Notes: This is another paper on the legal consequences of technical principles, published in the same year as The Layers Principle. But where Solum and Chung focus on the consequences for regulators of the fact that the Internet is designed in a particular way, Feigin focuses on the consequences for private parties and judges. Given how Internet protocols work, Feigin argues, people who use those protocols in particular ways should be treated as having consented (or not) to particular conduct. This is also an interesting kind of argument, but be clear that it is a different kind of argument than we discussed last time.
Questions:
What is a protocol?
Was Feigin’s description of Internet protocols accurate in 2004? Is it accurate now in 2023?
Is Feigin right that use of an Internet protocol is a kind of consent? If so, is it the kind of consent that can be withdrawn by an explicit statement to the contrary?
What kind of technical information do you need about a protocol to attribute legal consequences to its use? What else do you need to know?
Could someone define a new protocol that is like IP or TCP or HTTP but which does not have these consent-granting features?
Additional Resources:
Joshua A.T. Fairfield, “Do Not Track” as Contract, 14 Vanderbilt Journal of Entertainment and Technology Law 545 (2012). Another article arguing that the use of a particular protocol has legal consequences.
James Grimmelmann, Consenting to Computer Use, 84 George Washington Law Review 1500 (2016). My view on what constitutes “consent” in fact and in law when it comes to computer systems.
Orin S. Kerr, Norms of Computer Trespass, 116 Columbia Law Review 1143 (2016). Not a consent-based argument, but not not a consent-based argument, either.