California Law Review
Copyright (c) California Law Review 1999
March 2000; 88 Calif. L. Rev. 395
Cyberspace Self-Governance: A Skeptical View
from Liberal Democratic Theory
Neil Weinstock Netanel
[Arnold, White & Durkee Centennial Professor of Law, University
of Texas School of Law]
Please send comments to: email@example.com.
My thanks to the following persons, whose comments on earlier drafts of this
Article and related subject matter greatly contributed to its development:
Lynn Baker, Niva Elkin-Koren, Mark Lemley, Eben Moglen, David Post, Ilan
Saban, Eli Salzberger, Paul Schwartz, Steve Ratner, Charlie Silver, Eugene
Volokh, and Jonathan Weinberg. My thanks also to Alisa Ullian for her research
assistance, and to participants at the University of Haifa and Hebrew University
law faculty colloquia and the Tel-Aviv University Faculty of Law Conference
on Law, Technology, and Information, at which I presented parts of this Article.
* * * * *
II. The Cyberian Claim of Liberal Perfection
Cyberspace offers numerous arenas for potential self-governance.
n44 At the most local level, these include a multitude of discussion groups
and sites for ongoing virtual interaction. Virtual fora such as email listservs,
Usenet newsgroups, chat rooms, and multiuser games are built upon varied
rule structures. n45 Some local rules reflect considerable participant
input, although group moderators autocractically determine most local rules.
At [*411] what might be termed the "regional level," many virtual
fora are organized within networks such as the WELL, n46 the Usenet,
and the multiple discussion groups sponsored by America Online, CompuServe,
and other Internet service providers. n47 Virtual networks also comprise
groupings of sites, such as the World Wide Web, devoted more to relaying
information than to participant interaction. Like virtual fora, virtual networks
constitute - and are constituted by - formal and informal rules that reflect
varying degrees of participant input. Finally, cyberspace might be seen as
a single, global unit of governance. In this view, cyberspace as a whole
is "ruled" by technical protocols governing internetwork communication and
by the numerous individual choices among alternative fora and networks, choices
that favor certain matrices of local and regional rule regimes and disfavor
But in parallel with such nascent self-governance, countless cyberspace transactions
and local norms parallel the sort of offline activities that have given rise
to state regulation. Some of these concern the sale of expressive content
or services, such as web sites that sell pornography or Internet gambling.
Others involve the unauthorized use of intellectual property, whether copyrighted
expression or trademark. Still others touch upon what are often seen as fundamental
political or autonomy interests. These include the exclusion of certain viewpoints
from online discussion groups or entire networks; similar discrimination
based on the would-be speaker's race, gender, or other status; the collection
of personal information gleaned from Internet users' web site visits; and
unsolicited email advertising.
Cyberians argue that the state, as a general rule, should refrain from regulating
such behavior, even when regulation of parallel offline activity might be
warranted. A political fount of this claim is that cyberspace offers unique
possibilities for private ordering that more fully embody the democratic
liberal ideals of individual liberty and government by the consent of the
governed than does the representative democracy of territorial nation-states.
Territorial representative government, cyberians assert, is a fundamentally
flawed second-best alternative, necessitated by the collective action, information,
transaction, and mobility costs that make more democratic structures impractical.
But within cyberspace such costs are drastically reduced. Accordingly, those
engaging in online communication should receive considerable leeway to govern
themselves, or at least to govern their online activity, from the "bottom-up"
as it were. In this view, [*412] cyberspace self-governance centers
political decision making in the individuals whose lives those decisions
affect, rather than in representatives who can only approximate their constituents'
preferences and choices.
The cyberian claim of political superiority presents three overlap-ping,
but also somewhat contradictory, approaches to cyberspace self-governance.
These include cyberpopulism, which views the Internet as a vehicle for electronic
direct democracy; cybersyndicalism, which focuses on the generation of social
norms by virtual communities as an alternative to state-centered law making;
and cyberanarchism, which sees cyberspace as the epitome of Hayekian spontaneous
order, a regime "governed" by the constant, variable interaction of a multitude
of individual decisions rather than by norms enunciated and enforced by an
overarching state or quasi-state. Each approach claims to achieve the radical
disintermediation that cyberians insist is necessary to fulfill liberal ideals.
In this Part, I will further explicate the three approaches. I will also
call into question their basic assumptions.
1. The Cyberpopulist Claim
Cyberpopulists see in cyberspace the possibility for direct voting and citizen
deliberation, a virtual equivalent of the much idealized New England town
meeting. Cyberpopulism differs in important ways from the rest of the cyberian
claim of liberal perfection. In both aspiration and theoretical grounding,
it is considerably more intertwined with offline liberal democratic institutions
than are cybersyndicalism and cyberanarchy. First, cyberpopulists see Internet
voting not only as a basis for cyberspace governance but also as a direct
challenge to territorial representative democracy. n48 For cyberpopulists,
citizen voting on a continuous stream of Internet [*413] initiatives
- what Andrew Shapiro disparagingly labels "push-button politics"
n49 - can supplement or even replace parole boards, administrative agencies,
and legislatures. n50
In addition, unlike its cybersyndicalist and cyberanarchist counterparts,
cyberpopulism begins with the democracy side of the liberal democracy equation.
It initially proffers direct majoritarian democracy as the solution to representative
democracy's purported failure to support liberal democratic principles.
n51 For cyberpopulists and real world populists alike, the plebiscite represents
a purer form of democracy than legislation enacted by bodies of periodically
elected representatives. In the cyberpopulist vision, the liberal ideal of
government by the consent of the governed is most fully realized when the
governed govern themselves. The people are truly sovereign only when they
deliberate on the issues that affect them and determine the outcome by consensus
or majority vote.
In this view, representative government suffers from two basic deficiencies.
The first is agency costs. n52 By accident, inefficiency, or design,
representatives do not always reflect the views of their constituents. So-called
representatives, populists contend, too readily become entrenched political
elites, with interests inconsistent with those who have elected them.
n53 Moreover, even if elected officials could put self-interest aside, their
best efforts to represent their constituents would still be beset by difficulties
in determining what voters want and in accurately translating popular will
into legislation. As a result of these information and communication costs,
populists contend, mediated government will systematically garble the voice
of the people, yielding a significant democratic deficit.
[*414] The second deficiency that populists claim afflicts representative
government is even more fundamental. It concerns the conceptual tension between
popular sovereignty and rule by elected officials. If the people are truly
sovereign, then elected officials must serve as agents of the people. But
in representative democracy, elected officials, not the people, have supreme
law-making power. For populists, elected officials cannot possess that power
and still meaningfully be considered as mere agents of the people.
n54 By both definition and consequence, therefore, representative government
belies popular sovereignty.
Given its purported deficiencies, representative government is, for populists,
at best a second-rate democracy. Yet populists have traditionally recognized
that rule by elected officials is a necessary evil in any territory larger
than a very small town. n55 In municipalities, states, and nation-states,
citizens can neither meet face-to-face nor keep abreast of the many complex
issues facing the polity. In real space, therefore, the populist impulse
has been limited to seeking to diminish agency costs, through measures such
as term limits, and introducing inklings of direct democracy, including single-issue
popular initiatives, into what essentially remains a representative government.
For cyberpopulists, on the other hand, the Internet presents new possibilities
for a greatly expanded role for direct democracy, both within cyberspace
and without. In this vision, cyberspace is free of the geographical and informational
obstacles that prevent rule by plebiscite in real space. n56 The Internet
enables deliberation among large numbers of geographically dispersed users.
Such deliberation is akin to a virtual town hall meeting, but better. In
cyberspace, cyberpopulists argue, "everyone has a chance to speak, no one
is shouted down, and people have time to develop and explain their ideas."
n57 The Internet also makes possible the exchange of information and
opinion at a fraction of the cost of real space media. Cyberpopulists assert
that as a result, Internet users are able to gain a far more informed understanding
of a far greater number of issues than are their poor cousins in real space.
2. Critique of the Cyberpopulist Claim
The cyberpopulist claim is vulnerable on three broad grounds. The first
involves the populist characterization of liberal democratic ideals. Contrary
to the cyberpopulist claim, traditional conceptions of liberal democracy
do not equate the consent of the governed with government that effectuates
the popular will. The second ground goes to the question of outcome. Even
assuming that popular will is the correct measure of liberal democratic rule,
it is by no means clear that the plebiscite reflects the popular will more
faithfully than does representative government. The third concerns the problem
of majority tyranny. Cyberpopulism fails to provide a workable mechanism
for protecting the liberties of minorities and dissenters. And in attempting
to remedy this failing, cyberpopulism moves towards an equally unworkable
neoliberal regime of unanimous consent and dissenter exit.
a. The Populist Mischaracterization
Cyberpopulists incorrectly equate the liberal democratic principle of government
by consent of the governed with government by popular will. The traditional
liberal conception of popular sovereignty is of self-rule reflected in and
filtered through "an empire of laws, not of men." n58 In that view,
both individual liberty and collective self-rule require constraints on the
ability of temporal majorities to effect their will. n59 They require
a system of balanced government, like that embodied in the constitutional
structure of the United States, replete with counter-majoritarian measures
designed to curb the unhindered, arbitrary exercise of power. n60
By the same token, "government by consent of the governed" does not mean
that "the people," whether individually or collectively, must actively consent
to each government decision. Even the contractarian strand within the liberal
tradition views consent in decidedly formal terms, far removed from actual
consent. n61 For Locke, Hobbes, and Rawls, the [*416]
consent of the governed denotes a metaphoric agreement to the establishment
of civil government, a logical premise for the move from the proverbial state
of nature and a heuristic for elucidating the type of government upon which
all might be deemed to agree. n62 Its continuing import in the age
of civil government relates, at most, to the broad constitutional legitimacy
of representative government. n63 It is not meant to be a recipe for
daily governmental decision making. n64
Nor does "government by the consent of the governed" contemplate that elected
officials act as mere agents for the majority that elected them. Popular
sovereignty, rather, lies more in the permanent possibility, enjoyed by the
people individually and collectively, of evaluating and contesting what the
government decides. n65 "Consent" is presumed by a legislative process
in which public decision making must survive public scrutiny. Legislation
must be defensible by "public reason," by justifications that proponents
may "reasonably think that other citizens might also reasonably accept."
n66 Citizens, in turn, must have access to effective fora for debate,
including the periodic opportunity to "throw the rascals out" in the event
that elected officials stray too far from popular sentiment. n67 But,
again, this does not mean that citizens must dictate every government decision.
Rather, as William Riker has provocatively, but not implausibly, asserted:
"Liberal democracy is simply the veto by which it is sometimes possible to
restrain official tyranny." n68
b. Popular Will
In distinguishing liberalism from populism, I do not mean to overstate the
case: There is a real tension between popular sovereignty and representative
government within the liberal tradition, and many readings of [*417]
liberal democracy do insist on a place for popular will far beyond a simple
veto. n69 Moreover, cyberpopulists need not cling to traditional limitations
of liberal democracy. They might, and sometimes do, claim that those limitations
reflect technological, not ideological, constraints. n70 In this view,
traditional liberalism has presented a metaphoric account of the "consent
of the governed" only because predigital technology did not make possible
a concrete realization of that ideal. In the age of global, low-cost digital
communication, however, there is no longer any reason to divorce popular
sovereignty from the direct, daily effectuation of the people's will. If
Locke were alive today, this argument runs, he would be a cyberpopulist.
But the cyberpopulist claim fails even to the extent that effectuating the
popular will is seen as a genuine and desirable liberal goal. The reason
for that failure is two-fold. First, cyberpopulists overestimate the extent
to which the plebiscite, whether territorial or virtual, can truly reflect
the voice of the people. Second, they ignore significant democracy-enhancing
benefits of representative government.
i. Plebiscites Inadequately Reflect Popular Will
Popular referenda and initiatives have been the subject of extensive scholarly
criticism. n71 In practice the plebiscite falls far short of the populist
ideal. Uneven voter turnout, ambiguous or misleading drafting of ballot issues,
the influence of moneyed special interests, voter ignorance of the issues,
and other factors regularly obscure popular input. n72
More fundamentally, and perhaps more controversially, the populist romance
with the plebiscite wrongly equates popular will with an [*418]
aggregation of existing preferences. A contrary, arguably more plausible
view sees popular will as endogenous to the political process. "What the
people want" is determinable only through a deliberative process, such as
that in a "face-to-face, press-covered legislative assembly," in which positions
are openly and critically tested by public reason. n73 In this view,
it is the "considered will of the people," rather than "transient popular
preference," n74 that is the proper standard for democratic fidelity--and,
arguably, representative government better meets this standard than rule
by plebiscite. n75
Cyberspace might provide greater possibilities for bottom-up deliberation
than do the obscenely expensive spot-advertising media campaigns increasingly
associated with territorial initiatives. n76 But especially as elaborate
and costly content production gain an increasing hold on the Internet,
n77 cyberplebiscites are likely to be afflicted with the same flaws as their
territorial counterparts. Already, commentators have labeled much touted
electronic town meetings as "electronic town manipulation," given the distorted
nature of information presented and partial framing of ballot [*419]
issues. n78 Moreover, given cyberspace's global reach and the difficulty
of authenticating the identity of Internet voters, online voting may well
be subject to levels of vote buying and voter fraud that make Tammany Hall
look like the League of Women Voters. n79 Finally, even aside from
the problems of vote manipulation and irregularity, one suspects that Internet
voters would generally engage in less, not more, careful deliberation than
their offline counterparts. Internet voters facing a daily stream of virtual
initiatives would have little time to consider each issue. And the very ease
of Internet voting is likely further to militate against deliberation. Supporters
of real-world plebiscites argue that voters who must invest the time physically
to go to the polls are inclined as a result to consider carefully the issues
on which they plan to vote. n80 Internet users voting from home or
at work with a click of the mouse would lack that incentive.
ii. Representative Government May Better Reflect Popular Will
Even assuming that liberal government should reflect aggregate voter preferences,
representative government may more fully realize that populist vision than
does direct democracy. Single-issue initiatives, such as whether to permit
the creation of a neo-Nazi newsgroup or whether to prohibit Internet spam,
lack a mechanism for reflecting voter priorities among issues. n81
In contrast, an open-ended and rolling legislative agenda enables voters
with intense preferences regarding a given issue to bargain for support of
their position by conceding issues in which they have less at stake. Through
such legislative "logrolling," representative government provides a means
for citizens not only to express their preferences on issues (albeit through
their elected representatives), but also to express their judgments on the
relative importance of those issues. n82 In that sense, representative
government can be more reflective of the popular will than is rule by
[*420] plebiscite. n83 Indeed, when plebiscites appropriate
issues from the legislative arena, they diminish logrolling opportunities,
thus hindering the expression of voter priorities. n84
Of course, direct democracy need not necessarily be a single-issue plebiscite,
and an ongoing multiple-issue direct democracy could conceivably obtain the
same or better intensity-measuring benefits as representative government.
Logrolling can take place in any setting with an ongoing rule-making agenda,
a multiplicity and diversity of issues, open voting, and a mechanism for
deliberation and bargaining on votes. But given citizens' limited time and
ability to process information, such complex, full-fledged direct democracy
is exceedingly rare.
Cyberpopulists might contend that cyberspace overcomes such barriers, making
possible a more complex direct democracy. Granted, the Internet makes a plentitude
of information available relatively cheaply and provides an inexpensive means
by which citizens can communicate their opinions, priorities, and bargaining
positions regarding virtual plebiscites. n85 But those cost reductions
are insufficient to yield meaningful possibilities for complex virtual democracy.
Cyberspace does not materially increase citizens' available time and innate
ability to digest information regarding multiple complex issues. n86
Indeed, citizens who are awash in cheap information, most of it unfiltered
by trusted intermediaries, may face considerable difficulties in evaluating
the accuracy of Internet content and even in assessing the relative import
of purported issues. n87 Inexpensive communication for the exchange
of opinions and bargaining positions will not make up for this deficit.
[*421] Finally, voting for representatives enables citizens to express
their broad opinions as opposed to merely their issue-specific preferences.
n88 In part because of the complexities of modern economic and social
life and the difficulty of processing information regarding numerous issues,
citizens often do not have a preference one way or another on many given
issues. n89 What citizens do have are opinions, a broad political
and social outlook, and view of leadership. n90 To the extent that
political candidates and parties can be identified with such opinions, voting
for representatives may thus reflect "what people want" more than would popular
input on specific issues. n91
c. Tyranny of the Majority
Majority rule by plebiscite may significantly shortchange the liberal democratic
ideal of individual liberty. As critics of popular initiatives emphasize,
untrammeled majorities can ride roughshod over dissenting individuals and
minorities. n92 For that reason, liberal democracy places significant
limits on what sheer force of dominant political will may obtain. A regime
of rule by online plebiscite n93 would lack such familiar majority-checking
devices as constitutional liberties, both substantive and procedural; a balance
of power among governing institutions; and an institutional and political
requirement that officials' decisions be publicly defensible. n94
Likewise, at least as narrowly conceived on an issue-by-issue basis, rule
by popular majority belies the literalist, cyberian understanding of government
by consent of the governed. The losing minority in any given vote has not
in fact consented to the decision it has opposed. Anything less than unanimous
consent on each discrete issue suffers from an inherent [*422]
consensual governance deficit, at least in the sense that the polity's decision
does not reflect the will of the losing minority.
Individuals might consent ex ante to what they conceive to be fair decision-making
procedures, such as a majority vote to determine the outcome on any given
issue. But to call this rule by consent requires considerable abstraction
from the notion of actual universal consent to each discrete decision. It
requires a belief that consent to process is tantamount to ongoing consent
to outcome. In practice it also requires the consistent application of procedures
and decisions that are continually perceived to be fair, and that protect
dissenters' ability to influence future votes. Such measures would have to
include institutional differentiation and substantive and procedural rights
that protect temporal minorities against overbearing temporal majorities.
In this abstract sense, rule by consent looks as much or more like representative,
constitutional democracy than rule by plebiscite.
Cyberpopulists might proffer two solutions to the twin problems of majority
tyranny and defeated minorities. The first is that cyberspace makes possible
a regime of unanimous consent, thereby eliminating the problem of defeated
minorities. n95 The second, which would apply only to online, not
real space, communities, is that, even absent consent, cyberspace offers
dissenters easy exit from fora that are not to their liking. n96
i. Unanimous Consent
Building on early work by Knut Wicksell and Erik Lindhal, n97 public
choice theorists argue that, given certain assumptions, a unanimity rule
of collective choice is more equitable (that is, Pareto efficient) than majority
rule. n98 Unanimity rules effectively transform collective decision
making into a neoliberal regime of individual exchange. Under a unanimity
rule, no policy can be adopted if anyone votes against it. Thus, no decision
[*423] imposes on any person the will of any other person and every
decision reflects universal consent. Unanimity may be obtained, at least
in theory, by fashioning rules that are acceptable to all, achieving consensus
through deliberation and compromise, or buying dissenters' votes by compensating
them for their loss.
As proponents of offline universal consent have readily conceded, however,
unanimity rules face daunting obstacles in practice. Information and negotiating
costs make it impossible to achieve unanimous agreement in many cases.
n99 Unanimity rules are also "famously susceptible to holdout problems and
abuse by fanatics." n100 Opportunistic bargainers may either extract
rents for their consent or simply thwart a decision altogether. As a result,
public choice theorists generally limit their proposed application of unanimity
rules to narrow circumstances in which the benefits of agreement are substantial
and the costs of reaching consensus (including paying subsidies to dissidents)
are relatively low. n101 Alternatively, theorists assert, unanimity
might be an effective rule-making regime in small, homogenous groups where
voters publicly cast their votes and are involved in ongoing interaction,
and thus have strong disincentives to engage in strategic bargaining.
Following the cyberian emphasis on consensual decision making, n103
cyberpopulists might posit that cyberspace creates unique opportunities for
implementing unanimous rule-making regimes. In cyberspace, some commentators
contend, collective decisions are cheaper to reach than in the offline world
because of substantially lower information, negotiation, and communication
costs. n104 Armed with ready access to a wealth of information and
to worldwide digital communication networks, "netizens" (citizens of the
Internet) avoid the collective decision-making barriers that plague their
poor offline cousins. As a result, it has been argued, cyberspace enables
a shift in "the decision-making rule from simple majority [*424]
towards unanimity." n105 Through informed and inexpensive negotiation,
Internet users can reach unanimous - or near-unanimous - agreement about
such issues as which proposed Usenet newsgroups to admit, how to resolve
conflicting claims to Internet domain names, and whether to allow web sites
to collect information about visitors' web surfing habits. To the extent
the unanimity rule is realized, cyberspace rule making comes to embody the
consensual basis for collective decision said by cyberians to underlie the
liberal theory of the state.
To my mind, however, Internet communication lacks the capacity to overcome
real-space barriers to consensual decision making. For one, while cyberspace
contains a plentitude of cheap information, inherent human limitations in
sorting and processing that information effectively lead to many of the same
information costs and distortions that afflict real world decision making.
The same is true of negotiation costs. While digital networks can dramatically
reduce the cost of communicating bargaining positions, such communication
is, of course, only one component of reaching agreement. No less crucial
to negotiation are deliberation, assessment, consideration of alternatives,
identifying possible partners and problems, and drafting position papers.
Each of these requires a significant amount of offline human thought, time,
and effort. n106
In addition, even assuming a meaningful reduction in information and negotiation
costs, it is strategic behavior, not such costs, that poses the most significant
obstacle to unanimity rules; and there is nothing about cyberspace rule making
per se that reduces incentives for strategic behavior. "Netizens" whose votes
are necessary to adopt proposed policy are no less likely to extract rents
or cleave to ideological dogmatism than are their offline counterparts (many
of whom, of course, are also netizens). As a result, online regimes will
suffer many of the same inefficiencies and impediments to reaching consensus
as real space communities. In fact, close-knit offline communities may be
able, through social pressure, to curtail strategic behavior to a greater
extent than highly fluid and heterogeneous online regimes.
[*425] Finally, unanimity rules, both in cyberspace and offline, are
deeply conservative. When each person's consent is necessary to change the
status quo, the status quo is likely to remain unchanged. Since unanimity
rules do not arise in a vacuum, their effect is thus to freeze preexisting
distributions of entitlements and assets. n107 Generally speaking,
this effect may be either desirable or undesirable, depending largely on
how one views the antecedent system of holdings. But in cyberspace the fundamental
conservatism of unanimity rules would be highly detrimental to liberal democratic
values because there entitlements largely involve speech, and controversial
speech is unlikely to garner universal acceptance. Were prospective Usenet
newsgroups required to obtain unanimous acceptance, rather than the supermajority
they currently require, fringe newsgroups would likely be voted down, leaving
a thoroughly mainstream Usenet. n108 Unanimity rules in cyberspace
would thus cut against the wide-open, robust exchange of views that is central
to liberal democracy.
Moreover, preexisting real-space holdings may also have a significant impact
on virtual voting. Players with the resources to compensate dissidents are
far more likely to overcome both strategic and honest opposition than are
those who must depend on the persuasive force of their argument. Thus, to
the extent that consensual decision making (or, for that matter, majority
referenda) is used to determine arrangements regarding issues such as the
use of web visitors' personal information, permissibility of email advertising,
or allocation of Internet domain names, commercial entities with the wherewithal
to buy votes will be at a decided advantage.
ii. Ease of Exit
The cyberpopulists' favored solution to the problem of majority tyranny
focuses on the ease of exit. Cyberpopulists assert that dissenting netizens
can, if they so wish, find a haven from the strictures of majority rule by
simply leaving the cyberspace forum or network in question and choosing or
establishing a new one to their liking. n109 Such exit, cyberpopulists
emphasize, is much easier and less costly in cyberspace than in real space.
A cyberspace dissenter need only discontinue visiting a forum [*426]
and find, or fairly cheaply establish, an alternative one more closely aligned
with the dissenter's views or preferences. Losers in real world plebiscites,
in contrast, can usually avoid the result only if they endure the cost and
disruption of physically moving to another jurisdiction. As a result, cyberpopulists
assert, netizen dissenters and minorities, unlike their real world counterparts,
have no need for liberal rights. The capacity for easy exit substitutes for
constitutional liberty, and the abundance of alternative rule regimes provides
a near certainty of consent. n110
This argument that exit and abundant alternatives can make up for the illiberal
aspects of majority rule is unconvincing. Certainly, exit from a cyberspace
forum is considerably cheaper than moving from a physical jurisdiction. Indeed,
in many, perhaps most, instances it might entail no more psychic cost than
terminating a subscription to a journal or discontinuing watching a television
program that has moved to a new time slot. But as cyberians often note, involvement
in a virtual community is not always so trivial. Individuals may develop
deep feelings of attachment and loyalty to virtual communities and may be
devastated by perceived wrongs within those communities. n111 In such
instances, exit is far from costless.
In addition, exit is not always as simple as moving from one discussion group
to another. There might not be another forum on the same or similar topic
that is available to the excluded individual. Nor is it easy to establish
a new forum. n112 Indeed, like those whose proposal for a new Usenet
newsgroup is voted down, dissenters may be denied the possibility of establishing
a new forum within a particular network. n113 In such cases,
[*427] and in others involving dissension at the network level, the
dissenter faces exit not merely from a single forum, but from an entire network.
Since networks, such as the Usenet or the set of proprietary fora administered
by America Online, are far less abundant than discussion groups, exclusion
from a network may entail a significant diminution in the availability of
rule regime alternatives. To the extent that such exclusion substantially
reduces the number of persons with whom the dissenter might potentially communicate,
it also carries a loss of "network benefits," the value, typical of telecommunications
systems, of being a part of a network in which communication with many others
is possible. n114
d. Summary (and Caveat)
Cyberpopulists underestimate representative democracy's capacity to reflect
popular will while protecting dissenters. They also grossly overestimate
the Internet's capacity to overcome the majority tyranny problem that is
endemic to direct democracy.
To identify the cyberpopulist miscalculation, however, is not to prescribe
a full array of constitutional rights and majority-checking institutions
for the protection of cyberspace dissenters. Rather cyberspace fora and networks
should have considerable leeway to treat dissenters as they wish. This is
not because cyberspace offers a substitute for the protection of liberal
rights; it does not. Instead, as I will discuss more fully below, cyberfora
should enjoy some leeway primarily because independent and diverse civic
association has its own constitutive value for territorial liberal democracy.
1. The Cybersyndicalist Claim
While cyberpopulists offer an intriguing vision of virtual democracy, Internet
rule making is only rarely the direct outcome of anything approaching a formal
vote. n115 Accordingly, cyberians generally locate their claims for
cyberspace governance in alternative conceptions of "bottom-up" ordering.
The cybersyndicalist approach finds consensual self-governance in the social
norms that arise from repeat interactions within virtual communities.
n116 At one time, the entire Internet was seen to share a [*428]
common metaculture, roughly characterized by a belief that "information must
be free" from proprietary control, government censorship, and the taint of
commercial dealing. As the Internet has expanded and become more commercial,
however, that common culture has largely, though not entirely, given way
to a multitude of local cultures based in Usenet newsgroups, email discussion
groups, chat rooms, and other fora.
Drawing heavily upon the literature regarding private ordering and social
norms, n117 cybersyndicalists see these local cultures as the site
of a political order highly reflective of consensual governance and individual
liberty. n118 Their rationale is quite similar to that of the cyberpopulists
except that, for cybersyndicalists, netizens manifest active consent to local
rule regimes not by voting, but by engaging in the conversation and repeat
behavior that generates and perpetuates social norms. Akin to the cyberpopulist
argument for unanimity-based rule regimes, cybersyndicalists place great
weight on consensus. The development and maintenance of social norms requires
substantial, near universal accord and compliance. A social norm will not
arise or survive amidst significant intracommunity dissension concerning
the norm's acceptability, as it will in majority rule voting. n119
Also like the cyberpopulist vision, the cybersyndicalist approach places
great import on the availability of exit. Traditional close-knit, real-world
communities are notorious for their suppression of dissent. For cybersyndicalists,
no less than for cyberpopulists, the key to individual liberty and consent
in virtual communities is the relative ease with which a dissenter may exit
her current community and join or establish another more in line with her
preferences or values. n120 In sum, the cybersyndicalist vision mirrors
the neoliberal redescription of the liberal order: a network composed of
multiple voluntary organizations and individual agreements. n121
2. Critique of the Cybersyndicalist Claim
Given the large overlap between the cyberpopulist and cybersyndicalist claims,
my criticisms of the former largely apply to the latter as well. The cybersyndicalist
claim, however, is especially vulnerable to the tension, if not fundamental
contradiction, between community and exit. Studies emphasize that a high
degree of homogeneity and stability of membership is critical to a group's
generation and perpetuation of social norms. n122 Virtual communities,
with their relative ease of exit (and, in many cases, entrance), present
classic counterexamples to the types of territorially bound close-knit groups
in which rule by social norms is possible. Accordingly, it is hardly surprising
that cyberfora most characterized by bottom-up norm generation (as opposed
to rule by moderator or administrator fiat) rapidly degenerate into a familiar
pattern of mutual recrimination ("flame wars") and disillusionment.
A game theoretic model may help to explain the often cited and frequently
lamented unraveling of virtual communities. n124 The prisoner's dilemma
and similar such games have been used to model social phenomena in which
the participants would benefit by cooperating with one another, but nevertheless
fail to do so. n125 In the typical prisoner's dilemma situation, each
participant enjoys the greatest gain if all participants cooperate. But each
participant would suffer the greatest loss - a loss in excess of that incurred
by the universal failure to cooperate - if she seeks to cooperate but others
defect. At the same time, the model assumes, no participant can be certain
of the others' cooperation, and thus each participant has an incentive to
defect. As a result, defection will often be the participants' overall dominant
strategy, even though universal defection is a less desirable alternative
than universal cooperation.
[*430] Civil discourse is a collective good that is the product of
the contributions of individual discussants. n126 Civility requires
active cooperation; its maintenance requires constant effort and diligence
among community members. Discussants must express their views and disagreements
in a civil manner, suppressing the desire for cutting retort. They must also
educate newcomers as to the need for civility. Moreover, a norm of civility
requires universal, or at least near universal, compliance. One or two individuals
engaged in flaming or off-topic diatribe may radically alter the character
of community discourse, much like the eruption of a heated argument between
two guests fundamentally changes the tenor of a small social gathering.
Assuming that civility is a universally shared goal, n128 flaming
and other active flouting of the civility norm clearly constitutes prisoner's
dilemma defection. But so does doing nothing. Civil discourse, as just noted,
is a collective good that can emerge only through the ongoing active contributions
of community members. Cooperation in the establishment and perpetuation of
the civility norm thus entails more than simply refraining from flouting
the norm while silently "lurking" in the background. n129 It also
requires making periodic civil contributions to community discussion and
helping to educate newcomers as to the norm. Concomitantly, the failure actively
to participate in the maintenance of the civility norm in that manner also
constitutes defection. In other words, when cooperation entails making contributions
to the production of a collective good, free riding on others' contributions
constitutes defection. n130
The prisoner's dilemma and other game theoretic models would predict that,
absent some mechanism for compelling or inducing cooperation, virtual community
members will have every incentive to defect, whether by failing to suppress
the urge to flame or by free riding off others' efforts [*431]
to produce civility. n131 This is true for two reasons. First, given
that the absence of a single individual's ongoing active contribution will
not noticeably weaken the civility norm, each individual has the incentive
to free ride on others' contributions. n132 Second, for any given
individual, it is not worth incurring the costs of cooperation when cumulative
defections by others may radically undermine the civility norm, thus depriving
the individual of the benefits of incurring those costs. And so, as often
happens in unmoderated cyberfora, one or two individuals actively defect
by engaging in flaming or off-topic diatribe and others then defect by counterflaming
or simply ceasing to participate in community discussion.
Close-knit, real-world communities may generally diminish, and often overcome,
the incentive to defect. n133 In such settings, persons have a permanent
stake in cooperation, are able to communicate to coordinate their behavior,
and suffer social sanctions of varying degrees if they fail to cooperate.
n134 As a result, each person has a relatively high degree of trust
ex ante that others will contribute their share to the production of collective
goods (although even in many real-world communities, shirking is a perennial
source of social tension).
Virtual communities may share some of these cooperation-inducing attributes.
Certainly, discussants communicate to attempt to bring about mutual cooperation.
Shaming through written criticism could also be an effective tool to enforce
civility norms against those who contravene them, albeit of lesser effectiveness
than when members must literally face each other and cannot hide behind the
anonymity made possible by Internet technology. Finally, violators may be
silenced by software enabling users to filter out messages from certain persons
n135 or by exclusion from the community (although the latter generally
entails a top-down act from the local system operator rather than bottom-up
norm enforcement per se). n136
[*432] All told, however, individuals will invest in such cooperation-inducing
measures only if they have a sufficient stake in the outcome. Here is one
place where exit undermines norm creation. The greater the freedom of movement
among virtual communities, the greater the cost of perpetuating social norms
(given the outflow of those with knowledge of the norm and the influx of
ignorant newcomers) and the lesser the stake of any given individual in any
particular community. n137 Mobility also undermines each individual's
trust that others will match her contributions to the production of collective
goods rather than free riding on those contributions. n138 Mobility
may be substantially more limited when the relevant "community" is an entire
network of discussion groups rather an individual group itself. But such
networks are generally too large and too diverse to generate a stable, cohesive
set of norms from the bottom up, as opposed to by network administrator fiat.
At bottom, then, as I discussed in my critique of cyberpopulism, when individuals
have a substantial stake in a particular virtual community, exit is not a
tenable option to protect them against majority oppression. But when individuals
lack that investment, the result is a flame-ridden cacophony rather than
a cohesive community capable of government by the "bottom-up" generation
of social norms. Neither prospect, I will again emphasize, necessarily calls
for systematic state intervention. They do, however, belie the notion that
either cyberpopulism or cybersyndicalism may form a basis for the claim that
cyberspace self-government is a viable mechanism for realizing liberal democratic
1. The Cyberanarchist Claim
Cyberanarchists see cyberspace as a market of alternative rule regimes.
In their view, cyberspace "governance" consists of the contingent aggregate
result of a multitude of individual decisions. n140 In the cyberanarchist
vision, cyberspace is a system characterized by the ready ability of (1)
each individual to choose which cyberspace sites and networks she wishes
to visit, (2) site and network administrators to define local norms and use
technology to enforce them, in large part by excluding dissenters, and (3)
dissenters to find alternative sites (or networks) or establish new ones.
n141 In this scheme, it is entirely irrelevant whether local norms
are produced by vote, cohesive community, negotiation, or administrator fiat.
Individual liberty and consent are guaranteed by individuals' ability to
shop for desirable rule regimes. As Esther Dyson puts it:
A Net-based government can operate only by consent of the governed. Any Net
government must therefore provide its citizens with real benefits if it wants
them to stick around. Those benefits may not be just personal goods or services,
but rather the broader benefits of a regulatory regime: a clean, transparent
marketplace with defined rules and consequences, or a supervised community
where children can trust the people they encounter or individuals' privacy
is protected. n142
As we will presently see, Dyson's halcyon portrait widely misdescribes the
cybermarketplace. However, the cyberanarchist paradigm does approximate the
potential nature of cyberspace governance for the vast majority of Internet
users far more closely than do the cyberpopulist and cybersyndicalist visions.
Most of us encounter cyberspace rule regimes, knowingly or unknowingly, in
the form of standard adhesion contracts or their digital equivalent. When
we obtain Internet access through America Online or another Internet service
provider (ISP), we do so subject to the ISP's standard "Terms of Service."
Such terms cover a broad spectrum of issues, including restrictions on the
type of messages subscribers may upload to discussion fora, ISP rights to
copy and modify subscriber messages, ISP use of subscribers' personal information,
and ISP perogatives unilaterally to modify the Terms of Service and to terminate
subscriptions at its discretion. Likewise, many web sites contain standard
conditions of [*434] use, n143 governing similar topics,
to which the user purportedly agrees by clicking on the appropriate button
or simply entering the site. n144 Less formally, moderators unilaterally
set the norms of participation in many newsgroups and email discussion groups.
Finally, those who design and implement program code and network architecture
essentially prescribe the terms of much Internet use. n145 Digital
encryption increasingly governs the terms for gaining access to and making
use of text, music, graphics, and films available on the Internet.
n146 And the program code for browsers effectively determines what web sites
users may or are likely to visit and what information site operators may
obtain about them. n147
At the margins, users might be able to negotiate for desired terms or, in
some instances, to establish their own web sites or discussion groups with
rules more to their liking. In a regime of cyberanarchy, they might even
be able to deploy technology to circumvent encryption-enforced restrictions
on use and access. n148 But for the vast majority of us, in the vast
majority of cases, user input will consist entirely of consumer purchasing
behavior. At bottom, the cyberanarchist claim is that consumer's "power to
switch" from one rule regime to another will discipline the market, yielding
an array of rule regime choices that comport with consumer demand.
2. Critique of the Cyberanarchist Claim
The cyberanarchist claim falls apart at a number of key points, which I
group into two categories. n150 First, the cyberanarchist claim depends
upon a greatly exaggerated view of consumer sovereignty in the cyberrule
regime marketplace. Second, the claim is vulnerable to many of the standard
criticisms from liberal democratic theory regarding the use of the market
as a mechanism for individual and collective choice.
a. Individual Autonomy (as Consumer Sovereignty) in Cyberspace
The cyberanarchist claim depends on the notion that individuals' choice
of rule regimes reflects their true preferences regarding rules. That claim
comprises two parts: first, that Internet users exercise at least some modicum
of meaningful, informed choice in selecting rule regimes, and, second, that
Internet users enjoy free mobility among a plethora of alternative rule regimes.
In reality, however, Internet user autonomy of choice and mobility are both
far more constrained than cyberanarchists suggest. I will first discuss a
number of limitations on Internet users' meaningful choice in selecting rule
regimes. I will then examine constraints on mobility, including both barriers
to exit and a likely dearth of alternative rule regimes from which to choose.
i. Meaningful Choice
I must confess: I have never chosen one web site over another because I
preferred the former's conditions of use over the latter's. Indeed, I rarely
bother to read a web site's conditions of use. Nor have I sought to determine
whether my Internet browser is set to filter out certain content or allow
web site operators to leave "cookies" (information regarding my site visits)
on my hard drive for their later use. n151
My failure to assess and compare such rule regimes is no doubt typical of
Internet users. n152 In fact it parallels the inaction of offline
consumers faced with a standard form contract. No one expects consumers to
read, let alone negotiate, such contracts. n153 Nevertheless, the
law presumes consumer consent from the customer's signature (or other objective
[*436] manifestation of assent), and an adhesion contract is enforceable
unless manifestly oppressive. n154 The market could not function otherwise.
Indeed, a primary purpose of standardization is to eliminate bargaining over
details of individual transactions when bargaining costs and unpredictable,
customized bargains would deter producers from making valuable products and
services available. We would all be worse off, the argument goes, if customer
understanding and consent were prerequisites for standard form contract enforceability.
But the cyberanarchist claim is about neoliberal individual autonomy, not
social welfare. n155 Cyberanarchists want to say that each individual
chooses his or her rule regimes. In their view, the resultant rule regime
configuration manifests individual liberty, not a utilitarian calculus. It
is this claim of individual liberty, not efficiency, that undergirds the
cyberanarchist political claim.
So a cyberanarchist must say, following a neoclassical economics model of
consumer sovereignty, that my inaction - my failure even to attempt to inform
myself of the rules that govern my cyberspace activity - expresses my choice
to accept cyberspace rule regimes as they are, whatever they are. If potential
web site use conditions truly concerned me, I would read the fine print and
factor it into my choice of web sites. If my browser settings were of sufficient
importance to me, I would reconfigure them to my liking. Since I do not do
these things, I must place little value on the matters they regulate. I must
not really mind if others use my personal data or if I cannot freely access
and use the information I glean from a web site.
In cyberspace, no less than offline, however, the neoclassical model of consumer
sovereignty applies much better to comparison shopping for price or transparent
product quality than to shopping for terms. n156 Rule-regime shopping
entails the costs of acquiring and processing information on terms, including
appraising the many contingencies that adhesion contracts typically address.
n157 Such costs greatly exceed those involved in comparing price or
web sites' visual appeal, ease of use, and expressive content. On the Internet,
indeed, the cost of discovering and evaluating alternative rule regimes may
well be prohibitive. The Internet's central value lies in providing a wealth
of information in a fraction of the time that [*437] would be
required to obtain the information offline. But if Internet users were to
read and consider the conditions of use for each web site they visit, that
value would be lost. If we were to assess and compare alternative rule regimes
whenever we surfed the Internet, we would have to sharply curtail our Internet
The cybermarket in rule regimes, then, contains significant information,
collective action, and efficiency asymmetries. ISPs and web site operators
are repeat players. They can spread the cost of developing standard terms
of use among thousands and, in some cases, millions of potential users. Firms
also reap significant organizational benefits from term standardization,
reducing transaction costs within the firm as well as in customer dealings.
n158 Moreover, the Internet dramatically reduces interfirm coordination
costs; it makes standard terms publicly accessible, enabling rule regime
producers to "coordinate" with one another simply by replicating each others'
terms. Finally, in a dynamic market such as cyberspace, where firms must
place a premium on flexibility, it is far more rational for firms to compete
for the entire duration of their relationship. n159
Internet users, on the other hand, face material information and collective
action costs in responding to producers' standard terms. Individual consumers
must first find and assess a producer's terms. Neither is an easy task. Indeed,
when the terms are embedded in program code many Internet users do not even
know of their existence. n160 Moreover, when users do appraise producers'
terms, they have only the choice of accepting or rejecting the terms, not
negotiating changes. (And even if users could negotiate, they might have
limited bargaining power. In many cases, the informational goods available
over the Internet lack perfect substitutes, giving producers a degree of
market power.) n161 Thus, even at best, users would enjoy limited
benefits from expending the time and effort to compare rule regimes.
To be certain, Internet communication reduces collective action costs for
users, in theory laying the groundwork for user representatives or
[*438] organizations to assess producer rules or propose their own
counter-terms. But given the wide diversity and sheer number of Internet
users, coupled with innate human limitations in processing information and
coordinating positions, collective action costs would remain significant,
and would likely prevent any serious user challenge. n162 In addition,
individual users would not enjoy the repeat player and other efficiency benefits
that standard terms provide for many ISPs, web site operators, and other
rule regime producers. As a result, rule shopping and drafting is generally
more costly for users, both in absolute terms and relative to potential benefits,
than for producers. n163
Of course, market efficiency requires neither that consumers coordinate their
positions nor that every consumer have full information regarding a product.
Often, the presence of some number of sophisticated consumers is sufficient
to discipline the market. It might be argued, therefore, that it does not
matter if most Internet users do not know that certain browsers are set to
leave "cookies" and that certain web sites are set to receive them.
n164 So long as some users do know and have a preference for cookie-free
alternatives, the market will make cookie-free alternatives readily available
Significantly, however, such market discipline does not comport with the
cyberanarchists' political claim. Consumers who have to rely on their more
sophisticated counterparts are not themselves exercising ongoing individual
consent to the prevailing rule regimes. They are rather relying on sophisticated
consumers as their "agents." Moreover, in contrast to representative democracy,
the unsophisticated consumers have not elected their sophisticated counterparts,
and sophisticated consumers owe no duty to represent and have no particular
self-interest in representing the unsophisticated masses. If the sophisticated
consumers can realize their preferences by buying goods that are tailored
specifically to them at the same or lesser cost than goods that are available
to the public at large, they will do so, and producers will have no incentive
to alter the rule regime for [*439] others. n165 And,
given that digital technology enables producers to engage in considerable
price and product discrimination among consumers, producers may well provide
noncookie goods for those sophisticated consumers who insist on them and
cookie goods for everyone else. n166
The cyberanarchist vision does not depend solely upon individual autonomy
in assessing alternative rule regimes. It also posits near frictionless mobility
among rule regimes. Mobility, in turn, comprises both free exit from existing
rule regimes and a plethora of alternative regimes from which to choose.
But as I will discuss in this Section, Internet users enjoy neither the ease
of exit nor the limitless choice that cyberanarchists presume.
As we have seen, Internet users have limited voice in altering rule regime
terms. Users may also have limited possibilities for exiting rule regimes
they have already joined. As noted above in connection with cyberpopulism
and cybersyndicalism, individual exit is not always feasible. Individuals
who have invested in learning the technology, user interface, and rules associated
with a particular virtual forum may face considerable switching costs in
moving to another. n167 Moreover, over and above that rational cost
barrier, individuals exhibit a systematic tendency to place an inflated value
on what they already have. n168 Especially when combined with the
feelings of loyalty and attachment to virtual communities that I have discussed
above, n169 such endowment effects and status quo biases may themselves
create material exit costs. n170 And when individuals exit from the
entire network, their exit costs are further magnified. The [*440]
exclusion of a user from America Online, an email host from communication
with other hosts, or a web site from a domain name registry cuts off the
excluded party from vast amounts of information or from contact with large
numbers of other netizens. Given that loss of network benefits, the notion
of freedom to exit and choose an alternative in such situations is highly
Internet users will increasingly face parallel constraints in their menu
of rule regime alternatives. The early Internet promised, and to a large
extent delivered, a communications revolution. Previously only those with
the financial wherewithal to own a newspaper or broadcast station could reach
a mass audience. But the availability of digital networks drastically reduces
entry costs into the mass communication market. The result is the cacophony
of diverse voices that has come to characterize the Internet.
The Internet, however, is poised to change in ways that will bring back many
of the structural characteristics of the predigital mass media market. At
the low end, the Internet will continue to feature a lively and widely diverse
array of virtual street corner podia, including discussion groups, chat rooms,
individual web sites, and other fora heretofore unimagined. But the high
end - where most people will spend most of their cyberspace time - will be
controlled by the media and telecommunications mega-conglomerates that have
already begun to flex their muscles on the Internet.
It seems as if not a day goes by without another media, telecommunications,
and, increasingly, Internet content-or service-provider company merger.
n172 That phenomenon is hardly surprising. The negligible marginal cost of
Internet communication and connection creates unprecedented economies of
scale for the business of producing and disseminating information. As economists
have long recognized, "where technology creates [*441] significant
economies of scale, markets tend towards dominance by a few large players."
Moreover, a number of additional phenomena will add fuel to the centripetal
force of producers' economies of scale, amplifying the threat of oligopolistic
constraints on competition. n174 I will briefly mention two: network
effects and emerging Internet technology.
The network benefits inherent in communications systems, particularly systems
such as the Internet in which users can disseminate as well as receive communication,
make those systems a natural monopoly. n175 When users must choose
among two or more incompatible communicative networks, market power can quickly
tip the scales in favor of a single communicative network as users stampede
to the network that gives them the ability to communicate with the greatest
number of other users. Such a result circumscribes user choice of rule regimes.
Just as Microsoft's marketing and exercise of market power has led to the
near-universal adoption of a computer operating system that many disparage
as suboptimal, n176 so may market power result in near-universal adherence
to dominant rule regimes that do not reflect ongoing free and informed user
Emerging Internet technology fuels rule regime centralization by effectively
raising cyberspace market entry costs. In a world awash in cheap information,
audience attention becomes a scarce and highly sought-after resource.
n177 Not surprisingly, then, commercial players compete vociferously to draw
Internet users to their portals and web sites, and to [*442]
keep users there as long as possible. n178 As in the offline world,
producers with the financial resources to market their products, exploit
synergies with corporate partners and affiliates, and produce high-quality,
attention-grabbing content will likely succeed in capturing the lion's share
of audience attention. n179
Emerging Internet technologies will give commercial players a significant
additional advantage in the market for user attention. Prominent among these
technologies, high speed modems, digital signal compression, and broadband
infrastructure make possible the transmission of high-quality video programming.
n180 As a result, much of what we will see on the next generation
Internet will be indistinguishable from tomorrow's high-definition television.
n181 And, of course, it costs a great deal more to produce television
programming than to put together a typical home web page. n182
In short, with the growth of broadband digital communication, cyberspace
will consist of at least two largely distinct communicative matrices. The
realm of email, traditional web pages, and the like will continue to have
negligible entry costs and foster a highly diverse plurality of expressive
fora and rule regimes. But most of cyberspace, in terms of both bandwith
and user attention, will bear scant resemblance to the early Internet's soap
box world. Media and telecommunications conglomerates' high-production, star-studded
video content will be the stuff of most cyberspace communication.
n183 And, concomitantly, for most Internet travelers, most of [*443]
the time, the standard conditions of use for those conglomerates' networks,
portals, sites, and channels will comprise the rules of the virtual road.
b. Cyberanarchy Versus Liberal Democracy
As we have seen, the cyberanarchist claim depicts cyberspace as a near ideal
market and equates that market with a quintessential liberal order. For cyberanarchists,
cyberspace approaches the Coasean ideal of a universe of perfect competition
and no transaction costs. It is a world of extensive consumer choice among
existing alternatives and easy entrance to the market to create new ones.
In that world, state-created law has little place. In the absence of transaction-cost
barriers to collective action and private bargaining, netizens can, through
ongoing negotiation or simply the choice of one rule regime over another,
determine and modify entitlements to suit their local needs. n185
By definition, therefore, an untrammeled cyberspace reflects individual liberty
I have argued that cyberspace in fact falls far short of that Coasean paradise.
But even if the cyberanarchists' depiction of cyberspace comports with cyberspace
reality, the cyberanarchist neoliberal vision is vulnerable to attack from
both the liberal and democratic components of liberal democracy. For one,
the cyberanarchist claim evokes long-standing and often repeated concerns
regarding the inconsistencies between markets, on one hand, and liberal democratic
ideals on the other. In addition, the unregulated cyberspace that cyberanarchists
envision would give rise to some of the very types of negative externalities
that liberal democracy serves to minimize. I briefly consider each in turn.
i. Inconsistencies Between Markets and Liberal Democracy
Commentators have highlighted significant discrepancies between rule by
market, on the one hand, and both liberal and liberal democratic rule, on
the other. First, individual market preferences may represent an impoverished
account not only of "what the people want," but also of what individuals
want. People often express different preferences in nonmarket [*444]
contexts than they do as consumers. n186 In such instances, individuals'
positions taken in settings of collective choice or in crafting personal
ideals reflect individual preferences more accurately than do consumer purchases.
Second, the political process, including formal deliberation, open critique,
and law making, may modify individual preferences. Some argue, accordingly,
that considered opinions tested in deliberative process constitute a fuller
account of people's autonomous choices than do people's decisions as consumers.
n187 Third, the existing matrix of legal rules, social norms, and
resource distribution may play a significant role in determining consumer
preferences. n188 Accordingly, in contrast to market-centered notions
of consumer sovereignty, consumer preferences are necessarily endogenous
to the political process. An authentic liberal democracy, therefore, cannot
simply take revealed preferences as it finds them. n189 Finally, according
to some theorists, the popular will can only be found in the outcomes of
democratic political discourse, not in an aggregation of atomist decision
making. n190 In that view, the democratic side of the liberal democratic
equation assumes a more prominent position than the liberal side.
These are cogent arguments and, I would contend, well within the mainstream
of liberal democratic thought. Beyond that statement, I cannot assess their
validity in these several pages. My point here is simply that the cyberanarchist
equation of consumer sovereignty with individual liberty and government by
consent of the governed is far from uncontroversial. To the extent that the
liberal democratic critique of markets holds outside of cyberspace, it applies
equally to cyberanarchism.
ii. Illiberal Externalities
The cyberanarchist vision might well give rise to negative externalities
that fly in the face of liberal and liberal democratic ideals. For one, a
cyberanarchist universe would countenance unhindered discrimination based
on race, gender, and other immutable personal characteristics. Today's largely
text-based Internet makes it difficult to determine user status and therefore
to discriminate on the basis of that status. n191 But the [*445]
growth of video chat rooms, n192 digital identification, n193
and "online profiling," n194 which may include photographs identifying
the profiled user, n195 raise a nontrivial threat of such status-based
exclusion from virtual communities, web sites, or even entire networks.
n196 In addition, as discussed above, while today's Internet is characterized
by diversity of expression, the growth of WebTV and other high-cost content
production, coupled with fierce competition for user attention, may push
minority voices to the margins. n197 Indeed, given the narrowcast
character of Internet content, it may be that most people have even less
contact with dissenting opinion in cyberspace than they do as consumers of
traditional media. n198
Finally, cyberanarchists take no account of the vast inequalities in the
distribution of the resources required to gain access to cyberspace, let
alone exercise meaningful choice within it. Much of the world's population
has no connection to the telephone infrastructure, let alone the Internet.
n199 Even within developed Western countries, Internet users are overwhelmingly
white, educated, and affluent. n200 Moreover, with the spread of cable
modems, high-cost content, and encrypted access, cyberspace itself may well
fracture into networks with high-quality content and technology effectively
reserved for the wealthy, and class B networks available for everyone else.
n201 The cyberanarchist vision, based on competing rule [*446]
regimes with the right and technological capacity to exclude unwanted or
nonpaying users, would inevitably exacerbate these inequalities.
The cyberian liberal perfectionist claim advances a tripartite challenge
to representative liberal democracy: cyberpopulism, cybersyndicalism, and
cyberanarchism. Much of that claim boils down to the descriptive argument
that cyberspace offers an unprecedented opportunity for realizing a neoliberal
order of unanimous consent through social norms, buying off hold-outs, individual
exchange, and frictionless mobility among rule regimes. Building upon that
descriptive argument, cyberians then make a normative claim. A neoliberal
order, they assert, more fully expresses the liberal democratic ideals of
individual liberty and government by consent of the governed than does collective
decision making through elected representatives within a framework of constitutional
protections for minorities and dissenters.
I have sought in this Part to refute the cyberians' descriptive arguments
and to cast doubt on their normative claims. I have shown that cyberspace
rule making falls far short of a neoliberal regime of individual choice.
I have also questioned whether such a regime - even in its ideal form - would
truly realize liberal and liberal democratic principles.
Equally important is what I do not contend. First, I do not contend that
our current political institutions represent the ultimate fruition of liberal
democratic ideals. I have sought simply to refute the cyberian claim of liberal
perfection, leaving for further study a comparative analysis of the relative
efficacies of cyberspace versus governmental rule making. n202 Second,
I do not call for state intervention whenever cyberspace might stray from
or even prove inimical to liberal democratic ideals. Indeed, as I will presently
discuss, the liberal democratic state must leave considerable (although not
unlimited) room for individual and associative autonomy. That is so even
when private actors promote illiberal results.
III. The Cyberian Claim of Community Autonomy
Over and above their claim of liberal perfection, cyberians base their argument
for presumptive cyberspace self-governance in liberal principles of community
autonomy. n203 That claim stands independently of any suppositions
regarding the consensual character of cyberspace rule making. It looks rather
to the nature of the liberal nation-state. Political liberalism, it
[*447] insists, must make considerable room for community self-governance.
The liberal state must accord religious communities, insular ethnic minorities,
fraternal organizations, and other private associations considerable latitude
to govern themselves, even in ways that run contrary to liberal values. So
must the state give way before virtual community self-governance. Johnson
and Post put it categorically:
If the sysops and users who collectively inhabit and control a particular
area of the Net want to establish special rules to govern conduct there,
and if that rule set does not fundamentally impinge upon the vital interests
of others who never visit this new space, then the law of sovereigns in the
physical world should defer to this new form of self-government. n204
The question of associational self-governance - and especially the question
of how the liberal state should respond to separatist or illiberal communities
and associations - hits a fault line in liberal democratic theory and practice.
n205 It is helpful in this regard to distinguish between two sorts
of self-rule claims. Strong self-rule claims are generally propounded by
ethnic or religious groups who seek to establish a geographically distinct
local government to live exclusively among themselves and to pursue without
fetter their own idiosyncratic practices, culture, and vision of the good.
A strong self-rule claim thus insists upon community autonomy in the governance
of a broad panoply of social and political institutions, including education,
property, criminal and civil legislation, adjudication, and taxation. A weak
self-rule claim is one of partial associative autonomy. Typical examples
involve civic association by-laws, church or club membership requirements,
bowling league rules, and professional standards. In each case persons seek
autonomy from state interference in the determination of norms governing
a discrete set of mutual commitments. In contrast to strong self-rule claims,
such claims do not entail a profound, geographic separation from the rest
of society. They involve a scope of activity of far lesser dimension than
that generally associated with full-scale local government.
Cyberians imbued with the culture of the early Internet phrase their community
autonomy claims in terms approximating those of strong self-rule. For them,
cyberspace offers a comprehensive culture and value system, one highly distinct
from the offline world. n206 It also offers possibilities for many
of the attributes of government, including rule making, adjudication, education,
and punishment. n207 More plausibly, though, [*448] arguments
for cyberspace self-governance fall closer to the category of weak self-rule
claims. Netizens are also citizens. They eat, work, sleep, pay taxes, vote,
and go to school in the real world. n208 For the most part, and this
is increasingly so as the multitudes discover the Internet, cyberspace activity
and virtual community make up only a fraction of their interactions, transactions,
and commitments. Cyberians, accordingly, seek autonomy for particular, discrete
association, for rules governing the part of their lives and activity that
concerns that association.
In any event, with the partial exception of Indian tribes, American law has
been generally unaccommodating to strong self-rule claims. n209 Statutory
prohibitions of various member practices and judicial invocation of the Establishment
Clause have consistently thwarted efforts by Mormon, Oneida, Rajneesh, Satmar
Chasidic, and other such communities to achieve significant powers of self-governance.
n210 Commentators share this skepticism about granting significant
autonomy to self-defining, predominantly illiberal groups. n211 Some
theorists stress the primacy of democratic liberal values. John Rawls argues,
for example: "The adult members of families and other associations are equal
citizens first....No institution or association in which they are involved
can violate their rights as citizens." n212 Others view the inclusion
of cultural and religious minorities within the political community as a
requisite of liberal democracy. As Christopher Eisgruber has recently propounded,
"Assimilation, far from being the enemy of diversity, is perhaps the only
means for reconciling this country's commitment to pluralism with its commitment
to justice." n213
[*449] There are commentators who see granting group autonomy as intrinsic
to political liberalism. n214 But even they would limit autonomy to
discrete geographically and culturally insular groups, such as the Amish
or the Satmar Chasids, for whom self-rule is an integral part of their pursuit
of deeply-held values and who do not impose significant externalities on
their neighbors. n215 There are two principal reasons why even supporters
of group autonomy would place such sharp constraints on strong self-rule.
First, as researchers of close-knit groups have often noted, such groups
exhibit a marked tendency to impose externalities on outsiders. n216
Geographic and cultural isolation reduce opportunities for contact with outsiders
and thus might lessen the chances that a group will impose harmful externalities.
Second, the proliferation of otherwise benign separatist communities can
lead to a balkanization of society that undermines liberal rule. Liberal
democracy requires citizens to have a relatively high level of self-restraint
and mutual recognition. n217 Rampant separatism would "undermine the
degree of social cohesion necessary to sustain an "enduring and secure democratic
The cyberian strong self-rule claim runs squarely up against these liberal
barriers to such claims. Even taking the most favorable view of community
self-governance, virtual communities, as noted above, are insufficiently
insular and insufficiently free from imposing harmful externalities to warrant
strong self-rule. Given the growing numbers of persons involved in cyberspace
activity, strong self-rule - if we are to take that claim seriously - might
also pose a destabilizing threat to the civic identity and broad social unity
required to support the liberal state.
Indeed, here we see yet another deleterious effect of cyberspace mobility.
Cyberians tout the benefits of mobility, both among cyberspace rule regimes
and from territorial rule to cyberspace self-governance. They argue that
regulatory arbitrage--allowing individuals maximum freedom to exit rule regimes
not to their liking and to choose new regimes that suit their preferences
- yields positive welfare and collective rule benefits across communities.
n219 Following the work of Charles Tiebout and his progeny, cyberians
contend that intercommunity mobility improves the allocation of public goods
by enabling individuals with similar tastes for local public goods to sort
themselves into groups. n220 Similarly, they see [*450]
mobility as a vehicle for bringing about collective rule regimes built upon
social consensus since mobility enables persons of like preferences and opinions
to associate with one another and distance themselves from those with whom
But mobility itself can have significant negative externalities. As Dennis
Mueller notes: "The family leaving community A to find better schools decreases
A's tax base and thereby imposes costs on those left behind who must maintain
the schools that were built on the assumption that this family would pay
taxes." n221 Similarly, those who exit territorial liberal society
eschew (to the extent they can) the financial and political burdens of maintaining
and improving the institutions of that society. They also undermine the sense
of solidarity, mutual recognition, and social commitment that are themselves
collective goods central to a liberal society. Finally, while sorting individuals
into isolated, self-governing, like-minded groups may bring about greater
overall social consensus (to the extent those groups do not impose harmful
externalities on others), that, too, is a mixed blessing in political liberal
theory. The liberal state, many commentators assert, depends upon robust
debate among contrary views. n222 It is only through interaction and
deliberation with those of opposing ideas and perspectives that citizens
can test their preferences and produce better collective decisions.
In short, the cyberian strong self-rule claim fails to meet the criteria
that even liberal supporters of strong community autonomy lay down for recognizing
community self-governance. Given the intermingled and porous nature of virtual
communities, the strong self-rule of such communities would likely impose
significant negative externalities on outsiders. At the same time, the proliferation
of strongly autonomous virtual communities would tend to eat at the foundations
of the territorial liberal state. At least from the point of view of the
liberal state, therefore, the cyberian strong self-rule claim must be rejected.
The cyberian weak self-rule claim is somewhat more tenable, but this is largely
because it has far less bite. Traditional liberalism not only tolerates,
but also encourages semiautonomous civil association. Indeed, civil association,
of which cyberspace is a part, plays a central constitutive role in the liberal
state. Representative government best reflects the consent of the governed
through interaction with an alert and politically competent [*451]
citizenry. The discursive fora of civil society can help engender the independent
thought, self-direction, and political acumen required to pass judgment on
elected officials and influence political agendas. n224 Even civil
associations that espouse or embody illiberal views can be seen ultimately
to contribute to a liberal polity by challenging majority or government-imposed
The generation of norms through civil association can also be seen as part
of the matrix of political decision making. Social norms may have a profound
influence on our individual and collective understandings of reality.
n226 Accordingly, the determination and contesting of norms in the multiple
discursive fora of civil society carries a socio-political valence that at
times rivals that of state-enunciated law. For the state overly to burden
such constitutive activity would be to undermine "democratic culture" - the
political awareness, mutual recognition, and social accountability - upon
which a vibrant representative democracy depends. n227
Yet, while the importance of autonomous civil association cautions against
stifling, heavy-handed state intervention, neither does it obviate or detract
from the desirability for state regulation in certain circumstances. Civil
association activities and rules that impose negative externalities, violate
public policy, or result from information asymmetries and other forms of
market failure are commonly the subject of ameliorative state action.
n228 As trenchant critics of cyberspace independence reiterate, cyberspace
activity and virtual communities are hardly free from such problems.
n229 Indeed, cyberspace is highly porous: Virtual defamation may destroy
territorial reputations, copyright infringement on the Internet may undermine
creative incentives offline, cyberspace hate speech may inspire physical
violence, and fraud in web site sales transactions may deprive real persons
of real money expended for real goods. Accordingly, while from the point
of view of the liberal state, virtual association might be entitled to the
same degree of quasi-autonomy generally accorded to territorial association,
it certainly is entitled to no more.
* * * * *
n44. Such self-governance, of course, transpires only within the framework
of state-created subsidy and law. See sources cited supra note 6.
n45. For an illuminating discussion of such rules, see Siegal, supra note
7. See also Mnookin, supra note 10. Multi-user games include MUDs (multi-user
dimensions) and MOOs (object-oriented MUDs). See sources cited supra note
n46. The WELL is the acronym for the Whole Earth "Lectronic Link, a network
of moderated discussion groups based in San Francisco. For an in-depth study
of this pioneer network of virtual communities, see Howard Rheingold, The
Virtual Community: Homesteading on the Electronic Frontier (1993).
n47. See Jonathan Zittrain, The Rise and Fall of Sysopdom, 10 Harv. J.L.
& Tech. 495, 502-03 (1997) (discussing AOL and CompuServe fora).
n48. Much cyberpopulism contemplates the use of the Internet for citizen
initiatives, deliberation, and voting on real world issues, as opposed to
those involving cyberspace interaction per se. See, e.g., Graeme Browning,
Electronic Democracy; Using the Internet to Influence American Politics 84-88
(1996) (advocating use of Internet in offline politics); Clive Walker &
Yaman Akdeniz, Virtual Democracy, Pub. L., Autumn 1998, at 489 (discussing
possibilities for use of Internet for citizen plebiscites). In fact, the
vast majority of cyberspace rule making takes place by rough consensus, fiat,
or contract, not formal vote. But rule by vote has also found expression
within cyberspace administration. Most notably, perhaps, the establishment
of new Usenet newsgroups (other than those in the "alt." or alternative hierarchy)
requires a super-majority vote of those Internet users casting votes. See
Guidelines for Usenet Group Creation, Newsgroups: The Results (last modified
Sept. 24, 1997) <http://news.acns.nwu.edu/usnt end.html> (providing
that a new newsgroup may be created "if 100 more valid YES/create votes are
received than NO/don't create AND at least 2/3 of the total number of valid
votes received are in favor of creation"). Various newsgroups, chat rooms,
and listservs have also sometimes reached crucial decisions regarding internal
policy through deliberation and vote. See Siegal, supra note 7, at 203-06
(discussing ballot procedure concerning disputes within a LambdaMOO group).
Similar methods of vote or agreement have been suggested as a basis for cyberspace-wide
rule making. See David R. Johnson, Lawmaking and Law Enforcement in Cyberspace,
(visited Apr. 27, 1994) <http:www.eff.org/pub/Legal/cyberlaw johnson.article>
(suggesting cyberspace-wide voting or agreement). For a discussion of voting
within the Internet Corporation for Assigned Names and Numbers, established
to assume responsibility for managing the Internet domain name system, see
infra notes 375-76 and accompanying text.
n49. Andrew L. Shapiro, The Control Revolution 150 (1999).
n50. See id. at 150-54; see also Ken Dolbeare & Janette Hubbell, Saving
the American System: A Four-Part Program Including New Forms of Direct Democracy
(visited Jan. 4, 2000) <http://www.auburn.edu/tann/cp/features/sos.htm>
(proposing system of regular plebiscites, including email voting, on "all
n51. See infra text accompanying notes 97-104, 109.
n52. Agency costs are all costs incurred by a principal in relying upon another
person to accomplish the principal's tasks. They include the principal's
monitoring expenses, the agent's bonding expenses, and the residual losses
from agent shirking. See Michael C. Jensen & William H. Meckling, Theory
of the Firm: Managerial Behavior, Agency Costs and Ownership Structure, 3
J. Fin. Econ. 305, 308 (1976). For a discussion of agency costs in the context
of constitutional politics, see A.C. Pritchard & Todd J. Zywicki, Finding
the Constitution: An Economic Analysis of Tradition's Role in Constitutional
Interpretation, 77 N.C. L. Rev. 409, 448-50 (1998).
n53. Of course, traditional liberals were also keenly aware of officials'
propensity to follow their personal interests at the expense of the community
at large. Liberal constitutional democracy strives to check that propensity
(populists would say unsuccessfully) through institutions such as divided
authority, a free press, and frequent elections. See Holmes, supra note 32,
n54. See Post, supra note 20, at 527.
n55. See, e.g., Carole Pateman, Participation and Democratic Theory 109 (1970)
(conceding that despite the desirability of local participatory democracy,
"in an electorate of, say, thirty-five millions the role of the individual
must consist almost entirely of choosing representatives").
n56. See, e.g., Perritt, supra note 2, at 420; see also Niva Elkin-Koren
& Eli M. Salzberger, Law and Economics in Cyberspace, 19 Int'l Rev. L.
& Econ. (forthcoming 1999) (suggesting that cyberspace enables direct
communication of individual preferences and cost-effective feedback on those
preferences, thus obviating the need for intermediaries who would reflect
the aggregate will of their constituents).
n57. Anne Wells Branscomb, Anonymity, Autonomy, and Accountability: Challenges
to the First Amendment in Cyberspace, 104 Yale L.J. 1639, 1669 (1995) (citing
Mike Godwin, The First on a New Frontier, Quill, Sept. 1991, at 18, 19).
n58. James Harrington, The Commonwealth of Oceana and a System of Politics
81 (J.G.A. Pocock ed. 1992). Harrington is generally associated with republican
thinking, to the extent it can be meaningfully separated from traditional
liberalism. See also Pettit, supra note 32, at 173 (describing belief in
an empire of law, shared by liberal and republican theorists alike).
n59. See Samuel Issacharoff & Richard H. Pildes, Politics as Markets:
Partisan Lockups of the Democratic Process, 50 Stan. L. Rev. 643, 712-13
n60. See Marci A. Hamilton, The People: The Least Accountable Branch, 4 U.
Chi. L. Sch. Roundtable 1, 3-10 (1997) (describing the Framers' view). Indeed,
the original Constitution reflected a highly elitist conception of democratic
politics, in which representatives were seen to stand above their constituents,
and both senators and presidents were elected by other public officials,
not popular vote. See Issacharoff & Pildes, supra note 59, at 713-15.
n61. As David Post notes, "There has always been a strong fictional element
to using this notion of a social contract as a rationale for a sovereign's
legitimacy." David G. Post, New World War: Cancelbunny and Lazarus Battle
It Out on the Frontier of Cyberspace--and Suggest the Limits of Social Contracts,
Reason, Apr. 1996, at 30, 33.
n62. See Held, supra note 34, at 81; Murray Forsyth, Hobbes's Contractarianism:
A Comparative Analysis, in The Social Contract from Hobbes to Rawls 35 (David
Boucher & Paul Kelly eds., 1994) [hereinafter Social Contract]; see also
Jeremy Waldron, John Locke: Social Contract Versus Political Anthropology,
in Social Contract 51, supra (noting that "modern contractarians accept without
question that most of the social and political institutions which interest
them are not in fact the upshot of any contract or agreement among those
whose lives they affect" and arguing that Locke intended, at most, to make
the historical claim for tacit consent to civil government).
n63. See Held, supra note 34, at 81.
n64. For an illuminating discussion of the highly stylized and hypothetical
nature of "consent" in the context of nation-states' territorial sovereignty,
see Lea Brilmayer, Consent, Contract, and Territory, 74 Minn. L. Rev. 1 (1989).
n65. See Pettit, supra note 32, at 183-85.
n66. John Rawls, The Idea of Public Reason Revisited, 64 U. Chi. L. Rev.
765, 770-71 (1997).
n67. Pettit, supra note 32, at 183-85.
n68. William H. Riker, Liberalism Against Populism: A Confrontation Between
the Theory of Democracy and the Theory of Social Choice 244 (1982); see also
Joseph Schumpeter, Capitalism, Socialism and Democracy 284-85 (1942) (1976)
(asserting that democracy does mean actual rule by the people, but "only
that the people have the opportunity of accepting or refusing the men who
are to rule them").
n69. At the very least, liberal constitutionalist institutions such as frequent
elections, divided government, and free speech are designed in large part
to enhance the strength and effectiveness of the popular veto. See Holmes,
supra note 32, at 271 (contending that the theory behind divided government
is "that public officials will act more consistently in the interest of the
public if they believe they are being scrutinized by rival politicians who,
in turn, have clear incentives to alert otherwise distracted voters to gross
public malfeasance and ineptitude"); Vincent Blasi, The Checking Value in
First Amendment Theory, 1977 Am. B. Found. Research J. 523, 527 (identifying
the centrality of the "checking value" of the First Amendment, defined as
"the value that free speech, a free press, and free assembly can serve in
checking the abuse of power by public officials").
n70. Cf. Johnson & Post, Civic Virtue, supra note 2, at 26-29, 46-51
(contending that in cyberspace "voting with one's modem," meaning consumer
choice among rule regimes, can and will replace geographically defined representative
n71. See, e.g., Derrick A. Bell, Jr., The Referendum: Democracy's Barrier
to Racial Equality, 54 Wash. L. Rev. 1 (1978); Sherman J. Clark, A Populist
Critique of Direct Democracy, 112 Harv. L. Rev. 434 (1998); Julian N. Eule,
Judicial Review of Direct Democracy, 99 Yale L.J. 1503 (1990); Hans A. Linde,
Who is Responsible for Republican Government?, 65 U. Colo. L. Rev. 709, 721-22
(1994); Daniel H. Lowenstein, Campaign Spending and Ballot Propositions:
Recent Experience, Public Choice Theory and the First Amendment, 29 U.C.L.A.
L. Rev. 505 (1982).
n72. See Eule, supra note 71; Linde, supra note 71; see also Elizabeth Garrett,
Money, Agenda Setting, and Direct Democracy, 77 Tex. L. Rev. 1845 (1999)
(arguing that wealthy individuals and groups have a disproportionate ability
to place initiatives on the ballot and suggesting reforms to even the playing
n73. Frank I. Michelman, "Protecting the People from Themselves," or How
Direct Can Democracy Be?, 45 U.C.L.A. L. Rev. 1717, 1723 (1998); see also
Cass R. Sunstein, Democracy and the Problem of Free Speech 244 (1993) (arguing
that the "requirement of justification in public-regarding terms<elip>might
well contribute to public-regarding outcomes" and "might even bring about
a transformation in preferences and values, simply by making venal or self-regarding
justifications seem off-limits").
n74. Clark, supra note 71, at 440 (describing the argument that democracy
should follow the will of the people).
n75. Of course, as plebiscite supporters and others aptly note, most of the
time representative government actually falls far short of the deliberative
ideal. See Lynn A. Baker, Direct Democracy and Discrimination: A Public Choice
Perspective, 67 Chi.-Kent L. Rev. 707 (1991); Clayton P. Gillette, Is Direct
Democracy Anti-Democratic?, 34 Willamette L. Rev. 609, 631 (1998). Legislators
often have little idea of the content of the legislation on which they vote.
See Baker, supra, at 745-47. And the debate that transpires in legislative
chambers often consists largely of canned speeches designed to give voters
what they want to hear, not reasoned deliberation. See Gillette, supra, at
631. Nonetheless, given the right mix of campaign finance reform, judicial
vigil, and increased investment in the legislative process, there does seem
to be greater possibility for legislatures than for the public-at-large to
approximate the deliberative ideal. See Julian N. Eule, Representative Government:
The People's Choice, 67 Chi.-Kent L. Rev. 777, 785-89 (1991) (contending
that the combination of bicameralism, executive vetoes, logrolling, and judicial
review can block bigoted legislation and lead to a greater quality of deliberation
than can citizen plebiscites). It should not be forgotten, moreover, that
the ability to communicate cheaply and abundantly via the Internet may improve
the efficiency, professionalism, and responsiveness of legislatures no less
than it may create possibilities for citizen exchange of view. The Internet
is already used extensively to enhance communication between legislatures
and citizens and to make more information available to legislators and their
staffs. See Michael Remez, Policy, Persuasion Take Shape on Internet, Hartford
Courant, Feb. 26, 1998, at A12 (describing an American University study on
congressional use of the Internet).
n76. For a thoughtful proposal for deliberative direct democracy in one aspect
of cyberspace governance, see James S. Fishkin, Deliberative Polling as a
Model for ICANN Membership (last modified Feb. 22, 1999) <http://cyber.harvard.edu/rcs/fish.html>.
n77. For a discussion of such developments, see infra text accompanying notes
n78. Evan I. Schwartz, Direct Democracy: Are You Ready for the Democracy
Channel?, Wired, Jan. 1994, at 74.
n79. See ICANN Membership Advisory Committee Singapore Report PP 4.2, 7.2.2
(Mar. 3, 1999) <http://cyber.law.harvard.edu/rcs/macsing.html#4.0>
(describing dangers of fraud, manipulation, and vote buying in voting of
at-large membership of Internet Corporation for Assigned Names and Numbers).
n80. See Clayton P. Gillette, Plebiscites, Participation, and Collective
Action in Local Government Law, 86 Mich. L. Rev. 930, 968-69 (1988). On the
other hand, as Lynn Baker points out, "issues for plebiscitary decision typically
appear on a ballot that includes candidates for elective office," and those
who have already gone to the polls to vote for a candidate need invest very
little in addition to vote in the plebiscite as well. Baker, supra note 75,
n81. Supporters of real world plebiscites argue that citizen initiatives
and referenda do reflect the intensity of voter preferences because only
voters who care about the issue on the ballot will invest the time to go
to the polls to vote. See Gillette, supra note 80, at 968-69. However, even
where this might be the case (as when a ballot includes only the issue for
plebiscitary decision), this vote/do not vote option does not enable voters
to bargain among issues through vote-trading, which reflects many more gradations
of intensity of preference. See Baker, supra note 75, at 725. Moreover, the
argument has little force with respect to Internet voters, who need not go
to the polls in order to vote.
n82. See Buchanan & Tullock, supra note 38, at 134; Clark, supra note
71, at 456-63.
n83. A major caveat: logrolling can be said to reflect the popular will only
when citizens stand in a roughly equal bargaining position. This is not the
situation in the United States today, where gross disparities in financial
and communicative resources, coupled with the absence of meaningful campaign
finance regulation, lead to a situation in which representative government
reflects more the ability of the wealthy to expend vast resources to lobby
and elect representatives who will support their positions on a broad range
of issues than it reflects true give and take among issue positions. Even
putting aside those distortions, moreover, the desirability of reflecting
the intensity of popular preferences is by no means certain. I merely argue
here that it can be a more precise indication, or better definition, of popular
n84. On the other hand, plebiscites may have the beneficial effect of acting
as an external check on legislative capture by currently dominant political
parties. See Issacharoff & Pildes, supra note 59, at 669 n.100.
n85. The Internet would also make possible a system of ranked voting or electronic
vote trading regarding a series of initiative issues. Such systems enable
voters to express intensity of preference. However, they are subject to strategic
bargaining and other collective action problems. See Saul Levmore, The Case
for Limited Vote Selling 29-30 (Sept. 21, 1999) (unpublished manuscript,
on file with author).
n86. See Elkin-Koren & Salzberger, supra note 56. Browser technology
can be expected to provide better ways to filter and organize that information
in the future.
n87. See Shapiro, supra note 49, at 188-92 (discussing need for trusted intermediaries
to sort out bad data from good); Cass R. Sunstein, Free Markets and Social
Justice 185-87 (1997). For a colorful depiction of this problem, see David
Shenk, Data Smog: Surviving the Information Glut (1997).
n88. See Clark, supra note 71, at 464; cf. Christopher H. Schroeder, Rational
Choice Versus Republican Moment: Explanations for Environmental Laws, 1969-73,
9 Duke Envtl. L. & Pol'y F. 1, 29 (1998) (contending that voting for
representatives who favor environmental protection is a vehicle for overcoming
the collective action problem of broad, but moderate support of such protection
in face of intense industry opposition).
n89. See Clark, supra note 71, at 476-77.
n90. See id.
n91. See John R. Zaller, The Nature and Origins of Mass Opinion (1992) (finding
that people are ambivalent about specific issues and thus rely on political
leaders and other opinion elites).
n92. See Eule, supra note 71.
n93. Of course, one could conceivably institute a mixed regime of virtual
plebiscite, constitutional liberties to protect dissenters and minorities,
and judicial review, akin to what exists in the offline world. But that would
move cyberpopulism significantly in the direction of the constitutional territorial
democracy that it criticizes. Moreover, there is little reason to think that
such cyberconstitutionalism would afford more effective minority protection
than its real world counterpart. See Part V infra.
n94. See Rawls, supra note 66 (discussing the role of public reason in constitutional
democracy). Logrolling might also be protective of minorities. See Michelman,
supra note 73, at 1723. But cf. Baker, supra note 75 (contending that logrolling
would not afford greater protection to racial minorities).
n95. See infra text accompanying notes 97-105.
n96. See infra text accompanying notes 109-10.
n97. Wicksell and Lindahl posited that since public goods are of potential
benefit to everyone, it should be possible to provide and distribute their
benefits and costs in a manner that would secure each person's agreement.
See Knut Wicksell, A New Principle of Just Taxation (1896), reprinted in
Classics in the Theory of Public Finance 72 (Richard A. Musgrave & Alan
T. Peacock eds. & J.M. Buchanan trans., 1958) [hereinafter Classics];
Erik Lindahl, Just Taxation - A Positive Solution (Elizabeth Henderson trans.)
(1919), reprinted in Classics, supra, at 168. For further discussion of what
has been called the Wicksell-Lindahl tax, see Jules L. Coleman, Markets,
Morals and the Law 278-81 (1988).
n98. See, e.g., Buchanan & Tullock, supra note 38, at 85-96; Dennis C.
Mueller, Public Choice II 43-49 (1989). The unanimity requirement is said
to be interchangeable with the concept of Pareto efficiency, which requires
that in order for a policy decision to be acceptable, it must make at least
one person better off while leaving no one else in a worse position. See
Pritchard & Zywicki, supra note 52, at 449 n.164. But see Coleman, supra
note 97, at 284-86 (questioning the equivalence of unanimous vote and Pareto
exchange on the grounds that voting contains such ample opportunity for strategic
behavior that it cannot be said with confidence to reflect each person's
honest preferences for outcomes).
n99. See Pritchard & Zywicki, supra note 52, at 450.
n100. Clayton P. Gillette, The Exercise of Trumps by Decentralized Governments,
83 Va. L. Rev. 1347, 1350 (1997).
n101. These include constitutional conventions in which individuals foresee
great gains from the formation of a government, must agree only on issues
of process and relatively abstract substantive rights, and face considerable
uncertainty over their future preferences and positions. See Buchanan &
Tullock, supra note 38, at 76-81, 251; Dennis C. Mueller, Federalist Government
and Trumps, 83 Va. L. Rev. 1419, 1422-23 (1997).
n102. See Buchanan & Tullock, supra note 38, at 115; Gillette, supra
note 100, at 1373-74. Theorists also invoke super-majority requirements as
second-best alternatives to actual unanimity. See Pritchard & Zywicki,
supra note 52, at 450.
n103. See infra note 115.
n104. See, e.g., Elkin-Koren & Salzberger, supra note 56 (contending,
without necessarily favoring cyberspace self-governance, that collective
decisions are cheaper in cyberspace).
n105. Niva Elkin-Koren & Eli Salzberger, The Economic Analysis of Cyberspace:
Challenges Posed by Cyberspace to the Economic Approach Towards Law, at text
following note 144 (Dec. 1998) (unpublished manuscript, on file with author).
n106. It is likely that computer programs will soon act as "electronic agents"
to negotiate contract terms for many Internet transactions. See Margaret
Jane Radin, Humans, Computers, and Binding Commitment, 75 Ind. L.J. (forthcoming
2000) (draft available at <http://www.stanford.edu/class/law453/contracts/Texas92299rev.doc>).
Such negotiation, however, will be limited to standardized terms in routine
transactions, such as industrial procurement or enabling or denying web site
access to a prospective user depending on whether the user's privacy requirements
conform to the web site's privacy practices. See id.; Tim Berners-Lee, Weaving
the Web: The Original Design and Ultimate Destiny of the World Wide Web by
its Inventor 147 (1999) (describing Platform for Privacy Preferences Project).
Negotiation involving more complex issues of community governance will continue
to entail considerable real-time human input (at least for the foreseeable
n107. For a discussion of this quality of unanimity rules, see Coleman, supra
note 97, at 286-87.
n108. On the voting procedures for the establishment of new Usenet newsgroups,
see supra note 48. In reality, to say that voting down fringe newsgroups
would leave a mainstream Usenet overstates the situation. Usenet administrators
have created a hierarchy of alt. (alternative) newsgroups, which do not require
voter approval. But that need not be the case with respect to other cyberspace
issues and networks.
n109. See Dyson, supra note 22, at 109 (contrasting easy exit for citizens
of Internet governments with the "terrestrial government game" which is "all-or-nothing
(despite the possibility of loyal opposition)"); Johnson, supra note 48 (proposing
a system of cyberspace voting in which dissenters would be free to disconnect
from networks that adopt a rule they oppose). The classic text on the alternatives
of voting and exit in territorial institutions is Albert O. Hirschman, Exit,
Voice, and Loyalty (1970).
n110. Cyberians also contend that the threat of dissenter exit constrains
majority tyranny. See Johnson & Post, Civic Virtue, supra note 2, at
48 (asserting that no tyrannical majority can impose its will on an unwilling
minority in cyberspace communities, because users can freely exit and can
demand whatever degree of "due process" they wish as a condition to remaining);
cf. Richard A. Epstein, Exit Rights Under Federalism, 55 Law & Contemp.
Probs. 147 (1992) (depicting exit as a check on states' power in a federal
system). That proposition strikes me as highly fact-specific, at best. Communities,
both virtual and real, differ in the extent to which they wish to attract
new participants and keep existing ones. In addition, any constraint imposed
by a dissenter's threat of exit depends largely on how much the majority
values the particular dissenter's continued presence. Large corporate employers
may well extract significant rents for agreeing to forego moving to another
location; persistent gadflies, in both territorial and cyberspace communities,
will often happily be shown the door.
n111. As David Johnson, a leading proponent of cyberspace self-governance,
concedes: "While those who disagree with local rules are free to migrate,
many users will have invested very substantial amounts of time and effort
in establishing a particular online identity (building a reputation based
on a particular email address or Web page location, for example). And many
seek to participate actively in particular online cybercommunities, over
long periods of time. For them, separation from their cybercommunities would
impose a very substantial personal loss." David R. Johnson, Due Process and
Cyberjurisdiction, 2 J. Computer-Mediated Comm. (June 1996) <http://www.ascusc.org/jcmc/vol2/
issue1/>; see also Zittrain, supra note 47, at 504 n.10; Developments
in the Law: The Law of Cyberspace, 112 Harv. L. Rev. 1574, 1590-92 (1999)
[hereinafter Developments - Cyberspace].
n112. See Siegal, supra note 7, at 233 n.350.
n113. In reality, Usenet newsgroups that are voted down may now be established
within the "alt." (alternative) hierarchy.
n114. See Mark A. Lemley & David McGowan, Legal Implications of Network
Economic Effects, 86 Calif. L. Rev. 479, 488-89 (1998).
n115. In some cyberspace quarters, indeed, voting is viewed with no less
disdain than other structures of formal governance. The motto of the Internet
Engineering Task Force is "We reject Kings, Presidents, and voting; we seek
rough consensus and working code." David G. Post, Of Horses, Black Holes,
and Decentralized Law-Making in Cyberspace, at text accompanying note 25
(draft version Mar. 1, 1999) <http://www.temple.edu/lawschool/dpost/blackhole.html>.
n116. See, e.g., Developments - Cyberspace, supra note 111, at 1608-09; Gibbons,
supra note 2, at 518-23.
n117. See sources cited supra note 23.
n118. See, e.g., Gibbons, supra note 2, at 519 (contending that the model
of "governing cyberspace through informal social norms <elip>is the
most decentralized and democratic"); cf. Zittrain, supra note 47, at 499
(discussing generation of local cultures by early newsgroups).
n119. In addition, as Larry Lessig aptly notes, norms have a radically different
tenor than rules determined by vote. Norms often arise organically from what
people do within a close-knit community. The need to resolve issues by discussion
and ballot (or formal negotiation) generally signals the fall of a thick,
homogeneous community. See Lessig, supra note 12 , at 77-78.
n120. See, e.g., Dyson, supra note 22, at 8 (noting that "people who don't
like the rules can leave"); Gibbons, supra note 2, at 522 ("A violator of
the rules of a self-governing cyberspace community who is "excommunicated'
from the community can locate a new community and create a new identity there.").
n121. For an illuminating discussion contrasting this contractarian view
of groups with a communitarian view, see Gregory S. Alexander, Dilemmas of
Group Autonomy: Residential Associations and Community, 75 Cornell L. Rev.
1, 19-23 (1989).
n122. See Elinor Ostrom, Governing the Commons: The Evolution of Institutions
for Collective Action 88-89 (1990); Epstein, supra note 23, at 7-8; see also
Ellickson, supra note 23, at 283 (noting that people are increasingly likely
to turn to legal rules, rather than social norms, to resolve disputes "when
the social distance between them increases").
n123. See Siegal, supra note 7, at 191; see also Peter Kollock & Marc
Smith, Managing the Virtual Commons: Cooperation and Conflict in Computer
Communities, in Computer-Mediated Communication 109, 125 (Susan C. Herring
ed., 1996), available at (visited Dec. 25, 1999) <http://www.sscnet.ucla.edu/soc/csoc/papers/virtcomm>
(noting that as a result of flaming and off-topic postings, conflicts in
Usenet newsgroups are "fairly common").
n124. For discussion of disintegration of virtual communities, see Zittrain,
supra note 47, at 500-01. For an illuminating application of game theory
to group solidarity, see Eric A. Posner, The Regulation of Groups: The Influence
of Legal and Nonlegal Sanctions on Collective Action, 63 U. Chi. L. Rev.
n125. For an illuminating discussion of the prisoner's dilemma and other
game theoretic models in the context of the production of social norms, see
Kornhauser, supra note 23, at 659-68.
n126. See Coleman, supra note 97, at 253-54 (defining collective good). For
an illuminating discussion of this point in the context of Usenet newsgroups,
see Kollock & Smith, supra note 123, at 115-17.
n127. See Siegal, supra note 7, at 191 (noting prevalence and destructive
impact of flaming on Usenet newsgroups).
n128. Civility may not be a shared goal. In some instances, individuals may
take delight in disrupting and even in destroying newsgroup discussion by
flaming. See Siegal, supra note 7, at 191. When that occurs, civility will
be impossible to obtain without excluding such individuals from the group.
In game theory terms, such individuals enjoy a greater pay-off from universal
defection from the civility norm than any other alternative. See Kornhauser,
supra note 23, at 661-63 (presenting game theoretic analysis of distributional
differences and lack of consensus in context of group generation of social
n129. "Lurking" is a commonly used term for listening in on Internet discussion
without actively participating.
n130. See Coleman, supra note 97, at 255. For a discussion of Usenet "lurking"
(that is, failing actively to participate in discussion) as free riding,
see Kollock & Smith, supra note 123, at 116.
n131. See Kollock & Smith, supra note 123, at 117 (noting temptation
among Usenet newsgroup discussants "to free-ride on others' efforts to maintain
norms of civility while violating those norms [themselves]").
n132. See Daphna Lewinsohn-Zamir, Consumer Preferences, Citizen Preferences,
and the Provision of Public Goods, 108 Yale L.J. 377, 392-93 (1998) (discussing
role of greed and hopelessness underlying prisoner's dilemma defection).
n133. Repeated or ongoing business dealings, or simply situations in which
an individual or business obtains benefits from a reputation for cooperation
also diminish incentives to defect. See Andrew Rutten, Anarchy, Order, and
the Law: A Post-Hobbesian View, 82 Cornell L. Rev. 1150, 1155-56 (1997);
Stewart Macaulay, Non-Contractual Relations in Business: A Preliminary Study,
28 Am. Soc. Rev. 55, 65 (1963).
n134. See Ellickson, supra note 23, at 164-66; Rutten, supra note 23, at
1155 (noting that the prisoner's dilemma is not applicable when transactions
occur within "a rich web of social relations").
n135. Such technical devices, known as "kill files" or "bozo filters" have
the disadvantage that other participants not using a filter and not subject
to the filter may view the offending post and comment on it. See Kollock
& Smith, supra note 123, at 120.
n136. Punishing someone who does not conform to a norm, whether by exclusion,
shaming, or some other sanction, is itself a public good for the community
that wants the norm enforced. Since it may be costly for individuals to sanction
others, norm enforcement also gives rise to a collective action problem.
See Michael Taylor, The Possibility of Cooperation 30 (1987); see also Steffen
Huck & Michael Kosfeld, Local Control: An Educational Model of Private
Enforcement of Public Rules, Tilburg University for Economic Research Discussion
Paper 126, at 2-3 (Oct. 1998) <http://ideas.uquam.ca/ideas/data/Papers/dgrkubcen1998126.html>
(noting that rational individuals aiming to maximize short-run payoffs will
never report deviant behavior to local authorities). Individuals are often,
but certainly not always, willing to engage in shaming the offender. But
especially when norm enforcement warrants more severe punishment, overcoming
the collective action problem typically requires the appointment of a leader
(or governing body) with the authority and willingness to select and impose
a sanction. For a fascinating account of a virtual community faced with such
a collective action problem following one of its member's "virtual rape"
of another, see Julian Dibbell, A Rape in Cyberspace: How an Evil Clown,
a Haitian Trickster Spirit, Two Wizards, and a Cast of Dozens Turned a Database
into a Society, in Internet Dreams: Archetypes, Myths, and Metaphors 293
(Mark Stefik ed., 1996).
n137. See Shapiro, supra note 49, at 121 (noting that, given mobility, "there
is little incentive to keep online associations intact"); Kollock & Smith,
supra note 123, at 119-20 (noting mobility's deleterious effect on Usenet
newsgroups); see also Buchanan & Tullock, supra note 38, at 114 (noting
that while mobility enables individuals to avoid losses from adverse collective
decisions, it also means that an individual will find it disadvantageous
"to invest too much time and effort in persuading his citizens to agree with
n138. See Ostrom, supra note 122, at 90 (noting that successful communities
require clearly defined boundaries in order to prevent outsiders from reaping
benefit of collective good or destroying it).
n139. Social norm theorists concede that the bottom-up generation of social
norms requires a relatively stable, close-knit community. See supra note
n140. See, e.g., Gibbons, supra note 2, at 490; Post & Johnson, Civic
Virtue, supra note 2, at 46-50; Post, Anarchy, supra note 2.
n141. See Post & Johnson, Civic Virtue, supra note 2, at 46-50.
n142. Dyson, supra note 22, at 109; see also Johnson, supra note 111 (contending
that a market in rule regimes will induce some Internet service providers
to accord subscribers due process rights before terminating a subscriber's
n143. See, e.g., The New York Times on the Web, Subscriber Agreement (visited
Jan. 5, 2000) <http://www.nytimes.com/subscribe/help/agree.html>.
n144. Such "click-wrap" agreements are currently of uncertain enforceability.
However, they would be enforceable under the proposed Uniform Computer Information
Transactions Act (UCITA), which the National Commissioners on Uniform State
Laws approved for presentation to state legislatures in July 1999. UCITA
is available at (visited Jan. 5, 2000) <http://www.law.upenn.edu/library/
ulc/ucita/citam99.htm>. Of course, true cyberanarchists would have to
find extralegal methods of enforcing such agreements, including technological
self-help and barring offenders from further access.
n145. See sources cited supra note 11.
n146. Such digital encryption rights management systems are commonly called
"trusted systems." Mark Gimbel, Note, Some Thoughts on the Implications of
Trusted Systems for Intellectual Property Law, 50 Stan. L. Rev. 1671 (1998);
Radin & Wagner, supra note 6, at 1315 (referring to trusted systems as
a "regime of technological self-enforcement" that is "anarchic rather than
n147. Web browsers, such as Netscape Navigator and Microsoft Internet Explorer,
contain software protocols ("cookies") that create files about web sites
that have been visited and that accept and save on the user's hard drive
data sent by a web site operator regarding the user's visit to the site.
See Paul M. Schwartz, Privacy and Democracy in Cyberspace, 52 Vand. L. Rev.
1609, 1629-31 (1999).
n148. Users would face significant restrictions in doing so under current
law. Recent federal legislation prohibits the circumvention of technological
measures designed to control online access to and uses of copyrighted works.
See Digital Millennium Copyright Act, Oct. 28, 1998, Pub. L. No. 105-304,
1, 112 Stat. 2860.
n149. Cf. Julie E. Cohen, Lochner in Cyberspace: The New Economic Orthodoxy
of "Rights Management", 97 Mich. L. Rev. 462, 529 (1998) (describing conventional
economic model of consumer power in mass-market transactions).
n150. I will not discuss another potential fault line in the cyberanarchist
claim: To the extent self-proclaimed cyberanarchists depend on the state,
rather than technological self-help, to enforce cyberspace contracts and
even to protect computer network installations from real world theft and
trespass, cyberanarchists are neither truly anarchists nor, arguably, believers
in cyberspace independence. See Radin & Wagner, supra note 6, at 1297.
n151. See supra note 147 (describing "cookies").
n152. Cf. Shapiro, supra note 49, at 95-96 (describing "screen bias" effect
of Microsoft Explorer interface leading users to Microsoft corporate partner
web sites and noting that few users will reconfigure default desktops).
n153. See Todd Rakoff, Contracts of Adhesion: An Essay in Reconstruction,
96 Harv. L. Rev. 1174, 1179 (1983); see also Restatement (Second) of Contracts
211 cmt. b (1979) ("Customers do not in fact ordinarily understand or even
read the standard terms.").
n154. See Restatement (Second) of Contracts 211 (1981).
n155. Of course, cyberanarchists might also make efficiency arguments favoring
cyberspace self-governance. But individual liberty, not efficiency, stands
at the root of their liberal perfection claim.
n156. See Cohen, supra note 149, at 488.
n157. See J. Bradford DeLong & A. Michael Froomkin, Speculative Microeconomics
for Tomorrow's Economy, in Internet Publishing and Beyond: The Economics
of Digital Information and Intellectual Property, at text beetween notes
14 & 15 (Deborah Hurley et al. eds., forthcoming 2000) (discussing absence
of transparency in the information-based sectors of the digital economy);
Rakoff, supra note 153, at 1221-27 (contrasting incentives on adhesion contract
drafters to contain even remote contingencies with consumers' difficulty
in assessing such risks).
n158. As Todd Rakoff points out, a firm's internal hierarchical and organizational
structure provides a significant incentive for firms to employ standard contracts.
See Rakoff, supra note 153, at 1222-25.
n159. See David J. Teece & Mary Coleman, The Meaning of Monopoly: Antitrust
Analysis in High-Technology Industries, 43 Antitrust Bull. 801, 812 (1998)
(discussing premium on dynamic capabilities and firm flexibility in the high-tech
market). Web site standard contracts often provide that the producer may
unilaterally modify the terms and that the user is deemed to agree to such
modifications if she continues to visit the site or fails to cancel her subscription.
See, e.g., The New York Times on the Web, Subscriber Agreement PP 1.2, 1.3
(visited Jan. 5, 2000) <http:// www.nytimes.com/subscribe/help/agree.html>.
n160. Cf. Lessig, supra note 12, at 181 (favoring open regulation through
law over regulation hidden within code because "only when regulation is transparent
is a political response possible").
n161. See Cohen, supra note 149, at 520-21.
n162. Of course, an enterprising lawyer might set up a web site to sell his
advice regarding alternative rule regimes (and we can assume that such activity
would be permitted in a cyberanarchist world). But collective action costs
would apply to that scenario as well. Legal advice is a nonexcludable, nonconsumable
quasi-public good. Accordingly, unless users banded together to pay for the
advice, the lawyer would be unable recover his costs in producing it.
n163. Developing Internet technology might enhance user ability to shop for
terms. Users might deploy program code, known as an electronic agent, to
identify disfavored web site terms. See Radin, supra note 106. Upon identifying
the terms, the agent would then direct the user's browser not to enter the
offending site or conceivably would submit a counteroffer to the site proprietor
(or the proprietor's electronic agent). It is too soon to tell how such technology
might develop, whether producers will deploy technology to circumvent it,
or whether it would compel producers to forgo the institutional benefits
of standard contracts (or overcome producers' possible market power).
n164. A "cookie" consists of information regarding a users' web site visits
that resides on the user's hard drive for use by the web site operator whenever
the user visits the site.
n165. For example, producers might grant more advantageous terms in business-to-business
Internet transactions, which make up a growing portion of electronic commerce.
See Radin, supra note 106.
n166. Many producers will resist even this level of flexibility towards consumer
demand. In many cases producers' "institutional costs of changing forms and
procedures are greater than would be warranted by the profits to be made
by satisfying the demands of marginal customers." Rakoff, supra note 153,
at 1226 n.190. In addition, a provider that provides preferential terms for
some customers may face an adverse selection problem, whereby the most costly
customers will be drawn to that provider. See Einer Elhauge, Allocating Health
Care Morally, 82 Calif. L. Rev. 1449, 1477 (1994) (discussing scenario in
which high-risk subscribers flock to insurance company that offers preferential
terms). For example, an Internet service provider that unilaterally acceded
to prospective subscribers' demands that it accord them due process rights
before terminating their subscription might well attract particularly troublesome
subscribers who have particular reason to want such rights.
n167. See Teece & Coleman, supra note 159, at 828-31 (1998) (discussing
switching costs in the market for high-tech consumer goods).
n168. See Daniel Kahneman et al., Anomalies: The Endowment Effect, Loss Aversion,
and Status Quo Bias, J. Econ. Persp., Winter 1991, at 193.
n169. See supra note 111 and accompanying text.
n170. Status quo bias also impedes user ability to negotiate changes in provider
rules. See Russell Korobkin, Inertia and Preference in Contract Negotiation:
The Psychological Power of Default Rules and Form Terms, 51 Vand. L. Rev.
n171. The same is true with regard to starting a new forum or virtual community.
Such an enterprise may require a significant investment of time, energy,
and money. It may also depend on the metanorms within a given network for
accepting new sites. If the network is unwilling to allow the new site, then
its would-be creators must exit the network, with the attendant costs and
possible loss of network benefits.
n172. One recent day provides an example: On October 5, 1999, the New York
Times reported (1) the acquisition by MCI WorldCom, the nation's second largest
long-distance carrier, of Sprint Corp., the nation's third largest long-distance
carrier and a major purveyor of wireless voice, video, and data transmission
services; (2) the acquisition by Clear Channel Communications, the nation's
largest owner of radio stations, of AMFM, Inc., the nation's second largest
owner of radio stations; and (3) the acquisition by Travelocity, an online
travel service, of a smaller rival, Preview Travel, vaulting Travelocity
past Microsoft's Expedia to become the largest travel site on the Web. See
MCI WorldCom to Buy Sprint in $ 115 Billion Deal, N.Y. Times, Oct. 5, 1999,
at A1; Bill Carter, The Leader in U.S. Radio to Buy No. 2, N.Y. Times, Oct.
5, 1999, at C1; Saul Hansell, Travelocity Makes a Deal to Dominate Web Market,
N.Y. Times, Oct. 5, 1999, at C7.
Of even greater likely significance for cyberspace concentration is American
Online's acquisition of Time-Warner, announced just before this Article went
n173. Cohen, supra note 149, at 522; see also Philip E. Agre, supra note
5. Apparently, only more vigilant federal antitrust regulation and telecommunications
service ownership restrictions, no doubt anathema to cyberanarchists, will
maintain even a modicum of diversity among the major players in cyberspace
communication in the coming decades. Unfortunately, most regulation in this
area focuses on economic efficiency rather than expressive diversity. The
Federal Communications Commission, for example, has recently relaxed ownership
restrictions, enabling heavy concentration in one industry, such as cable
television, if such concentration holds the promise of increased competition
and thus lower prices in another, such as local telephone service. See Stephen
Labaton, Ownership Rules in Cable Industry Loosened by F.C.C., N.Y. Times,
Oct. 9, 1999, at A1.
n174. For a study of such constraints in traditional media, see Neil Gandal
& David J. Salant, Hollygopoly: Oligopolistic Competition for (Hollywood)
Movies, 40 Antitrust Bull. 699 (1995). For a survey of the empirical and
theoretical literature on oligopoly, see F.M. Scherer & David Ross, Industrial
Market Structure and Economic Performance 199-315 (3d ed. 1990).
n175. See Michael L. Katz & Carl Shapiro, Systems Competition and Network
Effects, 8 J. Econ. Persp. 93 (1994); Lemley & McGowan, supra note 114,
at 488-90, 551-52. While economies of scale are a producer-side characteristic
describing increasing returns as inputs are scaled up, network effects are
a demand-side phenomenon associated with value to the consumer. See Teece
& Coleman, supra note 159, at 814.
n176. For a discussion of the role of network effects in leading to market
dominance for Microsoft operating systems, see Shapiro, supra note 49, at
n177. As Bill Gates presciently describes the Internet's near future: "If
a stranger <elip>wants to send you [electronic] mail, [he'll] have
to put up a certain amount of money in order to get you to read it because
your time is the valuable resource." Bill Gates, Public Lecture (Nov. 1995),
quoted in Shapiro, supra note 49, at 130.
n178. See Shapiro, supra note 49, at 98-99 (describing efforts of search
engine companies to keep users at portal sites); see also A CBS Internet
Portal Builds In Data for Ads, N.Y. Times, Oct. 6, 1999, at C14 (reporting
that in order to induce Internet users to visit its new portal, CBS will
expend $ 70 million in advertising and will give visitors chances to win
n179. See Wu, supra note 10, at 1179 (concluding aptly that given the increasing
cost of attracting users to one's web site, "describing today's World Wide
Web as a free and open forum of equal speech is a bit delusional").
n180. See Edward D. Horwitz, The Ascent of Content, in The Future of the
Electronic Marketplace 91, 96-101 (Derek Leebaert ed. 1998) [hereinafter
n181. See Shapiro, supra note 49, at 99-100 (discussing WebTV, a technology
purchased by Microsoft in 1997, that offers basic Internet access over a
television and a menu of channels accessible through a specially designed
remote control); see also Andrew Pollack, Feature Film to Be Produced for
Release on Web, N.Y. Times, Aug. 24, 1999, at C1. Our hardware gateway to
cyberspace will also resemble some combination of computer, high-definition
television, and digital radio. See Is It Tellynet or Netelly? If Ever Two
Media Were Meant to Wed, They are Television and the Internet, The Economist,
Dec. 13-19, 1997, at supp. 10 (discussing NetChannel, a Web-enhanced television
service that can be personalized for each viewer).
n182. Production costs will not be the only factor favoring commercial players.
At least for the near future it appears that broadband networks will be built
with the lion's share of carrying capacity downstream to the Internet user,
leaving relatively little bandwith for user-initiated video programming.
n183. See Shapiro, supra note 49, at 181 (noting that "without the brand
recognition or the advertising budget to compete with the big online players,
[individuals, nonprofits, and small commercial outlets] will likely be about
as prominent as the outcasts on public access cable or ham radio").
n184. To be certain, concentration does not necessarily mean an absence of
competition. But given producers' institutional commitment to rationalizing
the rules governing user access and the difficulty in combating otherwise
rational consumer apathy in order to sell new standard terms, any competition
between dominant cyberspace players will likely focus on price and content
attractiveness rather than conditions of use. See Rakoff, supra note 153,
at 1226-27; see also George A. Akerlof, The Market for "Lemons": Quality
Uncertainty and the Market Mechanism, 84 Q.J. Econ. 488 (1970) (showing that
producers may find it prohibitively costly to inform consumers of higher-quality
product and thus may tend to settle on lower-quality, lower-price product).
n185. Cf. Richard A. Epstein, Holdouts, Externalities, and the Single Owner:
One More Salute to Ronald Coase, 36 J.L. & Econ. 553, 555 (1993) (contending
that in a Coasean universe of zero transaction costs, "the choice of legal
rules <elip>becomes a matter of supreme indifference" because private
parties can bargain legal rules away).
n186. See Sunstein, supra note 87, at 14-16, 21-24.
n187. See id. at 24.
n188. See C. Edwin Baker, The Media That Citizens Need, 147 U. Pa. L. Rev.
317, 333 n.31 (1998) (presenting this argument in the context of liberal
pluralist and republican critiques of the neoclassical model of consumer
sovereignty); Sunstein, supra note 87, at 13-31.
n189. See Sunstein, supra note 87, at 13-31.
n190. See J<um u>rgen Habermas, Between Facts and Norms: Contributions
to a Discourse Theory of Law and Democracy (William Rehg trans., MIT Press
n191. See Suzanne P. Weisband et al., Computer-Mediated Communication and
Social Information: Status Salience and Status Differences, 38 Acad. Mgmt.
J. 1124, 1124 (1995) ("Many studies have found that groups that interact
by computer-mediated communication<elip>are less prone to domination
by high-status members than are face-to-face groups."), quoted in Gibbons,
supra note 2, at 520 n.304.
n192. Internet videophones are already in use. See Matt Richtel, Videophone
Call-Ins on a Cable TV Channel, N.Y. Times, Oct. 22, 1998, at G3.
n193. See Lessig, supra note 12, at 41 (discussing plans to deploy and build
compelling incentives for individuals to use digital identification on the
n194. Schwartz, supra note 147, at 1621-31 (detailing methods of obtaining
user profile data).
n195. See Judge Rejects State's Request to Block Sale of Drivers' Photos,
N.Y. Times on the Web (Feb. 13, 1999) <http://www.nytimes.com/library/tech/99/02/biztech/articles/14phot.html>
(reporting that South Carolina judge refused to block state officials' sale
of driver's license photos to a company that wants to use them in an antifraud
system for businesses). The Driver's Privacy Protection Act of 1994, 18 U.S.C.
2721-2725 (1994 & Supp. II 1996), forbids states from disclosing an individual's
driver's license photograph, as well as other personal information. See id.
2721(a). However, that prohibition does not apply if the disclosure falls
within one of 14 categories of permissible uses or if the state has established
an "opt-out" procedure and the individual has not availed herself of the
opportunity to prohibit disclosure. See id. 2721(b).
n196. See Steve Lohr, Seizing the Initiative on Privacy: On-Line Industry
Presses Its Case for Self-Regulation, N.Y. Times, Oct. 11, 1999, at C1, C8
(reporting concerns regarding "on-line profiling" and "digital red-lining").
n197. See supra notes 177-83. For an illuminating "dystopic commodified vision"
of future cyberspace, see Margaret Jane Radin, Property Evolving in Cyberspace,
15 J.L. & Com. 509, 521-22 (1996).
n198. See Shapiro, supra note 49, at 124-32 (discussing "freedom from speech").
n199. See Walker & Akdeniz, supra note 48, at 501.
n200. See Gibbons, supra note 2, at 497; see also National Telecomms. and
Info. Admin., US. Dep't of Commerce, Falling Through the Net: Defining the
Digital Divide viii (July 1999), available at <http://www.ntia.doc.gov/ntiahome/digitaldivide>
[hereinafter Digital Divide] (finding significant disparities in Internet
access across wealth, ethnic, and geographic lines (but not gender) in the
n201. See Saskia Sassen, On the Internet and Sovereignty, 5 Ind. J. Global
Legal Stud. 545, 551-54 (1998) (discussing emergent "cyber-segmentation").
n202. Significantly, such a study would have to address potential, as well
as current, advancement of liberal democratic ideals; the Internet will revolutionize
government administration, not merely provide a "bottom-up" alternative to
n203. See supra notes 21-22 and accompanying text.
n204. Johnson & Post, Law and Borders, supra note 2, at 1393.
n205. For an illuminating discussion, see Will Kymlicka, Multicultural Citizenship:
A Liberal Theory of Minority Rights, 181-92 (1995).
n206. See Barlow, supra note 1; Johnson & Post, Law and Borders, supra
note 2, at 1387-90.
n207. See Johnson & Post, Law and Borders, supra note 2, at 1387-90.
n208. As Larry Lessig colorfully puts it:
While they are in that place, cyberspace, they are also here. They are at
a terminal screen, eating chips, ignoring the phone. They are downstairs
on the computer, late at night, while their husbands are asleep. They are
at work, or at cyber cafes, or in a computer lab. They live this life there,
while here. And then at some point in the day, they jack out, and are only
here. They step up from the machine, in a bit of a daze; they turn around.
They have returned.
Lawrence Lessig, The Zones of Cyberspace, 48 Stan. L. Rev. 1403, 1403 (1996).
n209. See Mark D. Rosen, The Outer Limits of Community Self-Governance in
Residential Associations, Municipalities, and Indian Country: A Liberal Theory,
84 Va. L. Rev. 1053, 1056-59 (1998).
n210. See id.
n211. See id. at 1059-61 (summarizing the skeptical view, and ultimately
disagreeing with it); see also Kymlicka, supra note 205, at 167 (complaining
that "contemporary liberals <elip>have become more reluctant to impose
liberalism on foreign countries, but more willing to impose liberalism on
n212. Rawls, supra note 66, at 791.
n213. Christopher L. Eisgruber, The Constitutional Value of Assimilation,
96 Colum. L. Rev. 87, 103 (1996). Rawls also supports this argument, suggesting
that common citizenship will benefit minorities by promoting the political
virtues of "reasonableness and a sense of fairness, a spirit of compromise
and a readiness to meet others halfway." John Rawls, The Idea of an Overlapping
Consensus, 7 Oxford J. Legal Stud. 1, 21 (1987).
n214. See, e.g., Abner S. Greene, Kiryas Joel and Two Mistakes About Equality,
96 Colum. L. Rev. 1, 13-16 (1996); Rosen, supra note 209, at 1089-1106.
n215. See, e.g., Greene, supra note 214, at 49-51; Rosen, supra note 209,
n216. See, e.g., Posner, supra note 124, at 143-44.
n217. See Kymlicka, supra note 205, at 174-76, 192.
n218. Rosen, supra note 209, at 1097 (quoting John Rawls, Political Liberalism
n219. See supra text accompanying notes 140-42.
n220. See Charles M. Tiebout, A Pure Theory of Local Expenditures, 64 J.
Pol. Econ. 416 (1956). For surveys of literature addressing Tiebout's hypothesis,
see, e.g., Mueller, supra note 98, at 149-76. For references to Tiebout in
the cyberspace literature, see Burk, supra note 17, at 962-69; Johnson &
Post, Law and Borders, supra note 2, at 1399 n.102.
n221. Mueller, supra note 101, at 1426.
n222. See, e.g., Harper & Row, Publishers Inc. v. Nation Enters., 471
U.S. 539, 605 (1985) (Brennan, J., dissenting) (emphasizing that "the robust
debate of public issues" is the "essence of self-government"); see also Holmes,
supra note 32 , at 179-81 (discussing John Stuart Mills' thesis that liberal
state requires a robust exchange of view.).
n223. See Sunstein, supra note 87, at 186-87.
n224. See Dennis F. Thompson, The Democratic Citizen 60-62 (1970).
n225. See Julian N. Eule & Jonathan D. Varat, Transporting First Amendment
Norms to the Private Sector: With Every Wish There Comes a Curse, 45 UCLA
L. Rev. 1537, 1617-27 (1998).
n226. See Cass R. Sunstein, Social Norms and Social Roles, 96 Colum. L. Rev.
n227. See Neil Weinstock Netanel, Copyright and a Democratic Civil Society,
106 Yale L.J. 283, 342-344 (1996). The term "democratic culture" is from
Robert A. Dahl, A Preface to Economic Democracy 30 (1985).
n228. See, e.g., Dale v. Boy Scouts of Am., 706 A.2d 270, 283 (N.J. Super.
Ct. App. Div. 1998), cert. granted, No. 99-699, 2000 U.S. Lexis 509 (Jan.
14, 2000) ("It is well-settled that courts will invalidate an expulsion from
a private organization when the expulsion is based on reasons that violate
public policy." (quoting Rutledge v. Gulian, 459 A.2d 680 (N.J. Sup. Ct.
1983)), aff'd, 734 A.2d 1196 (N.J. 1999))).
n229. See Lemley, supra note 19, at 1277-81 (noting ubiquitous spillover
effects from cyberspace activity to the offline world).