report provides for effective enforcement-at least if solidarity can be maintained. See supra notes 72-96 and accompanying text.

174. See supra Part VI.

175. See infra Part VII.B.

176. Multidimensionality is not fully explanatory. For example, stock exchanges are communities that surely are unidimensional in the modern world. Nevertheless, they exercise a good degree of self-government. This fact can be explained within the basic model by observing that when a single dimension has great importance to the members of a community, it can dominate other dimensions that tie the member to other communities. Alternatively, one can reason that an extremely important single dimension (like the economic interests of a broker in her membership in a stock exchange) spills over into other dimensions: A broker expelled from a stock exchange may be unable to send her children to college and may lose her spouse, thus implicating social, familial, and other noneconomic dimensions.

177. See Perritt, Community Regained, supra note 7, at 1009.

178. See infra Part IV.B.1-2.

179. A thorough analysis of the antitrust implications of Internet self-governance is beyond the scope of this paper. This paper will briefly outline the major considerations. For a more complete analysis, see generally PERRITT, INFORMATION SUPERHIGHWAY, supra note 12. Of course, antitrust laws differ among countries around the world. While the basic rules are similar to those applied in the United States, the details vary considerably. Because of the similarities in the laws, this discussion will focus on the antitrust laws of the United States. However, it is important to note that the self-governance of electronic communities must be effective globally. Ultimately, an international agreement may be necessary to give requisite certainty. In order to be effective, this international agreement should be self-executing so that legislative implementation by state parliaments is not necessary.

180. Section 1 of the Sherman Act declares that "[e]very contract, combination in the form of trust or otherwise, or conspiracy in restraint of trade or commerce among the several States, or with foreign nations, is hereby declared to be illegal." 15 U.S.C. 1 (1994).

181. See, e.g., Eastern States Retail Lumber Dealers' Ass'n v. United States, 234 U.S. 600, 606-14 (1914); Klor's, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 209-14 (1959).

182. See, e.g., Standard Oil Co. v. United States, 337 U.S. 293 (1949); Tampa Electric Co. v. Nashville Coal Co., 365 U.S. 320 (1961). Exclusive dealing arrangements may also violate section 3 of the Clayton Act. See 15 U.S.C. 14 (1994). However, the Clayton Act only applies to the sale of goods. Moreover, exclusive dealing arrangements may violate section 5 of the Federal Trade Commission Act. See 15 U.S.C. 45(a)(1) (1994) (declaring unlawful, any "[u]nfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce.").

183. In making this determination, courts consider a number of factors including the natural and probable consequences of the restraint, the history of the restraint, the evil believed to exist, the purpose of the restraint, the market power of the participants, and any other less restrictive alternatives. See, e.g., Chicago Board of Trade v. United States, 246 U.S. 231, 238-39 (1918); National Collegiate Athletic Ass'n v. Board of Regents, 468 U.S. 85, 104-13 (1984).

184. See, e.g., Northern Pacific Railway v. United States, 356 U.S. 1, 5 (1958); Northwest Wholesale Stationers, Inc. v. Pacific Stationery & Printing Co, 472 U.S. 284, 289 (1985).

185. Northern Pacific, 356 U.S. at 5.

186. See e.g., Bar. Lab., Inc. v. Abbott Lab., 978 F.2d 98, 110 (3d Cir. 1992).

187. See, e.g., Eastern States Retail Lumber Dealers' Ass'n v. United States, 234 U.S. 600, 606-14 (1914); Klor's, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 209-14 (1959).

188. Northwest Wholesale Stationers, 472 U.S. at 295.

189. See id. at 294.

190. Health care peer review is a system through which health care professionals, usually physicians, review the conduct of another member of their profession to determine if it satisfies the applicable norms of practice. When the answer is "no," the result often is exclusion from practice in a particular facility such as a hospital or expulsion from the profession altogether.

191. Other examples of antitrust immunity for self-governing communities are considered in the review of models for self-governance outside the cyberspace context. See supra Part VI.

192. The dimensions of the antitrust liability of Health Care Peer Reviews have been altered by Congress' enactment of the Federal Health Care Quality Improvement Act, 42 U.S.C. 11112 et seq. (1994), which immunizes from antitrust liability peer review actions meeting certain criteria: being based on a reasonable belief that the action furthered quality health care, appropriate fact gathering, notice and hearing, and reasonable belief resulting from the fact gathering and hearing that the action taken was warranted. The health care peer review act requires the opportunity for a hearing either before an arbitrator or before a hearing officer or panel not in direct competition with the involved physician. See 42 U.S.C. 11112(b)(3)(A)(iii) (1994). The federal act permits states to opt in or opt out. However, even before the enactment of the new legislation, not all Health Care Peer Reviews were subject to antitrust liability.

193. Willman v. Heartland Hosp. East, 34 F.3d 605, 610 (8th Cir. 1994).

194. See id. at 610-611.

195. See id. at 611.

196. See Clark C. Havighurst, Professional Peer Review and the Antitrust Laws, 36 CASE W. RES. L. REV. 1117, 1119 (1986).

197. See id. at 1120.

198. See id. at 1129.

199. See supra Part III.

200. See RESTATEMENT (SECOND) OF TORTS, 585-590 (absolute privilege to make accusations as a part of legal proceedings). See generally PERRITT, INFORMATION SUPERHIGHWAY, supra note 12 (discussing tort privileges).

201. It also may be questioned whether the use of digital technologies does tend to make things less formal and more fluid. It may be that the increased scope of participation made possible by digital technologies will increase formality as a means of coping with the disorder and anarchy that otherwise would result.

202. See generally PERRITT, INFORMATION SUPERHIGHWAY, supra note 12 (explaining purposes of formalities in contracting).

203. See supra note 1 and accompanying text.