| I The Internet Trinity | II Foucault & Digital Libertarianism | III Safe Harbours and Unintended Consequences | IV Privatised Panopticons and Legalised Enclosures | V A Communications Sampler | Conclusion |
[T]he problems to which the theory of sovereignty were addressed
were in effect confined to the general mechanisms of power, to the way
in which its forms of existence at the higher level of society influenced
its exercise at the lowest levels.. In effect, the mode in which power
was exercised could be defined in its essentials in terms of the relationship
sovereign-subject. But ..we have the .. emergence or rather the invention
of a new mechanism of power possessed of a highly specific procedural techniques..
which is also, I believe, absolutely incompatible with the relations of
sovereignty...It is a type of power which is constantly exercised by means
of surveillance rather than in a discontinuous manner by means of a system
of levies or obligations distributed over time....It presupposes a tightly
knit grid of material coercions rather than the physical existence of a
sovereign... This non-sovereign power, which lies outside the form of sovereignty,
is disciplinary power...(2)
This is an essay about law in cyberspace. I focus on three interdependent
phenomena: a set of political and legal assumptions that I call the jurisprudence
of digital libertarianism, a separate but related set of beliefs about
the state's supposed inability to regulate the Internet, and a preference
for technological solutions to hard legal issues on-line. I make the familiar
criticism that digital libertarianism is inadequate because of its blindness
towards the effects of private power, and the less familiar claim that
digital libertarianism is also surprisingly blind to the state's own power
in cyberspace. In fact, I argue that the conceptual structure and jurisprudential
assumptions of digital libertarianism lead its practitioners to ignore
the ways in which the state can often use privatized enforcement and state-backed
technologies to evade some of the supposed practical (and constitutional)
restraints on the exercise of legal power over the Net. Finally, I argue
that technological solutions which provide the keys to the first two phenomena
are neither as neutral nor as benign as they are currently perceived to
be. Some of my illustrations will come from the current Administration
proposals for Internet copyright regulation, others from the Communications
Decency Act(3) and the cryptography debate.
In the process, I make opportunistic and unsystematic use of the late Michel
Foucault's work to criticise some the jurisprudential orthodoxy of the
Net.
For a long time, the Internet's enthusiasts have believed
that it would be largely immune from state regulation. It was not so much
that nation states would not want to regulate the Net, it was that they
would be unable to do so; forestalled by the technology of the medium,
the geographical distribution of its users and the nature of
its content. This tripartite immunity came to be a kind of Internet
Holy Trinity, faith in it was a condition of acceptance into the community.
Indeed the ideas I am about to discuss are so well known on the Net, that
they have actually acquired the highest status that a culture can confer;
they have become cliches.
This quote from John Gilmore,(4) one
of the Founders of the Electronic Frontier Foundation, has the twin advantages
of being pithy and technologically accurate. The Internet was originally
designed to survive a nuclear war; its distributed architecture and its
technique of packet switching were built around the problem of getting
messages delivered despite blockages, holes and malfunctions.(5)
Imagine the poor censor faced with such a system. There is no central exchange
to seize and hold; messages actively "seek out" alternative routes
so that even if one path is blocked another may open up. Here was the civil
libertarian's dream, a technology with comparatively low cost of
entry to speakers and listeners alike, technologically resistant to censorship,
yet politically and economically important enough that it cannot easily
be ignored. The Net offers obvious advantages to the countries, research
communities, cultures and companies that use it, but it is extemely hard
to control the amount and type of information available; access is like
a tap that only has two settings -- "off" and "full."
For governments, this has been seen as one of the biggest problems posed
by the Internet. For the Net's devotees, most of whom embrace some variety
of libertarianism, the Net's structural resistance to censorship -- or
any externally imposed selectivity -- is "not a bug but a feature."
To the technological obstacles the Net raises against externally imposed
content filtration, one must add the geographic obstacles raised by its
global extent; since a document can as easily be retrieved from a server
5,000 miles away as one five miles away, geographical proximity and content
availability are independent of each other. If the king's writ reaches
only as far as the king's sword, then much of the content on the Net might
be presumed to be free from the regulation of any particular sovereign.
The libertarian culture that dominates the Net at present posits that
state intervention into private action is only necessary to prevent "harms."
Seeing the Net as a "speech-dominated" realm of human activity
in which harm would be comparatively hard to inflict, libertarians have
been even more resistant to state regulation of the digital environment
than of, the disdainfully named, "meatspace." "Sticks and
stones can break my bones but bytes can never hurt me," or so goes
their assumption. Thus, the postulate that a global Net cannot be regulated
by national governments has been seen as an unequivocally positive thing.
John Perry Barlow's description of the First Amendment as a local
ordinance, offers the sobering reminder that it is not merely "bad"
state traditions, interventions and regulations that are enfeebled by cyberspace.
There is a difference between speech being constitutionally protected and
practically unregulable, indeed the latter situation may in some cases
undermine the former protection.
To a person interested in political theory, one of the most striking
things about the Net is the instability of the political cartography. We
divide our world up into contiguous and opposing territories -- public
and private, property and sovereignty, regulation and laissez-faire --
"solving" problems by inquiring as to their placement on this
map. In the everyday world these divisions seem comparatively solid and
lumpish to most people, even if clever academic critics may harp on their
theoretical indeterminacy. On the Net, things are different. Concepts
and political forces seem to be up for grabs. Nothing illustrates this
point better than the debate over intellectual property on-line. In the
digital environment, is intellectual property just property, the precondition
to an unregulated market, just another example of the rights that libertarians
believe the state was specifically created to protect? Or is intellectual
property actually public regulation, artificial rather than natural,
an invented monopoly imposed by a sovereign state, a distorting and liberty-reducing
intervention in an otherwise free domain?
While it would be hard to find anyone who believes entirely in either
of these two stereotypes, recognisable versions of both do exist in the
debate over intellectual property and -- more interestingly -- can be found
across the political spectrum. George Gilder of the conservative Manhattan
Institute, a fervent booster of capitalism and laissez faire, shows considerable
skepticism about intellectual property(7)
-- Peter Huber, from the same conservative think tank, pronounces it the
very acme of liberty, privacy and natural right.(8)
The Clinton Administration attempts to extend intellectual property rights
on-line(9) and is roundly criticised by
both civil liberties groups and right wing intellectuals.(10)
This isn't just a disagreement as to tactics among people who might be
said to share the same ideology: it is a fundamental set of disputes over
the very social construction and normative significance of a particular
phenomenon -- as if the Libertarian party couldn't agree on whether its
motto was to be "Taxation is theft" or "Property is theft."
Stewart Brand's phrase "information wants to be free" has
now penetrated the culture sufficiently deeply that it is now actually
parodied in advertisements. Yet its ubiquitous nature may work to
conceal the claims that it makes.
John Perry Barlow begins his famous essay "Selling Wine Without
Bottles: The Economy of Mind on the Global Net" with this quote from
Jefferson.
If nature has made any one thing less susceptible than all others of
exclusive property, it is the action of the thinking power called an idea,
which an individual may exclusively possess as long as he keeps it to himself;
but the moment it is divulged, it forces itself into the possession of
everyone, and the receiver cannot dispossess himself of it. Its peculiar
character, too, is that no one possesses the less, because every other
possesses the whole of it. He who receives an idea from me, receives instruction
himself without lessening mine; as he who lights his taper at mine, receives
light without darkening me. That ideas should freely spread from one to
another over the globe, for the moral and mutual instruction of man, and
improvement of his condition, seems to have been peculiarly and benevolently
designed by nature, when she made them, like fire, expansible over all
space, without lessening their density at any point, and like the air in
which we breathe, move, and have our physical being, incapable of confinement
or exclusive appropriation. Inventions then cannot, in nature, be a subject
of property.(11)
The quotation expresses perfectly the mixture of Enlightenment values
and upbeat public goods theory that typifies Net analysis of information
flows. Information is costless to copy, should be spread
widely, and cannot be confined. Beyond the Jeffersonian credo lies
a kind of Darwinian anthropomorphism. Information really does want
to be free. John Perry Barlow credits Brand's phrase with
recognizing both the natural desire of secrets to be told and the fact
that they might be capable of possessing something like a "desire"
in the first place. English biologist and philosopher Richard Dawkins proposed
the idea of "memes," self-replicating, patterns of information
which propagate themselves across the ecologies of mind, saying they were
like life forms. I believe they are life forms in every respect but a basis
in the carbon atom. They self-reproduce, they interact with their surroundings
and adapt to them, they mutate, they persist. Like any other life form
they evolve to fill the possibility spaces of their local environments,
which are, in this case the surrounding belief systems and cultures of
their hosts, namely, us. Indeed, the sociobiologists like Dawkins make
a plausible case that carbon-based life forms are information as well,
that, as the chicken is an egg's way of making another egg, the entire
biological spectacle is just the DNA molecule's means of copying out more
information strings exactly like itself.(12)
Viewed through this lens, the Net is the ultimate natural environment
for information and trying to regulate the Net is like trying to prohibit
evolution.
Taken together the three quotations assert that the technology of the
medium, the geographical distribution of its users and the nature of its
content all make the Net it specially resistant to state regulation. The
state is too big, too slow, too geographically and technically limited
to regulate a global citizenry's fleeting interactions over a mercurial
medium. Though I do not subscribe to the full-throated versions of any
of these slogans, I have sympathy with each of them. It does excite me
that the Net is highly resistant to externally imposed content filtration
-- though I tend to worry about structural private filters as well as command-based
public ones, and I recognise that speech and information can and will produce
harm as well as good. I do think that the global nature of the Net is --
by and large -- a positive thing, though we need to pay more attention
to things like the cost of the technology required to play the game, or
the effects on workers of a networked economy in which companies can relocate
around the world and find a new on-line workforce in an afternoon.(13)
Finally, I am optimistic about the historical conjunction of technologies
based on nearly costless copying and a political tradition that treats
information in a more egalitarian way than other resources.(14)
It is possible, of course, to conjure up a world in which rampant info-kleptocracy
undermines scientific and artistic development. I have argued elsewhere
that the main danger is not that information will be unduly free, but that
intellectual property rights will become so extensive that they will actually
stifle innovation, free speech and educational potential. In any event,
I want to set aside my agreement or disagreement with the values behind
the Net catechism, and focus instead on the factual and legal assumptions
on which it relies. My argument is that info-libertarians should not be
so quick to write off the state. In fact, I argue that the work of the
distinctively non-digital philosopher, Michel Foucault, provides some suggestive
insights into the ways in which power can be exercised on the Net and the
reasons why much contemporary analysis is so dismissive of the power of
law and the state.
| I The Internet Trinity | II Foucault & Digital Libertarianism | III Safe Harbours and Unintended Consequences | IV Privatised Panopticons and Legalised Enclosures | V A Communications Sampler | Conclusion |
1. Professor of Law, Washington College of Law, American University. My remarks at the conference dealt more specifically with the law and policy of proposed changes to copyright on the Internet. However, I have already outlined some of those views in print, and at some length. See James Boyle, Shamans, Software and Spleens: Law and the Construction of the Information Society at 136-39, 192-200 (Harvard University Press 1996), Intellectual Property Policy On-Line: A Young Person's Guide, 10 Harv. J.L. & Tech. 47 (1996), Sold Out, N.Y. Times, March 31st 1996, at E15, Overregulating the Internet?, Insight, January 15th, 1996, at 24, A Politics of Intellectual Property: Environmentalism for the Net, Duke L.J. (forthcoming). The editors of the Cincinnati Law Review were kind enough to allow me to address myself in this article to a slightly different issue, though one of profound importance to the symposium as a whole -- the extent to which state regulation of the Net is possible at all, and the costs and benefits of "technical solutions." In the course of that discussion, I use a number of examples drawn from the recent proposals on Internet copyright.
2. Michel Foucault, Two Lectures, in Michael Foucault, Power/Knowledge: Selected Interviews and Other Writings, 1972-1977, 78, 104 (Colin Gordon ed. & Colin Gordon et al. trans., 1980).
3. The Telecommunications Act of 1996, Pub. L. No. 104-104, tit. V, §§ 501- 61, 110 Stat. 56 (1996).
4. There are a variety of versions of the claim but the content is pretty consistent. See, e.g., John Perry Barlow, Passing the Buck on Porn (visited June 24, 1996) <http://www.eff.org/pub/Publications/John_Perry_Barlow/HTML/porn_and_responsibility.html> "The Internet, in the words of ... John Gilmore, 'deals with censorship as though it were a malfunction and routes around it.'" Judith Lewis, Why Johnny Can't Surf, LA Weekly, Feb. 21, 1997, at 43. "[I]t's not easy to push standards of decency on a network that, as ... John Gilmore put it (though even he can't remember where), treats censorship as damage and routes around it."
5. See generally, Todd Flaming, An Introduction to the Internet, 83 Ill. B.J., 311, (1995); Joshua Eddings, How the Internet Works 13 (1994); Bruce Sterling, Short History of the Internet (Feb. 1993), (available at <gopher:// gopher.isoc.org:70/00/Internet/history/short.history.of.Internet>).For background information on Internet legal issues, see generally Lawrence Lessig, The Zones Of Cyberspace, 48 Stan. L. Rev. 1403 (May 1996),The Path Of Cyberlaw 104 Yale L.J. 1743 (May 1995), David R. Johnson & David Post, Law And Borders--the Rise Of Law In Cyberspace 48 Stan. L. Rev. 1367 (May 1996). For a recent article dealing with some of the issues discussed here and arguing that individual network systems often can and should become the regulators, see David R. Johnson & David G. Post, And How Shall the Net Be Governed? A Meditation on the Relative Virtues of Decentralized, Emergent Law (visited June 24, 1997) <http://www.cli.org/emdraft.html>
6. John Perry Barlow, Leaving the Physical World (visited June 24, 1997) <http://www.eff.org/pub/Publications/John_Perry_Barlow/HTML/leaving_the_physical_world.html>(discussing the inapplicability of physical-world standards in Cyberspace).
7. One of the strongest statements of his position comes in the manifesto he co-authored with a number of other prominent members of the digerati. "Unlike the mass knowledge of the Second Wave -- public good knowledge that was useful to everyone because most people's information needs were standardized -- Third Wave customized knowledge is by nature a private good. If this analysis is correct, copyright and patent protection of knowledge (or at least many forms of it) may no longer be necessary. In fact, the marketplace may already be creating vehicles to compensate creators of customized knowledge outside the cumbersome copyright/ patent process, as suggested by John Perry Barlow." George Gilder, Esther Dyson, Jay Keyworth, Alvin Toffler, A Magna Carta for the Knowledge Age, 11 New Perspectives Quarterly 26 (1994) (emphasis added).
8. Huber, in fact, has taken a direct shot at the notion that "information wants to be free." See Peter Huber, Tangled Wires: The Intellectual Confusion and Hypocrisy of the Wired Crowd, Slate, Oct. 18, 1996 at <http://www.slate.com/Features/TangledWires/TangledWires.asp>. Huber labels the intellectual property rights skeptics as hypocrites whose real attitude is merely a desire for liberal redistribution of everyone else's stuff. His views are frankly dismissive; he is criticising a group of people, some of whom have argued in favour of maintaining the existing intellectual property rules in cyberspace and others of whom have argued that reliance on rules rather than technological innovation would actually inhibit the operation of capitalism online. Yet his description of this "Wired Crowd," many of whom make Ayn Rand sound like Vladimir Ilyich, is that their position is that of a hypocritical New Dealer -- "My property is mine; yours is for sharing." Id. Wired, we are supposed to believe, is the Economic and Philosophical Manuscripts in cyberspace. (Would that it were true! In fact, Wired's ideal of scathing social commentary is to claim that someone's computer is out of date.) Huber seeks to restore normative appeal to intellectual property by arguing that it "is just a commercial form of privacy law. Indeed for some, it's the only kind of privacy they still own." This powerful argument suffers a little from the example that follows. "Madonna can no longer stop you from gazing at her breasts. Copyright at least makes you pay for the pleasure." Id. Our sympathies are with her.. (and with him if this is the best illustration that comes to mind.) Stopping the world from gazing at her breasts has never seemed to be particularly high on Madonna's list of priorities -- at least as a matter of "privacy." True, Madonna might prefer a legal regime which would allow her to wring the maximum commercial advantage in every market for images of her and references to her -- for example by making people like Huber pay if they wished to use her as an example, restricting the fair use privilege, limiting news reporting and biography to authorized images and so on. Yet it is not clear why this desire, in itself, makes the notion of such a regime normatively compelling as a matter of social policy. There is also a danger in labelling critics of extensive intellectual property rights "anti-privacy." If there is a "privacy" interest consisting solely in the extraction of the maximum rent for one's intellectual property, then was the Justice Department's investigation of Microsoft's allegedly anti-competitive practices an attempt to cut down on Bill Gates' "privacy" interest in Windows 95? Or are we referring simply to spin-off effects in a particular case? Are Federal automobile emissions standards "anti-privacy"if they make it harder for me to leave the paparazzi in the dust? Intellectual property can be used to preserve privacy and I have used a stout and WASP-y pair of wingtips to hammer in a nail; this does not mean that the manufacturers of Birkenstock sandals are "anti-carpentry." There are indeed profound and interesting linkages and tensions between property and privacy, and this point has been made for some time. Compare Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 113 (1890). with Michael Madow, Private Ownership of Public Image: Popular Culture and Publicity Rights, 81 Cal. L. Rev. 127 (Jan. 1993). Yet, as these articles both show, intellectual property most definitely is not "just a commercial form of privacy law."
9. See generally Information Infrastructure Task Force, Intellectual Property and the National Information Infrastructure: The Report of the Working Group on Intellectual Property Rights (Sept. 1995)
10. See James Boyle, Intellectual Property Policy On-Line: A Young Person's Guide, 10 Harv. J.L. & Tech. 47, 52 (1996)
11. John Perry Barlow, Selling Wine Without Bottles: The Economy of Mind on the Global Net, Wired 2.03 (1993) at 86 (visited Jun. 24, 1997)
<http://www.eff.org/pub/Publications/John_Perry_Barlow/HTML/idea_economy_article.html> (quoting 13 The Writings of Thomas Jefferson 333-34 (Albert E. Bergh ed., 1907) (letter from Jefferson to Isaac McPherson, Aug. 13, 1813)).
12. John Perry Barlow, Selling Wine Without Bottles: The Economy of Mind on the Global Net, (visited Jun. 24, 1997)
<http://www.eff.org/pub/Publications/John_Perry_Barlow/HTML/idea_economy_article.html>
13. Global, lightspeed mobility of labour is not something that Adam Smith had contemplated; is it a quantitative or a qualitative distinction?
14. See James Boyle, Shamans, Software and Spleens: Law and the Construction of the Information Society at 182-83 (Harvard University Press 1996) "To someone like me, who believes a lot of our social ills come from the restriction of egalitarian norms, [the] fact [that our current ideas about information have strong egalitarian underpinnings] has an optimistic ring." See also Eugene Volokh, Cheap Speech and What It Will Do, 104 Yale L.J. 1805, 1847 (May 1995) "[T]he Supreme Court has based its jurisprudence on an idealized view of the world, a view that doesn't quite correspond to the world in which we live.... [T]his idealized world ... is much closer to the electronic media world of the future than it is to the print and broadcast media world of the present. If my predictions are right, the new technologies will make it much easier for all ideas, whether backed by the rich or the poor, to participate in the marketplace. ... [D]uring the print age, the Supreme Court created a First Amendment for the electronic age. The fictions the Court found necessary to embrace are turning, at least in part, into fact."
15. John Austin, The Province Of Jurisprudence Determined (H.L.A. Hart ed. 1954) See also James Boyle, Thomas Hobbes and the Invented Tradition of Positivism: Reflections on Language, Power, and Essentialism, 135 U. Pa. L. Rev. 383 (Jan. 1987).