Hurricane Katrina tore families away from their homes and from each other. And with the Gulf Coast in chaos, electricity out and cell-phone towers down, people in far-flung places across the United States turned to the robust, decentralized internet to find their loved ones.
While some evacuees posted their whereabouts on existing sites like craigslist, others turned to a variety of new message boards created specially for evacuees.
Almost immediately, there were too many sites to choose from. A grandchild looking for her grandmother, or a father for his son and wife, had literally dozens of online databases to search. The internet offered a solution here as well. An international, ad hoc group of self-described geeks built a system that automatically combined information from the dozens of refugee listing sites into a single, searchable database that family members could use to find each other.
That database, at Katrinalist.net, is tangible evidence of the beauty and power of internet technology in the hands of well-meaning citizens.
It's also an endangered species. In a few years, legal doctrines being aggressively pushed by corporations and law enforcement officials might prevent something cool and useful like this from ever happening again.
In a variety of cases, courts are holding that people can't access internet computers without first getting authorization from the computer's owner. Judges are assuming that the public has no right to use unsecured computers connected to the internet, and are requiring the public to get permission first.
For example, many ISPs and some prosecutors are arguing that it's a crime to use unsecured wireless access points without the explicit permission of the owner. Antispam crusaders advocate blocking any e-mails that haven't been whitelisted first. Airlines like American and auction sites like eBay -- which want customers to visit their websites, view their ads and "join the community" -- have won court injunctions against companies that collect price information on plane fares or auctions to help consumers comparison shop.
Under ancient legal theories like "trespass to chattels" and ill-advised modern laws like the federal Computer Fraud and Abuse Act and state computer crime statutes, courts are holding that if you don't have authorization, you can't access computers.
And if you can't access computers, you can't collect data about airfares, auctions or evacuees.
The better world is one in which we don't need to seek permission or risk punishment to do cool stuff that makes the world a better place. In the early days of the internet, a lot of people felt that we'd found that better world. Thanks to the internet's open protocols, many of the most useful innovations, from the web to instant messaging to internet telephony, emerged without developers needing anyone's permission to run their cool new code.
But under a permission-only legal regime, the Katrinalist.net volunteers would have had to contact every site with listing data and ask for authorization to use the information first. With dozens of sites popping up in the days following the storm, getting permission would have taken a lot of time -- if the site owners could even be reached and convinced of the merit of the idea in the first place.
On the internet, having to ask permission first can kill the creation of a useful new tool.
The law should treat the internet as open by default -- a public resource rather than a gated community. This doesn't mean that we can't protect our networked computers or data with copyright law, passwords, firewalls or perhaps even terms-of-service agreements. But rather than asking whether a user obtained permission to access computers connected to the internet, the law should ask whether the owner did anything to prevent public access.
In the absence of intellectual property protection or technological barriers to information access, courts and legislatures must allow free, unfettered use of data and machines that owners place online and leave publicly accessible.
It's an accident of technology that data published on the internet must be contained on computer servers. By giving owners too many rights to control whether and when the public accesses those servers, we will lose the very openness that makes the internet particularly cool. We'll also lose the rights that we already have in the real world, to comparison shop, to search, to collect information or even to help hurricane victims find each other.
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Jennifer Granick is executive director of the Stanford Law School Center for Internet and Society, and teaches the Cyberlaw Clinic.
