Professor helps decode mysteries of cyberspace law

By Sheila Pursglove

Legal News

Jonathan Weinberg, a professor at Wayne State University Law School, has had a long fascination with cyberspace--and has been an Internet policy wonk for almost two decades, from the days when spam was still luncheon meat.

So it's no surprise to find "The Law in Cyberspace" listed among his classes.

"We've got a very strong core of people working in the area of cyberspace law--not only me, but also Assistant Professor Aaron Perzanowski, a terrific, brilliant young scholar specializing in this field, and Associate Dean John Rothchild, who's written important scholarship in the area," Weinberg says. "There's no other area law school--not even the University of Michigan--that can match that collective expertise."

A native of the New York City area, Weinberg attended Lawrence High School on Long Island before majoring in government at Harvard.

"I got to law school pretty much by default," he says. "I didn't much know what I wanted to do with my life, and it seemed to me that I would be pretty good at the sort of thinking that was involved in legal analysis."

He earned his law degree from Columbia Law School, where he enjoyed spending time with, and learning from, talented and interesting classmates.

"One of those classmates, Don Verrilli, was recently nominated to be solicitor general of the U.S.; another one, Jessica Litman, now a law professor at Michigan, married me--we're about to celebrate our 24th wedding anniversary.

"And I still take inspiration in my own teaching from some of the teachers I had back then."

Weinberg was a judicial law clerk, for Ruth Bader Ginsburg--then a federal appeals court judge--and U.S. Supreme Court Justice Thurgood Marshall.

"Each of them is an American hero," he says. "Clerking for Marshall, I remember staying at the office late at night, waiting for the paperwork to arrive from a condemned prisoner seeking a stay of execution: that was back in a historical era when such stays were more often granted than they are today."

Weinberg spent a year at the University of Tokyo, researching Japanese communications law, and living in a small apartment in a neighborhood called Oji, in the northern part of Tokyo.

"With the help of university colleague Junichi Hamada, I was able to do significant fieldwork, examining the Japanese broadcast license award process by interviewing participants, to learn how that process really worked on the ground.

"I suppose I'm still the world's leading expert outside Japan on 'Japanese Communications Law of the Late 1980s'--there isn't a lot of market for that, though."

Weinberg has made frequent return visits to Japan.

"I love Tokyo, especially its 'shitamachi' older neighborhoods, and it was a wonderful gift to be able to live there for a year."

Returning stateside, Weinberg spent a couple of years practicing law back in the U.S., mostly representing railroads, before deciding to teach law.

"It seemed to me that I wanted a job where I could figure out what legal positions I thought were good and stand up for those, instead of standing up for the positions that happened to coincide with my clients' needs." he says.

Weinberg joined the WSU law faculty in 1988, where one of his fields was Communications Law.

"The Internet as we know it today didn't exist back then, and few people had heard of it outside of university computing labs," he says. "So when I taught a communications-law-oriented seminar in 1989, I called it 'Radio and TV Regulation'--because those were the high-tech communications media of the day."

Weinberg started exploring the Internet towards the end of 1993--learning how to operate in a Unix computing environment, running programs with names like "Archie" and "Gopher" and "Lynx."

"It seemed plain to me that this was the future of communications, and that if I cared about communications law, I should be paying attention to the Internet," he says. "It's still a fascinating area of law and a fascinating area of human endeavor.

"I've been trying recently to focus some of my writing in other directions, because there's other interesting stuff I'd like to write about, but that's hard because worthwhile issues keep emerging in the Internet-law areas I'm closest to."

Weinberg, who spent a year litigating cases at the Justice Department in 1993-94, also spent a year at the Federal Communications Commission in 1997-98, working in a "think tank" called the Office of Plans and Policy, run by the legendary Bob Pepper. He learned a tremendous amount that year about telecommunications law as it related to Internet concerns, and was involved in the creation of ICANN--the Internet Corporation for Assigned Names and Numbers, which has responsibility for the domain name system and some related matters.

"That was an extraordinary time to be working for the U.S. government, because the government was waking up to the fact that it needed to have policy positions on Internet-related matters, but there were very few people in the government at the time who actually knew anything about the Internet--so if you were in the government and you knew anything at all about Internet policy, you could be quickly catapulted to the center of decision-making on important matters," he says.

ICANN got under way in 1998, and Weinberg continued participating in its processes after he returned to WSU.

One of ICANN's key tasks at the outset was setting up a process to increase the number of "top level domains" like COM, NET, and ORG.

"There was a great deal of dissension, though, about how the domain name space should be expanded and indeed whether it should be expanded at all," he says. "Some powerful actors, most notably the holders of valuable trademarks, worried that adding new top level domains wouldn't be in their interests."

ICANN--modeled in part on the Internet Engineering Task Force (IETF) that established protocols and standards and used working groups to figure out problems--set up its own "working group."

"I joined ICANN's working group on new top-level domains, and the membership had enough respect for my positions to elect me chair," Weinberg says. "My job involved brokering a compromise between those who wanted ICANN to throw open the floodgates to an essentially unlimited number of new top level domains, and those who wanted to shut down the process and add none at all.

"Riding herd on such a diverse and contentious group, and steering it to a conclusion, was a lot of work and called for a certain amount of backstage negotiation. But we were successful in reaching a reasonable conclusion. Doing that, and presenting our recommendation to the ICANN Board at its meeting that year in Cairo, was one of the highlights of my professional career.

"And I'm pleased to say that the ICANN Board is poised this year to adopt a much more fundamental change in its procedures reshaping the name space."

Weinberg also teaches Administrative Law, Constitutional Law I, Constitutional Law II, Immigration Law, and The Regulatory State.

"The thing that I like best about Wayne Law is our amazing student body--committed, intellectually curious, hard-working, both interested and interesting," he says. "I try to pass on such wisdom as I have to share."

Published: Mon, May 30, 2011