Conclusion

Looked at in a vaguely Foucauldian light, the examples I have given in this Article seem to point to two conclusions, conclusions which may seem paradoxical. On the one hand, the studies indicate that the assumption that the state will not be able to regulate cyberspace is definitionally blind to some of the most important ways that some states could, in fact, exert power. The jurisprudence of digital libertarianism could use a lot less John Austin and a lot more Michel Foucault. But one cannot simply limit the analysis to the available avenues of state power. Discipline and Punish was not a manual for state officials, but a challenge -- in some ways similar to the challenges posed by legal realism and feminism -- to the very categories of public and private and to the belief that power begins and ends with the state.

If the first conclusion of this study is that the state may actually have more power than the digerati believe, the second conclusion is that the attractiveness of technical solutions stems not simply from the fact that they work, but that they apparently elide the question of power -- both private and public -- in the first place. The technology appears to be "just the way things are"; its origins are concealed, whether those origins lie in state-sponsored scheme or market-structured order, and its effects are obscured because it is hard to imagine the alternative. Above all, technical solutions are less contentious;⁽⁷²⁾ we think of a legal regime as coercing, and a technological regime as merely shaping -- or even actively facilitating -- our choices. In the Lochner era a strikingly similar contrast was drawn between the coercive nature of public law and the free private world of a market that was merely shaped by neutral, facilitative rules of contract and property. The legal realists did a remarkably good job of pointing out the shortcomings of that picture of the market. If we are to have some alternatives to the jurisprudence of digital libertarianism we will have to offer a richer picture of Internet politics than that of the coercive (but impotent) state and the neutral and facilitative technology.

72. See Lessig, Cyber Rights Now: Tyranny in the Infrastructure supra note 24.