The only cyberspace issue in the Jake Baker case involves persuading the authorities that there is no cyberspace issue.
As I say later in this issue, cyberspace requires very little new law. Most issues arising there can be resolved with resort to existing precedents. On most matters, the denizens of cyberspace should be treated exactly like anyone else, not worse, not better.
The Jake Baker case would be legally identical if Baker had distributed his stories as leaflets handed out on street corners or posted on a corkboard in the dormitory hallway. The fact that he distributed his material via a Usenet newsgroup does not change anything. If the material was legal offline, it is legal online; if it was illegal offline, it is, of course, illegal online as well. There is simply no cyberspace issue here.
(If the House agrees to the Communications Decency Act just passed by the Senate, ignore my previous statement; the law constitutes an endorsement of the idea that materials legal offline could be illegal online.)
Baker was charged under a law that prohibit the use of interstate communications to make a threat. Had he written a letter to his classmate Jane Doe, or sent an open letter to a newsgroup that he knew included her, there is little doubt that he would have fallen afoul of this law. Because he included Jane Doe as a character in one of a series of stories he posted to an alt.sex newsgroup--the rest of which apparently dealt only with fictional characters--and because it was not clearly foreseeable that the story would come to Ms. Doe's attention, it is hard to characterize this as a threat. As for the mail he exchanged with his Canadian correspondent, there appears to have been no overt act in connection with this conspiracy other than the email itself; therefore this appears to be a very weak case. From this point of view, the authorities may have acted prematurely; surveillance until the Canadian (who apparently used an alias and has not been identified) showed up might have resulted in a more solid case. But the Canadian may never have showed up, because, as we all know, there is a lot of talk, little action, on Usenet. Since the Oklahoma City bombing, there has been a lot of attention paid to calls for violence, and the exchange of bomb recipes, in Usenet newsgroups; if each of these were a crime, we could fill the prisons full of Internet users.
This is an important point. Federal threat laws are intended to protect individuals from harassment via mail and telephone calls. A threat issued, a la Gordon Liddy, against unspecified individuals probably does not qualify. Similarly, conspiracy laws require an overt act because Americans tend to sit around envisioning all kinds of crimes they have no intention of committing; there are not nearly enough prisons in America to lock up every citizen who ever, in a private conversation, called for the assassination of a politician he or she did not like. In both cases, the laws are designed to define the border between protected and unprotected speech. You have a first amendment right to say some very repulsive things; but you may not be able to say them standing in front of the house of your enemy, when your audience is holding Molotov cocktails in their hands.
Jake Baker may not have crossed this line. He certainly sailed very close to it, and if he sailed over it as far as his story was concerned, it can only be on the grounds that the story was intended as a threat against Ms. Doe. His mail to his Canadian friend is pretty specific about where and when to find victims--catch a woman in the bathroom on his hallway late at night, and carry her out of the dorm in a portable locker--but does not name anyone. Again, there is a lot of this kind of talk in this country and in the world, which does not result in any action and is never intended to. Elsewhere, I have written about (and since alluded many times to) gun advocates' statements envisioning the murder of Mrs. Brady of Handgun Control. I have labelled this despicable discourse and called for its condemnation, but I have never suggested that these individuals should be prosecuted either for threatening Mrs. Brady or for conspiring to harm her. Yet in both the statements that I quote, the spokesmen (one an NRA board member, the other a conservative talk show host) name Mrs. Brady and are quite specific about the manner in which she should be killed. There is, in fact, no legal or moral distinction between these statements and Jake Baker's story, and if these gun advocates were charged, doubtless they too would defend themselves on the grounds that they were just fantasizing.
Jake Baker is a sick puppy. Obviously, he finds fantasizing about rape, torture and murder to be richly rewarding, and enjoys discussing these fantasies with other people. His mail to his Canadian friend suggests that he was either quite serious, or at least half serious, about getting together to turn fantasy into action--perhaps if the two men had met, they would have worked each other up to it. Perhaps Baker would have worked himself up to it on his own, and perhaps he still will, despite this wake up call. But being a latent murderer is not a crime in this country, and neither should it be, because of the problems of proof and the fact (as I wrote in my Auschwitz essay last month), that in one sense we are all latent murderers. People are always shocked that the law punishes far more than it prevents, but there is no way to prevent the first murder by the incipiently murderous without rounding us all up and subjecting us to psychological testing, and then you will lock up many non-murderers as well.
I anticipate what Professor Catherine Mackinnon of the University of Michigan and many others would say to this. "Do you mean that a Jake Baker can walk around saying that he hates women, regards them as objects for his use, and plans to rape, torture and kill them, and nothing can be done until he actually kills someone?" This is not what I mean. You can expel Jake Baker from school (which he was) the same way that you would expel a racist or someone else who could not live by the University's code of ethics demanding the treatment of classmates with respect. You can ostracize Jake Baker, post his picture all over campus, warn people against him and educate the world (truthfully) about his predilections. You might even be able to obtain a civil protective order against him, keeping him away from the campus or out of town. But I do not think you can lock him up--unless you are willing to lock up Gordon Liddy, half the NRA board, hundreds of talk radio hosts and thousands of other Usenet posters as well. And that would still only be the tip of the iceberg.
There is one other set of issues here. Baker named a classmate in his story. Since then, the world has protected her by calling her Jane Doe. Professor Mackinnon, who counselled her, has talked to the world about the Baker case, but Jane Doe herself, as far as I know, has never spoken. With all respect to her right and desire to remain private, this again permits, even encourages, the curious phenomenon that the perpetrator is real but his victim is not. Anyone who has read the now widely distributed version of the story (with Ms. Doe's real name edited out) knows everything about Ms. Doe's appearance, and how Baker would expect her to react if tortured with a curling iron, and nothing about Ms. Doe. Her silence allows the very phenomenon that Mackinnon has identified and rails against in her writings (see Only Words , 1995): women are perceived an inferior class, objects who cooperate passively in the violence against them. Only by refusing to take refuge in silence and anonymity, by declaring their own reality and forcing the world to perceive them as people, do the victims of sexual violence refuse to be victims or to be perceived (as Mackinnon would put it) as sex and nothing else.