Speed is an asset in computer technology, but not necessarily in law. The new technologies of the twentieth and twenty-first centuries have inevitably raised new legal questions; all too often, the response to these new legal challenges is a hastily enacted federal statute. If the Internet allows children access to pornography, we enact the Communications Decency Act ("CDA"). Commercial concerns about cyber-authenticity prompt the Electronic Signatures in Global and National Commerce Act ("E-SIGN"). Are cybersquatters creating domain name problems? We've got a law for that, too. These are just a few of the quick fixes driven by a perceived need to address new legal problems arising from new technologies.
But many of these perceived "crises" could actually have been resolved by previously established law. The common law and judicial interpretation of existing statutes were working towards a solution--or had reached one-when the new statute threw a monkey wrench into the works. Each of these federal statutes has serious flaws, some of which arise because the statute short-circuited the common law's traditional method of dealing with new problems. The Communications Decency Act has already fallen; in its haste, Congress failed to appreciate the statute's constitutional implications. This Article argues that both E-SIGN and the Anticybersquatting Consumer Protection Act (ACPA), while not unconstitutional, are similarly shortsighted. More broadly, I suggest that, at least in the context of new computer technology, allowing time for incremental judicial responses is often superior to instant legislative solutions of a global nature.
Haste Makes Waste: Congress and the Common Law in Cyberspace,
55 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol55/iss2/1