II

Foucault & the Jurisprudence of Digital Libertarianism

When Netizens think of law, they tend to conjure up a positivist, even Austinian image;⁽¹⁵⁾ law is a command backed by threats, issued by a sovereign who acknowledges no superior, directed to a geographically defined population which renders that sovereign habitual obedience.⁽¹⁶⁾ Thus they think of the state's laws as blunt instruments incapable of imposing their will on the global subjects of the Net and their evanescent and geographically unsituated transactions. Indeed, if there was ever a model of law designed to fail at regulating the Net, it is the Austinian model. Fortunately or unfortunately for the Net, however, the Austinian model is both crude and inaccurate, and that is where the work of the late Michel Foucault comes in.

Michel Foucault was one of the most interesting of post war French philosophers and social theorists. His work was wide-ranging, sometimes obscure,⁽¹⁷⁾ indeed deliberately so, and his historical generalisations would have been be insufferable if they were not so often provocatively useful.⁽¹⁸⁾ Above all, Foucault had the knack of posing problems in a new way -- re-orienting the inquiry in a way that was manifestly helpful for those who followed. This facility has been testified to by thinkers whose politics and methodology are very far from Foucault's own.⁽¹⁹⁾

From the point of view of this article, one of Foucault's most interesting contributions was to challenge a particular notion of power, power-as-sovereignty, and to juxtapose against it a vision of "surveillance" and of "discipline."⁽²⁰⁾ At the heart of this project was a belief that both our analyses of the operation of political power and our strategies for its restraint or limitation were inaccurate and misguided. In a series of essays and books, Foucault argued that, rather than the public and formal triangle of sovereign, citizen and right, we should focus on a series of subtler, private, informal and material forms of coercion organised around the concepts of "discipline" and "surveillance." The paradigm for the idea of surveillance was the Panopticon, Bentham's plan for a prison constructed in the shape of a wheel around the hub of an observing warden, who at any moment might have the prisoner under observation through a nineteenth century version of the closed circuit TV.⁽²¹⁾ Unsure of when authority might in fact be watching, the prisoner would strive always to conform his behaviour to its presumed desires; Bentham had struck upon a behavioralist equivalent of the superego, formed from uncertainty about when one was being observed by the powers that be. The echo of contemporary laments about the 'privacy-free state' is striking. To this Foucault added the notion of discipline -- crudely put, the multitudinous "private" methods of regulation of individual behaviour ranging from workplace time-and-motion efficiency directives to psychiatric evaluation.⁽²²⁾

Foucault pointed out the apparent conflict between a formal language of politics organised around relations between sovereign and citizen, expressed through rules backed by sanctions, and an actual experience of power being exercised through multitudinous non-state sources, often dependent on material or technological means of enforcement. Writing in a manner that managed to be simultaneously coy and sinister, Foucault suggested that there was something strange going on in the coexistence of these two systems.

Impossible to describe in the terminology of the theory of sovereignty from which it differs so radically, this disciplinary power ought by rights to have led to the disappearance of the grand juridical edifice created by that theory. But in reality, the theory of sovereignty has continued to exist not only as an ideology of right, but also to provide the organising principle of the legal codes.... Why has the theory of sovereignty persisted in this fashion..? For two reasons, I believe. On the one hand, it has been.. a permanent instrument of criticism of the monarchy and all the obstacles that can thwart the development of a disciplinary society. But at the same time, the theory of sovereignty, and the organisation of a legal code centered upon it, have allowed a system of right to be superimposed upon the mechanism[] of discipline in such a way as to conceal its actual procedures ....⁽²³⁾

Foucault was not writing about the Internet. He was not even writing about the twentieth century. But his words provide a good starting place from which to examine the catechism of Net inviolability. They are a good starting point precisely because, when viewed within the discourse of sovereignty, of the promulgation and enforcement of Austinian "commands backed by threats" aimed at a defined territory and population, the Net does indeed look almost invulnerable. Things look rather different when viewed from the perspective of "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 [and which]... presupposes a tightly knit grid of material coercions rather than the physical existence of a sovereign." What's more, there is a sense in which the "system of right [is] superimposed upon the mechanism[] of discipline in such a way as to conceal its actual procedures"; the jurisprudence of digital libertarianism is not simply inaccurate, it may actually obscure our understanding of what is going on. Thus even the digerati may find the analysis that follows of interest; if only to see how far the Net can be made to treat censorship as a feature not a bug, how far local ordinances may reach in cyberspace, and how information's 'desire for freedom' may be curbed.

The examples I will give are drawn from different areas of regulation of communications technology. Some of them deal explicitly with the Internet: the Communications Decency Act, the proposed NII Copyright Protection Act, the regulation of cryptography. Others are directed towards technologies outside of the Net, at least for the present: the V-chip, the Clipper chip, digital telephony and digital audio recorders. All of them share one thing -- the state has worked actively to embed or hardwire the legal regime in the technology itself.⁽²⁴⁾ In most of them, the exercise of power is much more a matter of the quotidian shaping and surveillance of activity than of imposing sanctions after the fact. Yet these examples also present revealing differences -- illustrating a range of goals, tactics and results. Sometimes technology has been mandated by legislation, sometimes facilitated through state-sanctioned standard-setting bodies. Sometimes the legislation defines technological safe-harbours to sanctions that would otherwise apply and sometimes the state uses the power of the purse to create a de facto standard by refusing to purchase any equipment that does not conform to the desired technical/legal standards. I will begin with the Communications Decency Act, turn to the use of strict liability and digital fences in internet copyright policy and conclude with a sampler of hardwired regulation, drawn from a number of areas of communications technology.

JUMP TO NEXT SECTION

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).

16. One of the reasons for this may be the overwhelmingly libertarian cast to Internet politics in the United States. Libertarians tend to concentrate on state power rather than private power, they tend to focus on the obvious restraints on freedom imposed by criminal law's impact against the citizen, rather than the subtler restraints imposed by the rules constituting and structuring market and other relationships. Both ideas 'fit' the Austinian image. By making a criminal statute the paradigm of the exercise of state power, and the citizen's right against the government the paradigm of its limitation, the libertarian codes his normative ideas about political problems and solutions into the very image of law itself.

17. "You will recall my work here, such as it has been ... None of it does more than mark time. Repetitive and disconnected, it advances nowhere. Since indeed it never ceases to say the same thing, it perhaps says nothing. It is tangled up into an indecipherable, disorganised muddle. In a nutshell, it is inconclusive. Still, I could claim that after all these were only trails to be followed, it mattered little where they led; indeed, it was important that they did not have a predetermined starting point and destination. They were merely lines laid down for you to pursue or to divert elsewhere, or re-design as the case might be. They are, in the final analysis, just fragments, and it is up to you or me to see what we can make of them. For my part, it has struck me that I might have seemed a bit like a whale that leaps to the surface of the water disturbing it momentarily with a tiny jet of spray and lets it be believed, or pretends to believe, or wants to believe, or himself does in fact believe, that down in the depths where no one sees him any more, where he is no longer witnessed nor controlled by anyone, he follows a more profound, coherent and reasoned trajectory. Well, anyway, that was more or less how I at least conceived the situation; it could be that you perceived it differently." Michel Foucault, Two Lectures, in Michael Foucault, Power/Knowledge: Selected Interviews and Other Writings, 1972-1977, 78-79 (Colin Gordon ed. & Colin Gordon et al. trans., 1980).

18. What Is an Author?, in Textual Strategies: Perspectives In Post-Structuralist Criticism 141 (Josue V. Harari ed., 1979), Discipline and Punish: The Birth of the Prison (Alan Sheridan ed. & trans., 1979)

19. See, e.g., Richard Posner, Sex and Reason at 23, 182 (Harv. Univ. Press 1992) (describing Foucault's writings on sexuality as "remarkable" and "eloquent").

20. Michel Foucault, Discipline and Punish: The Birth of the Prison (Alan Sheridan ed. & trans., 1979)

21. Janet Semple, Bentham's Prison: A Study of the Panopticon Penitentiary (1993); The two writers to have used Foucault's ideas most notably in the legal privacy and cyberspace context are J.M. Balkin, What is a Postmodern Constitutionalism? 90 Mich. L. Rev. 1966, 1987 (1992) and Larry Lessig, Reading the Constitution in Cyberspace, 45 Emory L. J. 869, 895 (Summer 1996) (citing Michel Foucault, Discipline and Punish: The Birth of the Prison at 139-40 (Alan Sheridan ed. & trans., 1979)).

22. In many ways, Foucault himself was most interested in a portion of this analysis that I shall pursue here only episodically. In a series of works on the treatment of insanity and on penology he argued that the emergence of the academic and intellectual "disciplines" as we know them now is reciprocally linked in important ways to this minute and quotidian regulation of behaviour. At the same time, retrofitting some of his earlier work on the human sciences into this new theoretical mold, he suggested that our conception of "an individual" was not some naturally occurring fact of nature from which analyses could begin, but instead, in part, a result of the concatenation of discipline and surveillance. Elsewhere I have explored the connections between power and knowledge (James Boyle, The Politics of Reason: Critical Legal Theory and Local Social Thought, 133 U. Pa. L. Rev. 685 (April 1995)), and the effects of the construction of subjectivity (James Boyle, Is Subjectivity Possible? The Postmodern Subject in Legal Theory, 62 U. Co. L. Rev. 489 (1991)). While there are interesting things to be said about the construction of subjectivity in cyberspace, my goal here is more mundane.

23. Michel Foucault, Two Lectures, in Michael Foucault, Power/Knowledge: Selected Interviews and Other Writings, 1972-1977, 78, 105 (Colin Gordon ed. & Colin Gordon et al. trans., 1980).

24. The best, and often the only, chronicler of the role of hard and softwired regimes is Lawrence Lessig. "I don't take issue with the values inherent in any one particular system of code. My criticism is directed against those who think about cyber regulation solely in terms of "law." Laws affect the pace of technologicalchange, but the strictures of software can do even more to curtail freedom. In the long run, the shackles built by programmers may well constrain us most." Cyber Rights Now: Tyranny in the Infrastructure Wired 5:07 (June 1997) http://wwww.wired.com/wired/5.07/crn/index.html See also Lawrence Lessig, The Zones of Cyberspace 48 Stan. L. Rev. 1403, 1408. " In the well implemented system, there is no civil disobedience. Law as code is a start to the perfect technology of justice."