Thursday, November 17, 2016

Driving a Stake in the Ground: What is Cyber Jurisprudence?


Cyber jurisprudence is not well-defined as a discipline and, moreover, is not at all well-understood. To get to a useful definition of the term we need to understand some other terms and where they fit (or don't fit).


Cyber Science

This is a term that was, arguably, coined by the US Naval Academy but now seems to be used by Annapolis as a synonym for cyber operations. A better definition has been suggested by Wiktionary (https://en.wiktionary.org/wiki/cyberscience):

Any scientific discipline that relates to cyberspace, such as cyberpsychology.

Perhaps the best characterization comes from a paper on the IEEE Explore database called Perspectives on Cyber Science and Technology for Cyberization and Cyber-enabled Worlds. Their definition is:

Cyber science is concerned with the study of phenomena caused or generated by the cyberworld and cyber-physical, cyber-social and cyber-mental worlds, as well as the complex intertwined integration of cyber physical, social and mental worlds.

The implication is that in order to be cyber science, a discipline must be totally integrated with cyberspace.  That means that - even though there might be antecedents in other natural sciences or mathematics, in order for a discipline to be considered a cyber science it must have a primary dependency that is carried out exclusively in relation to cyberspace.


Cyber Law

Cyber law seems to be inclusive of everything that has anything to do with computers.  That, unfortunately, is such an oversimplification as not to be useful. The Cyber Laws website (http://cyber.laws.com/cyber-law/cyber-laws) has a definition that approaches usefulness:

... legislation, legality, and practice of lawful, just, and ethical protocol involving the internet, as well as alternate networking and informational technologies.

In short, cyber law deals exclusively with cyber science.

Unfortunately, there are other definitions that blur the point of defining cyber law by including anything that happens in cyberspace.  So a case of defamation - carried out on a Facebook page - becomes a cyber tort simply because it occurred online. However, where is the difference between printing the defamatory statement on Facebook (or Twitter or any other social media site) and in the Wall Street Journal?

One might argue that Facebook has a broader audience than the Journal, but that is of no import. Defamation requires publication only to a third party.  Damages might well be decided by the breadth of dissemination, but there is no difference, prima facie, between defamation on Facebook and in a widely-distributed newspaper.

In short, cyberspace neither was a necessary nor a sufficient means for determining that the example required a special cyber law to prosecute the tort of defamation.


Jurisprudence

Jurisprudence, simply put, is the science, philosophy and theory of the law.  It often is taken by lay persons as a synonym for the law itself but, in reality, it is a more philosophical approach to why we have laws, what does it mean to have (or be) laws and what is the theory behind such laws.

Returning to Cyber Jurisprudence

With those supporting definitions in mind, we return to the question of what cyber jurisprudence is. Stitching the definitions together we get that it is the theory and philosophy of cyber law. Since cyber law deals exclusively with cyber science we get that cyber jurisprudence deals with the theory and philosophy of the law as it relates to cyber science.

Thus, to be included in a study of cyber jurisprudence we must address cyber science, the law and the theory and philosophy of their intersections.  That is what we will do as this blog progresses.






No comments:

Post a Comment

Leave a Comment