Towards a Theory of CyberPlace: A Proposal for a New Legal Framework

This article discusses whether the existing legal framework for property and places should apply to the electronic medium, or whether the uniqueness of the Internet requires a different characterization. The source of the right of the owner of an Internet site to legally control access to and use of the site and its content is the tort law of trespass and the law of contract. The sources of the right of users to freely access and use Internet content are the policies of free speech and public accommodation. Part I of this paper reviews the common law trespass theories that courts have employed to regulate online activities. Part II considers the definition of “place”1 and whether particular uses of the Internet are “places of public accommodation.”2 Part III proposes a new legal framework that could serve as a basis for legislative action to promote both of these policies in cyberspace. This framework recognizes the unique qualities of the Internet, incorporating both the public policy favoring freedom of expression and the private property interest in controlling unauthorized use of Internet resources.