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.
Governments derive their just powers from the consent of the governed. You
have neither solicited nor received ours. We did not invite you. You do not
know us, nor do you know our world. Cyberspace does not lie within your borders.
Do not think that you can build it, as though it were a public construction
project. You cannot. It is an act of nature and it grows itself through our
- John Perry Barlow, A Declaration of the Independence of Cyberspace
John Perry Barlow's impassioned call for cyberspace independence cannot
be dismissed as the mere theatrical whimsy of a former lyricist for the Grateful
Dead. The idea that cyberspace should be presumptively self-governing has
resounded in thoughtful scholarship. n2 It has also colored federal
policy regarding electronic commerce. A 1997 Presidential Directive, which
heralded the dramatic withdrawal of the United States government from significant
portions of Internet administration, n3 instructs federal agencies
to "recognize the unique qualities of the Internet, including its decentralized
nature and its tradition of bottom-up governance." n4
[*399] Cyberspace is a burgeoning realm of communication taking place
over a global web of linked computers. n5 John Perry Barlow notwithstanding,
that realm is firmly embedded in a foundation of state institutions, subsidies,
and law. n6 But within the interstices of state intervention and support,
cyberspace also offers a rich field for private ordering. Rule making within
cyberspace reflects the highly decentralized character of cyberspace's communicative
matrix. It finds expression in myriad forms and settings, including web site
network administration guidelines; listserv moderator filtering; Internet
service provider contracts; Usenet voting procedures; n7 local area
network acceptable use policies; n8 newsgroup [*400] frequently-asked
question files; decisions of virtual magistrates; n9 help manners
and programmers' manuals for multiuser dimensions; n10 the code embedded
in browsers, servers, and digital content; n11 and the technical protocols
that enable intra-and internetwork communication. All such norms shape and
delimit the possibilities for human interaction and commerce in cyberspace.
In that sense, they have much the same effect as formal state-promulgated
As cyberspace grows to encompass ever-increasing areas of human thought,
interaction, and commerce, it regularly comingles with the sorts of "real
world" activity, ranging from product sales to criminal conspiracy, commonly
subject to state regulation. As a result, courts and legislators have increasingly
applied real world, state-promulgated law to cyberspace activity, steadily
constricting the domain of semiautonomous cyberspace rule making.
n13 But despite these incursions, supporters of cyberspace [*401]
self-governance (I will call them "cyberians") insist that cyberspace rule
making is far more than a set of isolated local arrangements. For them, cyberspace
is partly a model and partly a metaphor for a fundamental restructuring of
our political institutions. Cyberians view cyberspace as a realm in which
"bottom-up private ordering" can and, indeed, should supplant rule by the
distant, sluggish, and unresponsive bureaucratic state. n14 By its
very architecture and global reach, they contend, cyberspace will ultimately
elude the strictures of state-created law, challenging the efficacy and theoretical
underpinnings of the territorial sovereign state. n15
Cyberians raise three types of arguments in support of their broad vision
of cyberspace self-governance. Their first argument is that cyberspace independence
will maximize welfare. Cyberians assert that the multiple, decentralized,
interconnected sites for digital communication that make up cyberspace create
greatly enhanced possibilities for flexible decision making, transacting,
and norm creation that more efficiently allocate resources than centralized,
bureaucratic state regulation. n16 Second, cyberians claim that state
regulation of cyberspace is essentially futile and thus the state should
not attempt it. Given the decentralized character and global reach of digital
network communication, any nation-state's effort to impose its stamp on that
communication will simply be met by regulatory arbitrage and evasion.
n17 Third, cyberians argue that cyberspace [*402] self-governance
more fully realizes liberal democratic ideals than does regulation by even
a liberal democratic nation-state. They contend that in contrast to "top-down"
state regulation, cyberspace rule making epitomizes a "Jeffersonian mode
of law-making," a political order based in the primacy of local norms and
individual choice. n18
The first two cyberian claims, regarding the purported efficiency benefits
and unregulability of cyberspace "private ordering," have elsewhere been
the subject of trenchant - to my mind, withering - critique. n19 My
focus will be on the third cyberian claim, that a self-governing cyberspace
would more fully realize liberal democratic ideals.
This claim has two parallel components. The first component, which I will
call the claim of liberal perfection, views cyberspace norm creation as the
paradigm of liberal rule. It contends that cyberspace self-governance more
fully embodies the liberal democratic goals of individual liberty, popular
sovereignty, and the consent of the governed than does the "top-down" administration
of even the most democratic nation-states. n20 Cyberians view territorial
representative government as a fundamentally flawed attempt to implement
liberal democratic ideals. Representative democracy might be the best we
can achieve in "real space," where collective action, information, negotiation,
and mobility costs make unmediated forms of governance highly impractical.
But, cyberians posit, the global networks of digital communication and data
storage that underlie cyberspace create unprecedented possibilities to drastically
reduce those costs. They offer a wealth of information, instantaneous and
inexpensive mass communication, and a seemingly infinite choice of virtual
communities, discussion groups, and rule regimes. As a result, cyberians
claim, cyberspace not only constitutes a jurisdiction apart from territorial
nation-states; it is also a fundamentally more liberal and democratic one.
The second component, which I will call the claim of community autonomy,
focuses not on cyberspace per se, but on group rights within the liberal
state. A truly liberal state, it contends, grants considerable [*403]
autonomy to communities and associations that wish to be self-governing.
Accordingly, even if virtual communities and rule regimes do not represent
superior forms of political organization--indeed, even if they are autocratic
and illiberal - liberal nation-states must give them ample room for self-governance.
n21 Cyberspace, cyberians assert, is a self-defining community. State
regulation amounts to a "colonial" usurpation of local norms and authority.
The cyberian claims of liberal perfection and community autonomy pose an
intriguing challenge to traditional liberal democratic theory. But I believe
that challenge ultimately fails. I will argue that an untrammeled cyberspace
would prove inimical to the ideals of liberal democracy and indeed that selective
state regulation of cyberspace is warranted to protect and promote those
ideals. I will also propose that in the absence of regulation by a democratic
state, cyberians would be forced to invent a quasi-state institution to legislate
and enforce liberal democratic metanorms governing critical aspects of cyberspace
organization and operation. Even if cyberians were successfully to establish
such an institution, it would, at best, suffer from much the same democratic
deficit that, according to cyberians, characterizes nation-state representative
With those parameters in mind, Part I of this Article will briefly examine
the basic elements of liberal democracy most pertinent to the cyberian claim
of liberal perfection. It will be particularly important to unpack the liberal
from the democratic component of liberal democracy. Cyberians often conflate
the two components. But, at bottom, the liberal perfection claim contends
more that cyberspace self-governance represents an extrademocratic vehicle
for actualizing liberalism than that it constitutes a purer form of democracy.
As cyberians describe it, cyberspace presents opportunities for translating
individual preferences into collective decision in ways that, for the most
part, resemble more the operation of the market than the polis.
[*404] Following this conceptual foundation, Part II will elucidate
and critically examine the cyberian claim of liberal perfection. The claim
consists of three variants or subclaims. Each subclaim presents an alternative
vision of cyberspace self-governance, and each overlaps and to some extent
contradicts the others.
What I label the "cyberpopulist" claim does focus largely on the democracy
side of the liberal democracy equation. It views cyberspace as a mechanism
for direct democracy. The Internet, cyberpopulists assert, has the potential
to serve as an electronic town hall, an arena where individuals can deliberate
and vote on issues of mutual concern. Such online plebicites might transpire
on the level of virtual discussion groups, networks, or the entire Internet.
In that manner, decision-making power will devolve from self-regarding elected
officials and return to the people.
What I refer to as the "cybersyndicalist" claim sees the multifarious virtual
communities developed through online discussion groups as the principal sites
for the realization of liberal democracy. Through ongoing interaction and
discussion, cybersyndicalists maintain, each discussion group generates a
unique set of social norms reflecting the values and preferences of its participants.
Expanding upon recent literature touting the purported efficiency benefits
of the "bottom-up" generation of social norms, n23 cybersyndicalists
portray virtual communities as the paradigms of consensual self-governance.
What I call the "cyberanarchist" claim anchors cyberspace self-governance
in the spontaneous order arising from freedom of exit, rather than in community
norm generation. Cyberanarchists place singular emphasis on each individual's
"real freedom of movement" among diverse "rule spaces," rather than on the
consensual, discursive formation of social norms by members of a close-knit
community. n24 It does not matter whether [*405] online
discussion groups or even entire networks of such groups are internally autocratic,
since individuals can always choose "their own more congenial online homes."
n25 Cyberanarchists, then, see cyberspace as a market of alternative
rule regimes. It is the ease of exit and the abundance of alternatives -
in essence consumer choice in conditions approaching perfect competition--that
bring to fruition the liberal ideals of liberty and consent.
Part II also presents my critique of the cyberpopulist, cybersyndicalist,
and cyberanarchist claims. I will put forth four basic propositions. First,
the cyberians give insufficient weight to representative democracy's support
for liberal ideals, incorrectly viewing representative democracy as a mere
second-best alternative to nonmediated systems for effecting individual choice.
Second, the cyberians greatly exaggerate the propensity of online communication
and communicative networks to support their visions of self-governance. As
cyberians correctly assert, cyberspace is characterized by considerable freedom
of movement. But that freedom of movement significantly undermines the stability
required for community generation of social norms, and thus cuts against
the cyberpopulist and cybersyndicalist claims. Indeed, given the unraveling
of bottom-up online communities and the growing prevalence of autocratic
determination of local online norms, the cyberanarchists present the only
potentially viable claim for cyberspace self-governance. At the same time,
however, online freedom of movement - both exiting from existing rule spaces
and finding or establishing new ones--may be significantly more costly than
cyberanarchists assume. As a result, liberal ideals can be realized only
through the enforcement of metanorms that protect those dissenters for whom
exit is a less than tenable alternative.
Third, the cyberanarchist claim of liberal "government" by individual decision
making is vulnerable to many of the standard criticisms of the Hayekian view
of the market as fundamentally superior to democratic institutions.
n26 In cyberspace, no less than in real space, consumer decisions may represent
an impoverished account of individuals' true preferences for many types of
social goods. By the same token, market failure is no less endemic to online
decision making than to its offline counterpart. In particular, the cyberanarchist
vision would countenance some of the very [*406] externalities
that liberal democracy seeks to minimize, including status discrimination
and the suppression of minority viewpoints.
Finally, cyberians give insufficient weight to the distributive function
of liberal government. Liberal ideals can be realized only if the incidents
of citizenship are distributed among all citizens. Yet opportunities to communicate,
process information, and even gain access to cyberspace are vastly unequal.
The cyberian vision lacks a vehicle to provide such citizenship resources
to those who currently lack them. Without state intervention, therefore,
cyberspace self-governance will, at best, resemble the Athenian democracy
of the privileged few, not participatory liberalism.
Part III considers the cyberian claim for community self-governance within
the liberal state. Political liberalism, I readily concede, does contain
room for community and associative autonomy. But liberalism rightly imposes
limits on that autonomy, and there is nothing about the nature of virtual
communities to justify granting them greater leeway than their territorial
counterparts. In fact, there may well be reason to impose greater restrictions
on virtual communities.
Part IV discusses a number of areas in which a democratic state might regulate
cyberspace activity or provide resources for online actors in order to further
liberal ideals. These include countering status and viewpoint discrimination,
protecting Internet user privacy, and promoting a broad distribution of citizenship
resources. In line with my discussion in Part III, my conclusion is not that
state intervention is always appropriate. Rather, in each instance the benefits
of state intervention must be balanced against possible harms to speech and
association interests that themselves have inherent value for liberal democracy.
Part V raises and rejects the possibility that cyberians might set up their
own representative body to create and enforce metarules designed to promote
liberal democratic ideals. It concludes that democratic institutions of territorial
nation-states are far more likely effectively to protect liberal rights and
to further the liberal ideal of government by consent of the governed.
Part VI briefly address an additional cyberian political claim. That claim
invokes liberal and liberal democratic principles on an international level,
augmenting cyberian claims regarding the failings of nation-state territorial
democracy. Cyberians argue that a nation-state's imposition of jurisdiction
over persons who reside outside the nation-state and who therefore lack a
direct say in determining that nation-state's leadership or laws runs contrary
to the fundamental liberal democratic principle of government by consent
of the governed. n27 They also suggest that the democratic deficit
plaguing domestic governments is exacerbated in the [*407] international
arena, where international agencies are even further removed from those they
seek to regulate. n28
I. Liberal Democracy
Cyberians maintain that cyberspace self-governance represents a fuller expression
of liberal democratic principles than do the constitutional, representative
democracies of territorial nation-states. To assess that claim, it will be
helpful to explicate briefly the principles underlying liberal democracy.
That, of course, is no simple task. As Don Herzog has aptly remarked, "liberalism
is a tradition, not a single view, and like any other tradition it is best
conceived of as a family of disagreements." n29 What follows, then,
is a brief restatement of those elements of liberal democracy most pertinent
to the cyberian claim. In particular, I will adumbrate the basic fault lines
in liberal democratic theory to locate the cyberian claim within its theoretic
Liberal democracy is a political system with representative governments elected
by popular majority, the rule of law enshrined to protect individuals and
minorities, and a significant sector of economic, associational, and communicative
activity that is largely autonomous from government control. n30 It
rests upon the principles of individual liberty, civic equality, popular
sovereignty, and government by the consent of the governed. Liberal democracy's
institutional characteristics and principles are mutually dependent. Popular
sovereignty exercised through the periodic election of representatives, together
with a representative government constrained by the rule of law, a separation
of powers, and constitutional rights, helps to secure individual liberty.
n31 Concomitantly, individual liberties, civic equality, and limited
government support democratic [*408] governance. They undergird
a vibrant civil society, a prerequisite for the effective exercise of popular
Yet there is a certain - some would say fundamental - tension between liberalism
and democracy. While democracy aims to actualize the popular will, liberalism
gives primacy to individual liberty. Or more precisely, while democracy promotes
public liberty, the right to belong to a self-governing community, liberalism
champions personal liberty, in the "negative" sense of the absence of interference
with individual choice. n32 A democratic order demands individual
involvement in the political process and adherence to collective decision.
A liberal order enables individuals to pursue their private ends in the manner
of their own choosing.
I do not mean to make too much of this dichotomy. To be certain, personal
(negative) liberty and limited government are central to liberal thought.
But modern liberalism, stretching back at least to the American Revolution,
also bears the imprint of the democracy component of liberal democracy.
n33 In particular, most liberals would place civic equality, in the sense
of both equal treatment under the law and equal right to participate in political
life, squarely within the pantheon of liberal rights. n34 Numerous
liberal theorists, including John Rawls, Stephen Holmes, and John Stuart
Mill in his later work, also insist that a liberal government must secure
the necessary social and material conditions for individuals' realization
of liberal rights, not merely to accord those rights formal recognition.
[*409] Nevertheless, expanding upon Locke and much of Mill's earlier
writing, neoliberals, including F.A. Hayek, Robert Nozick, and James Buchanan,
have insisted upon a radical separation between liberalism and democracy.
n36 In traditional Lockean liberalism, individual liberties conceptually
precede the state (and, in Locke's metaphoric account, they chronologically
precede the state as well). Individuals decide, or rational individuals would
decide, to establish a state to serve their private ends. The state thus
arises from, and its legitimacy depends upon, the express or tacit consent
of individuals. The state, in turn, may rightfully exercise its authority
only in accordance with the terms of that "social contract."
For traditional liberals and liberal democrats, the "social contract" yields
two basic understandings of the state. The first is limited government. Since
individuals consent to a state to serve their private ends, the social contract
limits government authority to securing individuals' rights, persons, and
property (although modern liberals differ significantly on the extent to
which those ends demand state intervention in civil society and the market).
Second, the relation between a nation's citizens and government is one of
trustor and trustee. n37 Government must serve and take direction
from the people (although in liberal democracies the people's will finds
expression in a complex, highly stylized arrangement of broad constitutional
directives and the periodic election of representatives).
Neoliberals, in contrast, define the relation between citizen and state more
in terms of the metaphoric prepolitical state of nature than the social contract's
prospective application to civil government. In their view, collective choice
is nothing but the aggregation of individual decisions, and the creation
of a political community or government is at best a necessary evil, the burden
individuals must bear to secure their private ends. Law and a minimal state
may sometimes be necessary to protect individuals from others' harmful acts
(however defined), facilitate voluntary exchange, and arrange for or stimulate
the production of public goods. But except for this "minimal collectivization,"
n38 the only legitimate allocation of resources is that "contingently
negotiated by the unhindered activities of individuals in [*410]
competitive exchanges with one another." n39 As Hayek and Nozick emphasize,
any collective decision to which an individual has not consented is a restriction
of his liberty since it denies him the possibility of acting in a manner
he otherwise could have acted and of judging his own ends. n40 Or,
to cast that proposition in Buchanan's public choice terms, rational individuals
will choose democratic over individual decision making only when transaction
costs prevent the reaching of private, voluntary agreements. n41 In
sum, by its very nature constitutional representative democracy offers inadequate
protection for liberal rights. Majoritarian rule is a second-best alternative,
to be employed only when market failure obstructs private bargains.
Where do the cyberians fit in this colloquy? Cyberians often use the terminology
of liberal democracy. They argue, for example, that rule of a territorial
representative democracy over cyberspace belies the liberal democratic principle
of "government by the consent of the governed." n42 But for the most
part, the cyberian project is a neoliberal one. n43 They view liberal
democracy as a second-best alternative to private agreement. Moreover, they
see in cyberspace the unprecedented possibility of dramatically reducing
individuals' decision-making and transaction costs. As they describe it,
cyberspace represents the fruition of the neoliberal dream, the possibility
of a society ruled by myriad private, voluntary agreements. In cyberspace
the state, even a liberal democratic state, is an unnecessary and deleterious
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.
IV. State Regulation
My critique of the cyberian claim of liberal perfection has highlighted
the contradictions between the cyberpopulist, cybersyndicalist, and cyberanarchist
visions on the one hand, and the liberal democratic ideals, on the other.
My assessment of the cyberian claim for community autonomy has sought to
counter the notion that cyberspace self-rule has any special purchase within
political liberalism. As I have sought to emphasize, however, the failings
of the cyberian claims do not necessarily call for the systematic corrective
intervention of the liberal democratic state. Indeed, like other civil associations,
virtual community and discursive interaction are generally supportive of
the democratic culture upon which the liberal state depends. It is thus in
the interest of territorial liberalism that state intervention, at least
in the associative and discursive fora of cyberspace (as opposed simply to
sites for electronic commerce), be narrowly drawn.
In this Part, I will consider a number of areas in which state intervention
in cyberspace activity might nevertheless be warranted. In keeping with my
focus on the cyberians' political claim, I will limit myself to a narrow
universe of possibilities. I will examine several instances in which cyberspace
activity might threaten liberal democratic values, including through status
discrimination, content discrimination, the appropriation of personal information,
and the maintenance of vast inequalities in the resources required for the
effective use of Internet networks and content. In each instance I will ask
to what extent the state should intervene in order to protect liberal democratic
A note of caution before I do so: as I have suggested above, a complete assessment
of the desirability of state intervention would need to examine the state
side of the equation as well as the cyberspace side. It would need to ask
not only whether cyberspace fails to protect liberal democratic values, but
also whether, even in those areas in which state intervention seems warranted,
the state can be expected to act effectively in the interest of oppressed
individuals and minorities. Political liberalism already contains within
it a healthy skepticism of the state. Much liberal doctrine is designed to
cabin state power and to prevent majorities from using state institutions
to oppress minorities. But in the areas I will discuss, liberalism also requires
an activist state. The concentration of private power and majority prejudice,
self-regard, or indifference in civil society can also deprive minorities
of the incidents and requisites of liberal citizenship.
A public choice theorist might argue, however, that the powerful will tend
to capture state institutions and thus that government cannot be relied upon
to protect the weak. Or the theorist might argue that state agencies are
institutionally inept and thus are unable effectively to carry out a defense
[*453] of liberal democratic values. With respect to cyberspace, this
argument, at its core, is that the failings of cyberspace must be viewed
in comparison to the gross imperfections of the liberal democratic state.
In principle, this is a point well taken. In a world of second-best alternatives,
identifying the failings of one alternative does not necessarily mean that
another is preferable. At bottom, however, I join with many other commentators
in rejecting the radical, determinist skepticism of state competence and
integrity. n230 It should not be forgotten, moreover, that digital
communication and information storage can also dramatically improve the efficacy
of state decision making and regulation. n231 The Internet might also
serve to broaden public input into state policy. n232 A further investigation
of the competency and integrity of the liberal state in the digital age is
beyond the scope of this Article. In this Part, I will rest on the assumptions
of reasonably sufficient state competence and integrity that regularly justify
state intervention in the offline world.
A. Status Discrimination
Status discrimination is endemic in cyberspace. Numerous listservs, newsgroups,
and other cyberfora restrict access based on a person's professional standing,
occupation, knowledge, or affiliation. The Cyberprof listserv, for example,
is generally restricted to professors who teach courses related to cyberlaw.
Similarly, nonlawyers cannot generally gain access to Counsel Connect, and
none but select Internet pundits may join any of a number of "virtual gated
communities" that screen out uninvited hoi polloi. n233
Such discrimination can perform a useful function. It can serve to ensure
that discussants share a common language and expertise. Copyright lawyers
may wish to dissect the Digital Millennium Copyright Act without having to
read and delete messages from Internet hackers ranting that information must
be free or even from general counsel who do not know the difference between
fair use and fair play. Status discrimination can also [*454]
serve as a proxy for screening out off-topic messages. Web designers may
wish to canvass sources for the latest enhanced graphics, and postmodern
artists may wish to exchange ideas about artistic appropriation, without
unsolicited monitions from client-hungry copyright lawyers. Finally, status
discrimination can enhance civility. People who know each other offline or
who belong to the same close-knit professional or religious associations
are less likely to engage in online affront than are anonymous strangers.
Status discrimination, in short, can make the difference between a discussion
that is informative and meaningful for its participants and one that serves
no useful purpose for those who initiated the discussion.
Of course, just as status discrimination can center on expertise, occupation,
and association, so can it focus on race, gender, physical disability, age,
sexual orientation, or other immutable physical characteristics. Given the
limitations of current Internet technology, such status discrimination has
thus far been relatively uncommon in cyberspace. n234 The vast majority
of virtual discussion takes place through the exchange of text, and those
who wish to participate without revealing their offline identity may generally
do so. n235 As the Internet develops, however, text-based anonymity
will increasingly become a thing of the past. Software such as CU-SeeMe makes
possible Internet video chat, a phenomenon that can be expected rapidly to
proliferate as high-speed modems and increased network bandwidth enable high-quality
video conversation. n236 Moreover, "online profiling" of Internet
users, digital identification, and the possible availability of digitized
driver's license photographs and other visual identification will enable
web site operators and other Internet players to determine users' race, gender,
age, and other physical characteristics. n237 As a result of these
developments, Internet technology will no longer constrain status-based discrimination.
Whether for economic motives or because of simple prejudice, cyberspace redlining
may become increasingly prevalent.
As Eugene Volokh has aptly noted, cyberspace discrimination based on race,
gender, or other immutable characteristics may, in certain [*455]
circumstances, be no less conducive to effective online discussion than is
discrimination based on profession or expertise:
Blacks might want to argue how they as blacks should react to Louis Farrakhan;
whites might want to debate how whites should deal with the problems of police
racism; men or women might want to share thoughts on why their own sex is
superior. In each situation, people might specifically want to hear the voices
of their fellow group members (whatever they have to say) and not of others
(no matter how sympathetic to the group they might be). n238
Yet despite its efficacy in certain discursive settings, race, gender, and
other such discrimination can also grossly contradict liberal values. Much
depends on historical and social context. If the Hopi Indian tribe set up
a network of email listserv discussion groups exclusively for Hopi Indians,
most non-Hopis would view that as a legitimate effort to preserve the beleaguered
group identity of an insular ethnic group. n239 On the other hand,
if Rotary International established an all-white, all-Protestant, or all-male
virtual network, that, in the context of American history, culture, and power
relations, would properly be viewed as an instance of pernicious subordination.
The invidious nature of status discrimination also depends on extent. If
widespread across multiple spheres of activity, discrimination based on race,
gender, sexual orientation, age, or disability can transform what is generally
"a morally irrelevant characteristic into a pervasive source of social disadvantage."
n241 Systemic discrimination on the basis of such characteristics
deprives large groups of people of the education, employment, political influence,
and economic opportunity required for self-advancement and basic participation
as citizens in a democratic society. n242 Somewhat more symbolically,
but ultimately no less tangibly, [*456] such status discrimination
creates a stigma of second-class citizenship, placing its victims under the
constant threat of domination at the hands of another. n243
For those reasons, numerous federal and state laws prohibit discrimination
based on race, gender, age, disability, and other factors in a broad range
of contexts. Antidiscrimination laws typically apply in the workplace, the
housing market, and "places of public accommodation," n244 which include
hotels, restaurants, theaters, and other businesses and entertainment facilities
of a kind generally open to the public. Private clubs, n245 parades,
n246 and associations such as the Boy Scouts and Jaycees have also
been held to be places of public accommodation. n247 Discrimination
in such contexts can cause considerable personal discomfort to its victims.
The hotel or restaurant that excludes may be the only one in town. Such discrimination
can also deprive victims of the tools for self-realization, isolate them
from sources of political power, deprive them of economic opportunity, and
brand them as second-class citizens.
Cyberfora and networks that are generally open to the public should similarly
be seen as "places of public accommodation," whether by statutory construction
or legislative extension. n248 Cyberspace is fast becoming a central
source of information, opinion, and entertainment. The discursive arenas
of cyberspace also increasingly serve as important avenues for social contact
and market transaction, just as they present vital opportunities to make
one's voice heard and to seek to influence others. n249 Pervasive
discrimination in cyberspace would cause no less deprivation than does discrimination
in places of public accommodation offline. As cyberspace assumes an increasingly
greater part in public discourse, civil association, social intercourse,
cultural expression, and market transaction, the effects [*457]
of virtual discrimination would flood into real space. They would work a
fundamental impairment not only of "netizenship," but also of citizenship
in territorial polities.
Cyberians might contend that antidiscrimination regulation is unnecessary
in cyberspace. They might argue, first, that unlike a black family denied
lodging in a small town motel, Internet users enjoy an abundance of choice.
A person who is excluded from one virtual forum, for whatever reason, can
always find a suitable substitute in which she will be accepted. A whites-only
listserv or an Internet service provider that refuses to sell access to known
homosexuals will be one discrete option among a multitude of highly diverse
virtual communities. Many virtual communities are exclusive. After all, borders
are what make a community. But many cyberfora are not exclusive, and even
those that are exclude on the basis of widely varying criteria. Surely the
excluded netizen, cyberians would contend, can easily find another suitable
site. Even if she cannot, given low entry and communication costs, she could
readily set up a new one. In sum, cyberians might argue, even if directed
against subordinated offline groups, virtual discrimination lacks the sting,
the insurmountable deprivation, of its offline analogue.
As I have discussed, however, substitute fora may be considerably less plentiful
than cyberians assume. And the more pervasive the discrimination against
a particular group, the more difficult it will be for members of that group
to find a suitable alternative. The availability of suitable alternatives
would substantially diminish even further if discrimination occurs at the
network level, where Internet service providers or groups of discussion groups
discriminate, or at the carrier level, where entities that carry Internet
communication signals discriminate. That possibility, it bears emphasizing,
is far from remote. Concerns that carriers were engaging in redlining led
Congress, as part of the Telecommunications Act of 1996, n250 to prohibit
racial, ethnic, or gender discrimination in the provision of telecommunications
Of course, cyberspace also contains structural disincentives to discriminate.
Commercial players, including carriers and commercial [*458]
operators of networks, virtual communities, discussion groups, and web sites,
lose the business of those whom they exclude. But if past experience is a
guide, and there is no reason to think that cyberspace would prove any different
in this regard, markets produce discrimination no less than they reduce it.
n251 If sufficient numbers of prospective customers would choose a
virtual network or site that discriminates against a particular group over
one that does not, then network and site operators will have a greater incentive
to discriminate than to allow that group access. The same result will obtain
when network or site operators view ethnicity or gender as rough proxies
for customer trustworthiness and buying power. n252
Significantly, moreover, widespread discrimination in cyberspace may cause
intolerable harm even if it is not so pervasive as to preclude victims from
finding alternative networks and sites. Discrimination is not a discrete
act with discrete consequences. Rather it can be laden with symbolic potency.
It can be a public statement about the presumed inferiority of a minority
group. Given the global, instantaneous nature of cyberspace communication,
that statement - the fact that many regard a particular group as undesirable--is
all the more likely to become common knowledge. It will fuel a common awareness
that the subjugated group enjoys access to the discursive foundations of
civil society only at the leave of the powerful. n253
That common awareness in turn will tend to relegate the group to the status
of second-class citizenship. Equal citizenship derives not just from the
possibility of finding alternative sources for the goods from which a group
is deprived. Rather it comprises a subjective and intersubjective aspect,
a shared knowledge that citizens are entitled to access as a matter of right.
n254 Pervasive virtual discrimination on the basis of race, gender,
or other such status may thus work a fundamental deprivation of the incidents
of liberal citizenship even if nondiscriminatory fora are readily available.
In sum, status discrimination in cyberspace may be inimical to liberal principles
of equal citizenship, but it may also be central to effective and meaningful
discussion. How are we to resolve this tension? Case law regarding private
associations' discriminatory membership requirements is instructive.
n255 In a number of instances, private associations have brought First Amendment
challenges against public accommodation statutes that forbid organizations
from excluding prospective members on the basis of [*459] race,
gender, and other such status. The First Amendment rights of free speech
and association guarantee the right of individuals to form private associations
to advocate their views, including views favoring status discrimination,
and to exclude persons who do not share such views. n256 The Supreme
Court has held, however, that immutable attributes cannot serve as an automatic
proxy for viewpoint. n257 Rather, an organization has no First Amendment
right to discriminate (at least on the basis of gender and, presumably, other
suspect classifications such as race and national origin) unless it can "show
that it is organized for specific expressive purposes and that it will not
be able to advocate its desired viewpoints nearly as effectively if it cannot
confine its membership to those who share [particular characteristics]."
Applied literally to cyberspace, that rule would deprive the vast majority
of virtual communities of First Amendment protection against public accommodation
statutes. Virtual fora are fundamentally concerned with expression and thus
should have little problem qualifying as organizations "organized for specific
expressive purposes." And some virtual fora - probably more web sites than
discussion groups - are organized to advocate a viewpoint to others. But
most are simply designed to facilitate an internal exchange of ideas among
discussants, not to try to convince or inform the public at large. Likewise,
discussants in virtual fora that would exclude on the basis of immutable
characteristics would generally do so not because inclusion would impair
advocacy, but because virtual discussants want to carry on their conversation
only with persons whom they perceive to be fundamentally like themselves.
Yet despite the Supreme Court's apparent focus on advocacy to outsiders,
status discrimination for purposes of facilitating intragroup discussion
should not face a blanket prohibition. As noted above, some conversations
lose their essential purpose and meaning unless limited to persons of a particular
group. In such instances, the participants' interest in discriminating (and
the allied public interest in promoting discursive [*460] expression
and association) should prevail over the interest in preventing invidious
In other cases, however, the participants' desire to exclude bears no reasonable
relation to the topic of discussion. In that event, the discriminating virtual
community should be viewed no differently than a nonexpressive private club.
Virtual discussants might wish generally to associate and converse online
with those of their own race or gender, just as members of the Rotary Club
or Jaycees might prefer to associate and converse offline with persons who
share particular attributes. But in that case, the desire to discriminate
has insufficient nexus to the public interest in conducing meaningful and
effective expression to override the broad harmful effects of such discrimination.
In sum, so long as the virtual community is of sufficient permanence and
openness to new members to be more than a distinctly private conversation,
and so long as the attribute discrimination in question is particularly egregious
in light of its historical and social context, the liberal state should act
to prevent it. n259
The same will be true with respect to networks of virtual fora. An Internet
service provider who wishes to establish a network of white supremacy discussion
groups should be entitled to exclude nonwhites from the network to the same
extent that an offline association dedicated to advocating white supremacy
should be entitled to exclude nonwhites from membership. An Internet service
provider who wishes to establish a network of all-white discussion groups
on topics ranging from gardening to pit bulls should not be permitted to
B. Content Discrimination
The exclusion of speech based on the content of that speech is far more
prevalent in cyberspace than even discrimination based on the status of the
speaker. Listserv and newsgroup moderators commonly select which messages
to distribute to discussion group members and often edit the distributed
messages. n260 On the "regional" level, network administrators regularly
decide which discussion groups may appear on the network and which may not.
n261 They also sometimes delete or automatically screen out
[*461] certain types of messages. n262 Network administrators
may also employ software filters to block access to certain sites or certain
types of sites. More aggressively, network administrators sometimes use self-help
technology to cancel postings with which they disagree or to block all messages
from targeted sources. Finally, at what might be seen as the "national" or
"global" level, administrators of domain name registration systems may deny
web site domain name registration based on the content of the proposed domain
name or, conceivably, even the content of the site itself. Such denial effectively
precludes the applicant from making his voice heard on the web (either under
the requested domain name or at all).
Beyond such administrator editing and blocking, cyberspace, as currently
structured, offers users an unprecedented opportunity to discriminate against
content they choose not to see or hear. Unlike viewers of traditional television,
readers of print newspapers, or purchasers of record albums, cyberspace users
can carefully construct the matrix of speech to which they are exposed. Numerous
browsers and web sites offer users the opportunity to custom-design the menu
of information and content they receive, creating the equivalent of personalized
newspapers and radio programming. n263 In contrast to the mainstream
print and electronic press, moreover, cyberspace contains vast amounts of
narrowly tailored information, opinion, and expression on a seemingly infinite
variety of topics, all available to users at the click of a mouse. Cyberspace
users thus enjoy considerable freedom to choose only the information they
assume they want, and ignore other topics and views. n264
Political liberalism generally requires that the state refrain from overriding
private editing and content selection decisions. Indeed, the First Amendment
generally protects both network administrator editing and user choice of
content against such state interference. n265 Nevertheless, cyberspace
content discrimination calls for a close examination of the desirability
of state involvement on a number of fronts. Such state involvement may entail
the promotion of expression diversity, regulation of systems for filtering
web site content, and prohibition of self-help private censorship.
1. The Promotion of Expressive Diversity
Expressive diversity and robust debate are vital to democratic culture.
In the offline world, however, the market skews public discourse in favor
[*462] of those with the financial wherewithal to own a press or broadcasting
station, those likely to buy the products that advertisers want to sell,
and those with majority tastes representative of the lowest common denominator
of the consumer public. n266 The state has acted in a number of ways
in an effort to counter these market and political failures in order to promote
expressive diversity. It has imposed on certain speakers, notably private
broadcasters and cable television operators, public interest and quasi-common
carrier obligations. It has variously required them to devote attention to
matters of public interest, present a diversity of views on such matters,
and provide airway access to speakers whose views might otherwise not be
heard. n267 The state has also engaged in structural regulation of
the mass media, imposing local and minority ownership requirements and cross-ownership
limitations designed to achieve a pluralism of voice. n268 Finally,
the state has acted as speaker. It has done so directly through the dissemination
of government-produced information, and indirectly by subsidizing the creation
and dissemination of expression that might not find sufficient commercial
support to otherwise find its way into public discourse. n269
Cyberians contend that in an age of cyberspace "cheap speech," such state
involvement is unnecessary. n270 On the Net, everyone can be a speaker
and everyone can find a wealth of diverse expression and information. Concomitantly,
cyberspace drastically reduces the control of publishers, broadcasters, newspapers,
bookstores, and other private intermediaries over what speakers will say
and audiences will hear. In cyberspace, authors [*463] can communicate
directly to readers, and readers can freely become authors, not only selecting
what they read but also by responding to it. n271 In this new, highly
democratic and highly diverse information marketplace, cyberians claim, the
offline rationale for state regulation and intervention will no longer hold.
But the cyberians' rosy picture of the digital information marketplace frays
in a number of places. First, a world of custom-designed communications mixes
could lead to considerable balkanization and self-insulation. n273
Given the power to screen out information or ideas they find uncongenial
or simply to ignore cultural expression that does not fit their tastes, Internet
users may well immerse themselves in a narrow set of familiar fare.
n274 A liberal democratic polity, however, needs citizens who are exposed
to competing ideals and ways of thought. In that manner, citizens can test
and refine their own understandings and commitments, and gain some empathy
for others even when they disagree. Citizens must also share a sufficiently
common culture to engage in mutually intelligible conversation. Without some
common language, some shared basis of understanding, public discourse will
less resemble reasoned deliberation than cacophonous babble.
Second, as discussed above, cyberspace appears headed towards profound changes
in its structure and content. Economies of scale, network effects, intense
competition for user attention, and emerging Internet technology for the
dissemination of high-quality, star-studded, expensive video content will
radically transform cyberspace's expressive matrix. Far from its pluralist
"cheap speech" origins, cyberspace will reverberate to the tune of Time Warner,
Viacom, and Disney. n275 Lone authors and musicians might still post
their work on listservs and web sites, and those who know and care to look
will still be able to read and hear that work. But the dissemination of most
information and expression will more closely resemble today's mass media
marketplace than today's infant Internet. Both authors and audiences will
return to depend heavily on intermediaries--the cyberspace equivalents of
book publishers, film studios, newspapers, television networks, and record
producers - to act as gatekeepers selecting which [*464] expression
to market, to market that expression, and to invest in the production of
expensive content. Those intermediaries will determine what content gets
communicated to most people. n276 In turn, cyberspace intermediaries,
like their offline counterparts, will tailor much of that content to mainstream
tastes and to the tastes of audience segments most likely to buy advertiser
products and services. n277
If my prediction about the cyberspace future proves accurate, the cyberspace
information marketplace will thus face much the same distortions and market
failures that have often been seen to justify state intervention offline.
n278 Still, that does not mean that the same kind of state intervention
would be warranted. Even in my grim scenario, it is doubtful that the information
marketplace will suffer from the same level of concentration and bottlenecks
as in predigital broadcasting and cable television. Most virtual audiences
may choose (or be pushed) content from large media conglomerates most of
the time. But unlike today's subscribers of local cable monopolies, virtual
audiences will likely have scores of such sources and distributors from which
to choose. In addition, the Internet will provide some expressive outlet,
the equivalent of an electronic street-corner, even for those without the
funds to launch and market a digital channel. n279 Under those circumstances,
state content regulation to promote expressive diversity or state mandated
rights of access to commercial channels would be unnecessary and inappropriate
(as well as likely unconstitutional). n280
On the other hand, whether the digital information marketplace leans towards
balkanized narrowcasting or to standard catering to the lowest common denominator,
there will remain an important place for state subsidization of programming
that deals with government, public affairs, the [*465] arts,
education, and minority expression. n281 Some such content will likely
find its way onto the Internet even absent state support. But without state
funding for high-quality production, distribution, and marketing, it will
be lost in the welter of text, voice, film, and music transmitted across
the Net. The liberal state should thus be entitled and encouraged to use
its fiscal power to support the dissemination of selected digital content.
n282 Through such subsidies, as well as through its ability to "legitimate
certain arguments by virtue of state endorsement," n283 the state
should seek to encourage citizens to partake of a diversity of expression
and seek to counter the insularity attendant to both narrowcasting and mainstreaming.
Filtering is a crucial part of any communication. We cannot process all
the human-generated information that stands at our disposal. We must set
aside the vast bulk of that information in order to make communication a
productive, meaningful, and enjoyable activity. Nor can we even sift through
any but a minute portion of that information in order to select what we want
to read, look at, or listen to. Rather we must simply ignore - block out
- almost all of the expression that seeks to capture our attention. The question
then is not whether we filter certain speech, but how. On which technologies
and social institutions do we rely to select the speech we will hear?
n284 How is content-determining authority allocated and to what extent do
we delegate sifting and selecting decisions?
In the offline liberal state, we rely heavily on the editorial and marketing
decisions of private publishers to select the speech we will receive. I read
the New York Times, rather than the National Enquirer, because I assume that
the Times' editors will consistently select out a mix of expression containing
more information and opinion of use and interest to me, [*466]
and more writing that I will find enjoyable to read. As a society, we allocate
selection and editorial decisions to those with the financial resources to
own and operate a press, film or TV studio, broadcast station, book store
chain, or CD distribution network. To the extent we even think about it,
we trust those entities (at least more than we trust the government) to provide
us with more or less the expressive mix we want, and available offline technology
does not offer meaningful, more decentralized editorial alternatives.
Filtering is no less necessary in cyberspace than offline, and indeed, given
the volume of information available in cyberspace, perhaps even more so.
That need has spawned a growing industry in Internet filters. n285
As Esther Dyson aptly notes, "the new wave is not value-added; it's garbage
Internet filtering systems are of several different types. First, there are
what we might call positive, limited filters. These comprise searching agents
and browser pages that highlight a specified set of information for the user.
As noted above, users can increasingly customize that information mix. I
call these positive, limited filters because, while they highlight certain
information and sources, they do not preclude, or impose significant costs
on, user access to other content. I might configure my browser to use the
New York Times web site as its home page, but that does not prevent me from
surfing to the Enquirer's site as well. n287
Then there are more comprehensive, negative filters. These are generally
configured to completely block access to certain specified sites or, even
more broadly, the reverse: to allow access only to listed approved sites.
Most such filters, still the most feasible negative filtering technology
today, provide access to a database of blocked or approved sites, compiled
by the filter manufacturer or some other intermediary. When the user's browser
seeks to visit an Internet page, it first "requests permission" from the
database site. Permission to access is granted or denied depending on whether
and how the page is described in the database. n288
Increasingly, however, filters employ embedded ratings systems, such as the
Platform for Internet Content Selection (PICS). n289 Such systems
[*467] enable content providers or authorized independent entities
to insert digital labels into Internet content. The user's selection software
then determines how to process the content bearing specified labels - whether
to block it, restrict access, allow access, organize it, or perform some
other task. n290 Significantly, PICS and other such embedded ratings
systems can be set to block access to unrated sites or to all sites except
those bearing certain labels. n291 So configured, PICS may dramatically
curtail the scope of the user's Internet access.
Moreover, even that filtering is child's play compared to the anticipated
development of electronic "smart agents." n292 Such agents will consist
of software programmed to browse the Internet on the user's behalf and to
bring back (or allow in) only that menu of information that comports with
the user's specifications. n293 We might think of smart agents as
a comprehensive, positive filter. They do far more than highlight particular
information. Rather, once deployed, a smart agent accords the user access
only to the user's narrowly tailored preselection of text, graphics, video,
and music. It effectively screens out everything else.
Internet filtering has been highly controversial and the critics' wrath has
fallen on PICS in particular. They have variously labeled that filtering
standard "the devil" n294 and "the most effective global censorship
technology ever designed." n295 Much of such criticism focuses on
the possibility that governments might either institute Internet filtering
to prevent their citizens from gaining access to certain information or effectively
require content providers to label their content so that users can more easily
filter. n296 But concern has also been raised about private filtering
in and of itself. n297 It has been suggested in that regard, that
the state might act to curtail private Internet filtering. n298 It
is that possibility that I wish to consider.
[*468] Liberal democratic theory sets forth two fundamental, and partly
opposing, criteria for assessing content-determination systems. First, it
places a primacy on expressive diversity and citizen education. Citizens
must be exposed to a wide variety of information and opinion on matters of
public import in order to make critical judgments about government policy
and elected officials. Second, individuals should exercise considerable autonomy
in determining what expression they will see and hear, or at least in selecting
the institutions on which they will rely for content selection. That means,
first and foremost, that the state cannot micromanage individual choices
regarding speech consumption. Somewhat more controversially (at least within
traditional liberal thought), it means that we should also seek to maximize
individuals' autonomy and considered judgment in their selection of private
speech filtering intermediaries.
How then might we assess the allocation of content-determination authority
that Internet filtering represents? To the extent that individual users configure
filtering systems to suit their particular tastes and interests, Internet
filtering represents a somewhat more extreme version of the narrowcasting
problem discussed above. Try as they might, audiences of traditional, offline
media cannot always filter out information they do not want to hear. As I
flip among the channels on my TV set or leaf through the newspaper, I am
bound to come across, even if only for a fleeting moment, some expression
that I would not otherwise care to see. In fact, a program or article might
just catch my eye, and--who knows--might even lead me to question my prior
preferences or opinions. But with my customized Internet filter in place
when I browse through cyberspace, or my preprogrammed electronic agent browsing
for me, I will simply not come into contact with sorts of expression that
I have determined in advance that I do not want to see. n299
Such filtering, then, raises problems of excessive insularity. At bottom,
it enables users to be too selective about the speech they hear. As such,
Internet filtering may contribute to locking in existing preferences, and
to diminishing possibilities for discourse across the political and cultural
spectrum. But that is not to say that the liberal state should interfere
with individualized uses of Internet filtering. Such interference would raise
serious concerns about state efforts to direct individual content consumption
choices. Rather, as noted above, the most the state can or should do to counter
individuals' self-chosen insularity is to promote alternatives and seek to
cultivate a broader civic interest among its citizens.
Yet much Internet filtering is not individually configured. Internet users
often delegate their micro-filtering choices to intermediaries. That is what
happens, for instance, when users rely on filter software that includes a
third-party database of permitted or prohibited sites. User delegation can
[*469] have untoward consequences. Database filtering systems are notoriously
overbroad and inaccurate. n300 They may also incorporate their developer's
political agenda. A database-driven parental control software called "Cybersitter,"
for example, has blocked the web site of the National Organization of Women
for "sexual content," as well as web sites critical of Internet filtering.
Software that purports to filter for one thing and actually filters for something
quite different should be subject to liability for false advertising. In
addition, one can argue that filtering intermediaries should be required
fully to disclose their filtering criteria, including the list of sites they
block. Intermediaries regularly refuse to do so on the grounds that their
filtering criteria constitutes a trade secret. That position is not unreasonable.
Especially for commercial intermediaries, opening filtering criteria to possible
appropriation by competitors might, to a degree, diminish incentives to develop
criteria and assemble lists of prohibited sites. Nevertheless, the liberal
principle of maximizing individuals' autonomy in their selection of private
speech filtering intermediaries suggests that the state should require full
disclosure. n302 This may dissuade some commercial entities from developing
and marketing filtering systems. But there are no doubt ample numbers of
civic-minded and ideologically-based organizations that would be happy to
offer or commission filtering services on a nonproprietary basis.
Filtering can also take place without the user being aware of it at all.
Internet service providers, employers, or universities can install filters
"upstream" from the user, so that none of the users in the affected system
may access materials the organization deemed inappropriate. Filters can also
be embedded in browser software, with the factory default configured to deny
access to unrated sites or pages. n303
Internet service providers, employers, universities, and browser manufacturers
are certainly entitled to employ filters. Service providers and browser manufacturers
may do so as a service to consumers. Employers and universities might wish
to curtail Internet surfing unrelated to employment and classroom study.
Nevertheless, users should be entitled at [*470] least to know
that their Internet use is subject to filter, and that their browser searches
are not bringing forth the full component of possible sites. Armed with that
knowledge, they might choose to gain Internet access through another gateway
with lesser or different filter constraints. n304
Beyond such full and accurate disclosure requirements, however, user delegation
of filtering choices to intermediaries should not give rise to any greater
state interference than when users configure filtering by themselves. As
in the offline world, most people do not have the time to engage in much
micro-filtering on their own. Rather they choose intermediaries whom they
trust to filter on their behalf. Intermediaries may sometimes block expression
that the user might have chosen to see, just as the New York Times might
not publish everything I would have wanted to read. But that is not in and
of itself cause for state intervention.
3. Self-Help Censorship
Cyberspace encompasses a variety of self-help censorship technologies and
strategies that are more aggressive than filters. Filtering blocks access
to a site or page from one's own computer or Internet gateway. It might block
access for anyone who uses that computer or gateway, including one's family
members, employees, students, and customers. But it does not impede a stranger's
access to the filtered site.
In contrast, self-help censorship mechanisms can be used to block or cancel
all Usenet or email messages that originate from a certain site, service
provider, or server. In one celebrated case, for example, the Church of Scientology
used a computer program known as a "cancelbot" to cancel [*471]
posts of Church critics to the Usenet newsgroup, alt.religion.scientology.
n305 In other instances, the self-appointed SubGenius Police Usenet
Tactical Unit Mobile (S.P.U.T.U.M.), in collaboration with system administrators,
has exacted the "Usenet death penalty" on service providers that allow their
customers to post unsolicited bulk advertisements (known as "spam").
n306 The death penalty bars all messages from any subscriber of the recalcitrant
service provider. Similarly, the managers of the "Realtime Blackhole List"
n307 and other antispam activists identify Internet service providers
who, in the activists' opinion, have not done enough to prevent spammers
from using their email relay systems to send spam email to third parties.
The activists assist other service providers in configuring their systems
to deny access to any email from subscribers of providers accused of such
"bad e-mail practices." n308 The networks of a number of universities,
including Harvard and MIT, have been targets of such antispam actions when
activists deemed insufficient the networks' efforts to police the use of
their respective email relay facilities. n309
Cyberians laud such measures as an instance of "informal social control."
n310 In this view, cancelbots and electronic death penalties are simply
mechanisms for decentralized "norm-creation" and enforcement in cyberspace.
Their value lies in not being state-imposed law that seeks to govern every
cyberspace user in a standard manner; such self-help mechanisms are rather
one of many alternative rule regimes. Targets can fight back with circumvention
technology or by blocking their censors' messages. System administrators
can choose whether to side with the censors or with the targets. From all
this will emerge a norm concerning the expression in question, one arrived
at from the "bottom up." As David Post argues, countering the complaint of
"Professor X" that his email regularly bounces back to him after antispam
activist, Paul Vixie, targeted his university computer network:
Most significantly, if you do not agree with Vixie's particular definition
of unacceptable behavior, or his choice of sanction, or [*472]
the means he has chosen to implement that sanction, or his method of detecting
violators subject to the sanction, you are entirely free to ignore them (or,
if you'd like, to propose your own). Not that his behavior doesn't exercise
a constraint on yours; but it does so only to the extent (and precisely to
the extent) that others share his views on the definition of wrongdoing,
the choice of appropriate sanction, the identity of the wrongdoers, etc.
He can persuade, and cajole, and beg the hundreds of thousands of ISPs out
there to join his group of Subscribing ISPs - but he cannot force them to
do so in any meaningful sense of that term. It is a near-perfect preference-revealing
device, it would seem, for uncovering shared definitions of unacceptable
conduct; the likelihood that Professor X will feel the sting of Vixie's sanction
is perfectly calibrated to the number of people who share Vixie's views in
these matters. If a substantial number of people share his view of unacceptable
behavior, it may become a governing norm on the net; and if a substantial
number of people share his view of what constitutes unacceptable behavior,
who is to say that that view is not the "correct" one? n311
To my mind, a world such as the one Professor Post envisions would run counter
to the principles of liberal democratic governance. For one, I question the
democratic nature of the market-based decision-making process. That process
is heavily biased towards those with the financial resources, generally acquired
outside of cyberspace, to expend on convincing others (perhaps by words,
perhaps by bribes, perhaps by threatening to block their sites and servers)
to join one's side. If Microsoft and General Motors were ever to decide that
spamming was vital for their business, I have no doubt that most system administrators
would be "convinced" to accept spam. n312
Even more basically, however, that cyberanarchist world provides inadequate
protection against the tyranny of the majority. As Professor Post would apparently
have it, if most system administrators decided to block service providers
that allowed their subscribers or others to post messages containing certain
unpopular political or religious views, that would simply entail the acceptable
creation of a cyberspace social norm banning dissemination of those views.
But liberal democracy, and in this case the right of free speech, is designed
precisely to impede such [*473] "preference-revealing devices"
when majority preferences run roughshod over fundamental political and civil
rights of minorities.
The need for minority protection is even more apparent when one considers
the impact of network effects on cyberspace governance. Post seems to suggest
that procensorship and anticensorship regimes could coexist on the Internet,
that perhaps users could (through their selection of system administrators)
choose whether to have interconnections with those that ban the particular
speech or with those that allow it. But communications systems like the Internet
exhibit powerful network effects. A significant value - indeed for most people
the principal value - of having an Internet connection is the capacity to
communicate with everyone else on the Net and to access information from
a wide variety of different sources. n313 As a result, in a case of
competing, incompatible subnetworks, users will tend to stampede towards
the subnetwork that initially attracts more users. That network will become
the de facto standard setter and norm-creator. n314
C. The Appropriation of Personal Information
Each time I visit the New York Times web site, the Times and its advertisers
gather information about what I choose to read there. n315 Depending
on how my browser is configured, they can also determine what other sites
I have visited. The Times and its advertisers use the information they gather
to create a profile of my reading preferences. That way they can individualize
their services and offer me promotions I am more likely to buy. They also
regularly transfer all or part of the information to others. These third
parties may then aggregate the Times web site information with additional
information that has been compiled about me from other sites. In that manner
they can produce a more complete profile or various profiles tailored to
The New York Times site is not atypical, except that it purports to comply
with a relatively high standard of customer privacy protection. n316
Our cyberactivity regularly generates information about us that is collected
and used by others. n317 In fact, advances in digital communication,
storage, and processing technology have created unprecedented possibilities
for [*474] recording and exploiting information regarding individuals'
activities and preferences. n318 The ramifications are profound. It
is not merely that seemingly infinite amounts of information can be collected
and permanently stored. Digital information processing also entails aggregating
previously scattered bits of information from different contexts.
n319 It thus produces virtually limitless possibilities for compiling, analyzing,
and systematizing such information. n320
Surveys indicate that the American public has widespread apprehension about
the use and misuse of personal information, especially in connection with
Internet activity. n321 That in turn has prompted concern in the Clinton
Administration that consumers will not use the Internet for electronic commerce
unless they are assured about personal privacy protection. n322 But
the issue of personal data protection goes beyond individual apprehension
and the development of electronic commerce. It is widely contended (although
less so in the United States than in other Western democracies) that the
unrestricted collection, storage, and compilation of personal data - whether
at the hands of private parties or the government - impinges upon fundamental
liberal rights. n323
International human rights treaties, including the International Covenant
on Civil and Political Rights and the European Convention for the Protection
of Human Rights and Fundamental Freedoms, recognize, in fairly general terms,
individuals' right to privacy. n324 Courts, [*475] commentators,
legislators, and various international instruments have in turn viewed personal
information protection as a necessary component of that right. n325
For example, the Council of Europe's Convention on personal data protection
asserts as its principal object: "To secure...for every individual...respect
for his fundamental rights and freedoms, and in particular his right to privacy."
n326 The European Union's 1995 Data Protection Directive expresses
its purposes in similar terms. n327
In order to fulfill its express goal of protecting individuals' right to
privacy, the European Union Directive provides for comprehensive regulation
of personal data collection and processing by private parties. n328
In marked contrast, the Clinton Administration, following its support for
Internet "bottom-up" governance whenever possible, generally favors industry
self-regulation to achieve "fair information practices" in cyberspace.
n329 Like cyberians, the Administration would couple self-regulation with
market forces. n330 Internet users would be free to choose between
web site rule regimes that protect data privacy and those that do not. Thus
the virtual "invisible hand" will generate a set of data protection alternatives,
[*476] ranging from no protection to significant protection. Users
who are concerned about privacy can limit their Internet surfing to protective
regimes. Users who are not concerned can freely visit web sites that offer
no protection regimes, presumably in return for other benefits. n331
If enough consumers are sufficiently concerned about data privacy to refuse
to visit nonprotective sites, the Administration believes, market pressure
will push sites to provide protection. n332
Far from its promise of Pareto optimality, the proffered combination of self-regulation
and market forces would likely fail adequately to protect data privacy. Industry
self-regulation, a group's regulation of its members' practices with the
goal of reducing harmful externalities to outsiders, is notoriously inadequate
to its task. As trenchant critics have shown, such self-regulation can only
work under conditions of stringent government oversight. n333
At the same time, the market for privacy protection rule regimes suffers
from intractable information asymmetry and market failure. n334 As
discussed above, Internet users awash in an overabundance of information
are no more able to assess and compare products and rule regimes than are
their offline counterparts. In this instance in particular, most users are
not even aware that the web sites they visit collect user information, and
even if they are cognizant of that possibility, they have little conception
of how personal data might be processed. n335 We are used to relinquishing
control over bits of personal information in many seemingly unrelated contexts.
The problem in cyberspace is that, given the power of data processing, storage,
and aggregation, users who acquiesce in what seems like a number [*477]
of innocuous isolated instances of data collection, spread out over a considerable
period, may well be surprised to find that all of those bits have been aggregated
and compiled into a highly pervasive profile. In the face of such user ignorance,
web site operators have little incentive to provide consumers with a full
account of such information practices.
We thus have a situation of widespread user ignorance about data use, coupled
with growing suspicion of possible unspecified privacy-invading abuses. At
the same time, data regarding an individual's Internet use habits and purchasing
preferences has become an extremely valuable resource for cyberspace merchants.
n336 Under such circumstances web site operators who freely collect
and transfer user data have every reason to hide their practices.
n337 Even web site operators who refrain from the most egregious practices
of user profiling, and who loudly proclaim that they do so, may not provide
a full account of the information processing and profiling practices of those
to whom they transfer user information. Not surprisingly, then, nondisclosure
and outright deception regarding data practices abound on the Internet.
Even aside from site operator opportunism, transaction costs and collective
action problems also impose severe constraints on the efficacy of the market
to discipline information practices. Individualized negotiation regarding
web site information practices is out of the question. Such practices contain
numerous variables, including which information is collected, whether it
is collected by site advertisers as well as site operators, how the information
is used on site, which information, if any, is transferred to third parties,
how long information is to be stored, what safeguards are put into place
to prevent leakage, and others. As a result, to the extent site operators
address information practice issues at all, they generally state their terms
in standard, take-it-or-leave-it web access contracts. Of course, Internet
users generally have neither the time nor ability critically to examine and
compare the privacy protection terms of every web site they visit. Nor would
we want them to; a regime in which every new site visit was preceded by considered
assessment of privacy terms would significantly burden cyberspace communication.
[*478] Cyberians and other market proponents have proffered two principal
alternatives for overcoming such barriers: delegation and technology.
n339 Users could rely on trusted third parties to rate web sites according
to the sites' privacy practices. n340 A user's decision whether to
visit a site could then take into account the site's privacy rating. In fact,
much like content ratings, users could configure their browsers--or service
providers could configure their Internet gateways--only to accept sites bearing
certain third-party privacy ratings.
Such a regime would depend on the reliability of the third party and its
rating system. It also requires cooperation, in the form of accurate reporting
of data privacy practices, from those site operators interested in obtaining
a rating. Accordingly, such a regime would not solve information asymmetry
and collective action problems, but merely push them to another level. Rather
than having to assess the information practices of individual web sites,
users would have to determine which third parties and rating systems are
reliable and have access to accurate reporting. That may be a formidable
task. n341 Consider the frequency with which self-serving industry
groups masquerade under the banner of such names as "Concerned Citizens for...."
The cyberians' second proffered solution would avoid both transaction costs
and third-party agency costs by employing electronic agents rather than human
ones. It would rely on the Privacy Preferences Project (P3P) software standard,
being developed by the World Wide Web Consortium. n343 Using P3P,
Internet users will be able to encode their [*479] privacy preferences
into their browser, and web site operators will be able to include their
privacy policies in their site servers. n344 The result will be machine-to-machine
communication and, possibly, negotiation, without a person getting involved
at either end. n345 For example, I might set my browser to provide
that site operators may collect information regarding my site visits and
use it to personalize my successive visits, but may not transfer that information
to other sites, except for the purpose of offering me books or CDs to my
liking at a discount price or unless I am paid $ 200 in cash. If a site's
stated privacy policies meet those specifications, my browser will enter
the site. If not, it will either notify me or, more probably, simply bypass
that site altogether.
If P3P works as its promoters claim, it might go a long way towards ameliorating
Internet users' privacy concerns. But in order for P3P to be effective, a
critical mass of users will have to use it. They will also have to insist
upon bypassing web sites that either do not encode the site's privacy policies
in P3P format or have onerous information practices. Without that critical
mass, many commercial web site operators would no doubt prefer to lose the
business of isolated P3P-armed customers than put at risk their lucrative
trade in user data. Thus, especially given the imperfect substitutability
of much Internet content, information asymmetries regarding personal data
collection and aggregation, and the likelihood of oligopolistic producer
market power as telecommunications mergers proceed apace, Internet users
who wish to employ P3P will face a significant collective action problem.
Unless a critical mass of additional users also employ P3P, the P3P pioneers
will simply shut themselves out of most of the sites they want to visit.
As a result, no one will employ P3P unless he can be assured that a critical
mass of others will join him. n346
It seems likely that government regulation requiring or inducing web site
operators (and other purveyors of Internet content and services) to implement
P3P will be necessary to overcome this collective action problem.
n347 Even if P3P encoding is universal, web site operators may still resist
[*480] user privacy demands. But then users (or more precisely, their
browsers) will have at least a greater awareness of site information practices
and will be able to engage in transactions to pursue users' privacy preferences.
Government may need to be involved in enforcement as well. There is nothing
in P3P technology per se that would prevent a web site from deviating from
its stated information practices. n348 Without the possibility of
bringing legal action for such fraudulent misrepresentation, users will have
to rely on industry self-policing, a notoriously toothless enterprise, or
the virtual word of mouth, with all of its questionable veracity. Even aside
from imposing sanctions on fraudulent sites, the production and dissemination
of reliable information regarding web sites' compliance with their purported
information practices is a classic public good. Because state institutions
have sufficient impartiality to warrant trust and the authority to require
all players to provide accurate information, it would likely fall to them
to provide that good.
D. Unequal Access
The liberal democratic state must aim to provide its citizens with at least
minimal access to the basic requisites of citizenship. Thus government arguably
has an affirmative obligation to provide free and desegregated elementary
and secondary education and free legal assistance to indigent criminal defendants,
to underwrite the cost of counting ballots, and to forbid the poll tax.
The duty to provide equal access has been particularly important in the area
of public discourse and communication. State support for access to information
has a long and venerable tradition. It has, indeed, been a basic tenet of
our national communications policy to promote "the widest possible dissemination
of information from diverse and antagonistic sources." n350 The Framers
heavily subsidized the widespread distribution and consumption of the media
of their day, constructing public libraries, imposing preferential postal
rates and collection practices for newspapers, and maintaining postal roads
for both post office and printers' private use. n351 That tradition
has carried over into the era of electronic communication. Federal policy
and successive pronouncements of the Supreme [*481] Court have
emphasized the constitutional import of maintaining over-the-air broadcast
stations that provide free public access to "a multiplicity of information
In parallel, universal service has served as a fount of telecommunications
policy. Through a system of regulated telecommunications-provider monopoly
and subscriber cross-subsidy, the government has sought to spread telecommunications
to as many citizens as possible at "just, reasonable, and affordable" rates.
n353 The goal of universal service has not abated even in our era
of increasing telecommunications competition and deregulation. The Telecommunications
Act of 1996 sets forth a complex formula for subsidized access to basic telecommunications
services for rural areas and low-income consumers. n354
Universal service has traditionally been limited to basic services, primarily
telephony. n355 There is a growing sense, however, that as more and
more information and discourse move to cyberspace, access to the Internet
will become a prerequisite to full participation in democratic society.
n356 Although only a beginning, the Telecommunications Act moves in the direction
of including Internet access within the broad ambit of universal service
policy goals. The Act maintains substantial subsidies for Internet communication.
n357 It also provides for subsidized access to advanced services for
schools, hospitals, and libraries. n358 Furthermore, the Act defines
the scope of universal service dynamically: "an evolving [*482]
level of telecommunications services that the FCC shall establish periodically...taking
into account advances in telecommunications and information technologies
and services." n359
In fact, cyberspace seems poised to become the principal arena for public
discourse, carrying a wealth of information and opinion and bringing rich
opportunities for user interaction. As that happens, netizenship may well
become a necessary incident of effective citizenship in the liberal state.
The question is what would happen in a regime of cyberspace self-governance?
A vital part of self-governance is determining who has access to the self-governing
community. n360 If netizens bore sole responsibility for determining
Internet access, and if the federal government were concomitantly to terminate
Internet subsidies, to what extent could we expect netizens to bear the burden
of subsidizing access to those who otherwise would be left offline?
At bottom, it seems highly unlikely that netizens would bear such costs.
Netizens do benefit from a large network of persons with whom they can communicate.
n361 Among other benefits, adding subscribers increases the network's
positive utility and spreads the high fixed costs of the network among more
users, thus bringing down average costs.
Such network benefits do not continue ad infinitum, however. At some point,
adding subscribers places burdens on network communication, whether by causing
congestion or by increasing infrastructure costs. At such a point, additional
subscribers are high-cost users, and the utility of adding still more members
to the network correspondingly diminishes. This point arrives much sooner,
of course, if existing subscribers must subsidize new ones. In that event,
existing subscribers will have a strong incentive either to refuse to subsidize
or to exit the network and establish a new one. n362
Moreover, those dynamics and that gross disparity in access are likely to
occur within cyberspace as well as between the online and offline worlds.
The development of new technologies enabling unprecedented high-speed transfer
of vast amounts digital information will likely lead to [*483]
what Saskia Sassen has labeled "cyber-segmentation." Even beyond unequal
conditions for Internet access, "once in cyberspace users will also encounter
an unequal geography of access - in this case to certain features, certain
sites, and certain high-speed connections." n363 Under such a scenario,
those netizens who can afford it and who live in premium telecommunications
service areas will have access to high-speed access and high-quality content,
including real time video. Others less fortunate will have access only to
the Internet more or less as we know it today, except that content providers
may increasingly gear their production to the Class A Internet, leaving the
Class B Net all the poorer. n364
In sum, even if we take the cyberian claim for self-governance seriously
rather than viewing it as a fairy tale highly dependent on state funding,
the claim provides no mechanism for a widespread distribution of citizenship
or netizenship incidences. Cyberian democracy would at best be akin to that
of the Athenian elite. On distributional grounds alone, it would fall far
short of realizing liberal principles.
V. Why the State?
I have sought to show that a cyberspace unconstrained by the enforcement
of liberal principles might more resemble Hobbes' Leviathan than Lockean
civil society. But that raises a further intriguing question. Why must the
liberal state be the ultimate enforcer of those principles? Why could not
netizens create global metainstitutions within cyberspace to elucidate and
enforce liberal norms? Perhaps, cyberians might argue, such cyberconstitutionalism
could succeed where cyberpopulism, cybersyndicalism, and cyberanarchism could
Three possible objections to a cyberconstitutionalist claim come immediately
to mind. First, a territorial liberal state cannot afford to allow an unproven
cyberspace constitutional authority to be the guardian for liberalism in
cyberspace when online activity so profoundly affects and intermeshes with
the offline world. Second, because a cyberspace constitutional authority
would likely be plagued by the same flaws that, cyberians insist, pervade
territorial liberal states, the cyberian claim would gain little from the
creation of such an authority. Third, a cyberconstitutional authority, unable
to depend on questionable commitment by those it [*484] governs,
would ultimately need to rely on a territorial liberal state to enforce the
authority's decrees protecting liberalism.
The first objection arises because cyberspace norms and practice can impose
significant externalities on the territorial liberal polity. Status discrimination,
distortions in the virtual information arena, poor data privacy protection,
and unequal access to cyberspace networks all undermine the rights of citizens
in the offline world. Indeed, as the Internet assumes an ever greater role
in political, cultural, and economic life, it makes increasingly little sense
to distinguish such online illiberal phenomena from their offline counterparts.
It is thus incumbent on the liberal state to ensure that liberal citizenship
rights receive proper protection in cyberspace.
From the viewpoint of the liberal state, there would be no advantage - and
considerable disadvantage - in delegating authority to a cyberconstitutional
authority to interpret and enforce liberal metanorms in cyberspace. The liberal
state has existed for over 200 years. It has an established tradition of
defining and applying liberal principles. The state's elucidation of those
principles thus has considerable power in shaping social understandings and
norms. n365 State-centered law - both legislation and constitutional
adjudication - carries considerable weight in legitimizing certain beliefs
and practices and delegitimizing others. n366
A cyberauthority, in contrast, would have to start from scratch. It might
be able to design mechanisms, including fines and suspension from the Internet,
to enforce its constitutional proscriptions. But law enforcement power plays
only a limited role in the creation, maintenance, and strengthening of norms.
Liberal principles, like other norms embodied in formal rules, can affect
behavior only if internalized by the population at large. The nascent cyberauthority
would stand at a distinct disadvantage as compared to the state in efforts
to facilitate this internalization. Even if netizens, who now comprise persons
of widely varying backgrounds, attitudes, and interests, could agree on a
constitutional structure, that structure would be highly unstable in the
face of the frequent and dramatic change that characterizes the Internet.
Law and the institutions of the liberal state can draw upon their long history
to give them authority when presented with new challenges. Lacking such history,
the cyberauthority could not. n367
The second objection to the establishment of a cyberspace constitutional
authority is that it would likely suffer from the very same deficits that,
cyberians maintain, plague the territorial liberal state. The Internet Corporation
for Assigned Names and Numbers (ICANN), poised to assume control from the
United States government over Internet domain [*485] name administration,
is a case in point. n368 ICANN's future power should not be underestimated.
No one can establish a publicly accessible web site without an Internet domain
name. Accordingly, if ICANN should decide that domain name registrars may
(or must) deny registration unless the applicant forswears certain sorts
of expression, meets specified criteria of "good standing," or pays a substantial
fee, then those who fail to do so will effectively have no presence on the
Not surprisingly, then, in what David Post colorfully describes as "Cyberspace's
Constitutional Moment," ICANN has become the focal point of intense debate
concerning the representation of various Internet constituencies on the Corporation's
Board of Directors and about what sorts of checks and balances will be instituted
to assure "just governance." n370 In its present configuration, ICANN's
bylaws provide for a system of both geographic and interest group representation.
n371 There will [*486] also be established an independent
third party review panel, authorized to hear claims that the Board of Directors
has "violated the Corporation's articles of incorporation or bylaws."
n372 Among the Bylaws are provisions forbidding the corporation from applying
its policies "inequitably" or subjecting any party to "disparate treatment
unless justified by substantial and reasonable cause." n373 Membership
composition and authority has also been a subject of controversy.
n374 As those matters now stand, anyone who meets criteria to be set by the
Board may register to vote in elections for the At Large Council,
n375 which will in turn select half of the Corporation's eighteen directors.
In short, ICANN's governing structure, as that of any more comprehensive
cyberspace constitutional authority, will likely fall upon the same axes--and
same fault lines--as territorial democracy: citizen versus representative,
majority versus minority, special interest versus public interest, legislature
versus judiciary. Those tensions cannot fully be resolved. Even at its best,
therefore, cyberspace constitutional governance will share what cyberians
perceive to be the fundamental flaws of its offline counterpart.
The third objection to a cyberspace constitutional authority is that even
if such an authority were a desirable end, it is by no means certain that
netizens could establish one without the involvement and backing of the liberal
state. n377 A constitutional order is a public good. Such an order
is [*487] neither self-generating nor self-enforcing.
n378 Its creation requires rational bargaining and some means to bind dissenters
and holdouts. Even if initial agreement is achieved, the order's continued
existence requires a mechanism to insure a high level of commitment in the
face of ever-present incentives to defect. Where enforcement power cannot
be supplied externally - in this case by the state - a commitment strategy
must come from within. n379
As Elinor Ostrom has shown, self-governing institutions do sometimes arise
even without state enforcement. n380 However, a number of variables
that are generally crucial to the establishment and maintenance of such institutions
are absent in the case of cyberspace. These include a small number of decision
makers, a homogeneity of interests, and a history of personal relationship
and mutual trust. n381 In the absence of such qualities, a meta cyberauthority
is highly unlikely to emerge or succeed.
Cyberians posit that cyberspace can generate emergent governing institutions.
They make much of the fact that the Internet is built on a common technical
communication protocol, and that informal emergent institutions such as the
Internet Engineering Task Force were able to develop that protocol and "somehow
[get] hundreds of millions of individuals across the globe to agree on a
common syntax for their electronic conversations." n382 But, like
other institutions of the early Internet, the Internet Engineering Task Force
did consist of a small number of decision makers, with a homogeneity of interests
and a personal relationship. n383 And as is evident from the debate
regarding ICANN's authority and composite structure, that intimate insider
consensus has given way to an interest-group sectarianism as fractious as
any real-world politics. n384
[*488] Cyberspace does contain one sort of social glue that might
substitute for other commitment-enhancing variables found in smaller institutions.
That is network benefits. n385 An Internet user wants the technical
capability to communicate with everyone else on the Internet. A user, or
group of users, who dissents by developing and using a different communications
protocol will be unable to communicate with anyone else, and thus will forfeit
substantial network benefits. As a result, even someone who fervently believes
that she has invented a better protocol is likely to stick with the standard.
But network benefits may well prove insufficient to secure commitment to
a complex constitutional regime. For one, the dissenter loses network benefits
only upon removal from the network. While dissent from the standard communications
protocol automatically removes the dissenter from the network, dissent from
other policy would not. Network benefits will thus help to secure commitment
only if the cyberauthority is able and willing to invoke the extreme sanction
of suspension or expulsion from the principal cyberspace network in order
to enforce compliance. In addition, the desire to remain on the network and
the costs of establishing a competing network will not necessarily trump
all reasons for dissent. The proliferation of filtering systems to block
access to vast numbers of sites carrying what the filterer believes is objectionable
content is evidence that network benefits may give way, at least in part,
before other goals and concerns. It is doubtful, therefore, that network
benefits would be sufficient to prevent secession from an overarching cyberauthority,
especially over hotly contested political and social issues such as those
mediated by political liberalism. A cyberspace constitutional authority,
in sum, would ultimately be thrown back upon the liberal state for the enforcement
of basic citizenship rights.
Cyberconstitutionalism thus fails on three counts to rescue the cyberian
claim for cyberspace self-governance. First, the liberal state would likely
be a more effective guarantor of liberal rights, both online and off, than
would a new, independent cyberspace authority. Second, cyberconstitutionalism
would likely resemble the "top-down" rule and interest group politics of
the territorial liberal state, not the "bottom-up" ordering cyberians envision.
Third, given insurmountable collective action problems, a cyberauthority
is highly unlikely to emerge without the backing of the territorial liberal
VI. The Cyberians' International Claims
I have thus far measured the cyberians' political claims against the benchmark
of the territorial liberal democratic state. But the cyberians' argument
has an international dimension as well. Cyberians assert what I will call
"international claims," which parallel their claims of liberal perfection
and community autonomy. In so doing, cyberians rightly emphasize cyberspace's
global character, underscoring the transnational nature of both Internet
communication and government efforts to regulate cyberspace activity. Cyberspace
self-governance, they insist, is not merely a claim for autonomy against
the domestic governmental institutions of Internet users' own countries.
It is also a claim against foreign governments and international bodies that
might seek to interfere with cyberspace activity. Seen in that light, to
compare the cyberian vision solely with the domestic institutions of the
liberal democratic nation-state, as I have done thus far, misses part of
what the cyberian political claim is all about. This Part seeks to fill that
Cyberians assert that cyberspace should be treated as a separate, self-governing
jurisdiction in the international as well as domestic arena. n386
In support of this argument, they present two sorts of claims that draw upon
liberal democratic theory. The first is directed against foreign government
interference. Cyberians contend that a nation-state's imposition of jurisdiction
over Internet users not physically present within the nation-state runs contrary
to the principle of government by consent of the governed. n387 The
second international claim is directed against the regulation of cyberspace
by international organizations, including United Nations agencies and other
arbitral and regulatory bodies that spawn from multilateral treaties. Cyberians
assert that the liberal and democratic deficit that plagues even nominally
liberal democratic domestic governments is exacerbated in international organs,
where regulators are even farther removed from those they would regulate.
A careful and complete consideration of the cyberians' international claims
would require at least another full article. Here I will present only a very
brief account of these claims. Likewise, I will offer only summary, tentative
arguments in response, what I hope will be the rudiments of future exploration.
A. Foreign Government Interference
Consider the following hypothetical scenario:
[*490] Neo-Nazis living in Texas set up a web site on a server in their home
state. The web site contains the content you might expect: racist and anti-Semitic
diatribes, tributes to Hitler, and photos of Nazi memorabilia. The site professes
to be open only to white Aryans, and prospective visitors are presented with
a dialogue box requiring them to swear that they meet that requirement before
being admitted to the site. Aside from that purported restriction, the site
is accessible to any Internet user anywhere in the world, including Germany.
Neo-Nazi speech of the type appearing on the web site is a crime under German
law, as in many Western democracies. n389 A German prosecutor brings
an indictment against the Texas neo-Nazis. n390 He contends that,
because the site is accessible to those physically present in Germany, the
site operators have violated German law forbidding neo-Nazi speech and fall
within the jurisdiction of Germany's criminal courts. n391
Cyberians would argue that prosecuting foreign web site operators for violation
of domestic law violates the liberal democratic principle of government by
consent of the governed. In their view, Germany could not legitimately assert
its criminal laws over the Texas neo-Nazis because the Texans have neither
played any role in the laws' formulation nor consented to be bound by them.
For cyberians, moreover, the example of the Texans illustrates why cyberspace
should be treated as a separate, self-governing [*491] jurisdiction.
Given web sites' global accessibility, numerous web site operators regularly
run afoul of foreign laws of which the operator is wholly unaware, enacted
by a country that the operator has never visited. n392
The cyberian argument comprises two basic propositions. The first is that
Germany cannot properly legislate or otherwise prescribe law that applies
to the Texans when the Texans have had no role in the law's formulation.
n393 The second is that Germany cannot legitimately subject the Texans
to the jurisdiction of a German court absent their physical presence in that
country. n394 Both propositions are fundamentally incorrect as a matter
of positive international law. n395 But the cyberian claim is not
that Germany's actions violate international law. They argue rather that
Germany's attempt to prescribe and adjudicate its law contravenes liberal
democratic principles. It is to that theoretical point which I will now turn.
The cyberians' first proposition relates to a state's authority to enact
laws applicable to conduct outside the state's territory. Cyberians challenge
the legitimacy of state legislation affecting nonresident foreign nationals
who have had no part in that country's political process. Such legislation,
cyberians maintain, runs contrary to the principle of "government by the
consent of the governed." As David Johnson and David Post contend, the consent
principle "implies that those subject to a set of laws must have a role in
their formulation." n396 However, Internet users generally have no
right to vote or otherwise participate in the democratic process in countries
in which they neither reside nor hold citizenship. Accordingly, as in our
scenario concerning the Texas neo-Nazis, foreign law--even law enacted
[*492] through local democratic process and otherwise comporting with
liberal principles n397 - does not in any way reflect such Internet
users' consent. n398
The problem with this argument is that the Internet users' consent makes
up only one side of the liberal democracy equation. Germany's exercise of
legislative authority with respect to the Texans exemplifies a common irreconcilable
conflict between realizing the democratic will of one country's citizens
and imposing law on nonresident foreigners without their consent. The Texas
web site, although physically located outside Germany, serves to disseminate
neo-Nazi speech within Germany. At the same time, Germany's citizens, we
may assume, have democratically chosen to prohibit the dissemination of neo-Nazi
speech in their country. Indeed, German law combating neo-Nazism lies at
the heart of Germany's postwar constitutionalism, born out of the trauma
of that country's totalitarian past and designed to forge a "militant democracy,"
a liberal state capable of resisting those who would attack the constitutional
order and foment ethnic hatred. n399
Consequently, to deny Germans the possibility of applying their law to the
web site operators would frustrate their fundamental expression of democratic
self-rule. To be certain, Germany's effort to further its political ethos
in the face of foreigners' Internet speech has spillover effects far beyond
Germany's borders. But in our increasingly interconnected world (offline
as well as online), many local ordinances have spillover effects in other
countries. n400 To focus only on whether foreign residents have consented
to those effects is to ignore the legislating country side of the liberal
democracy equation. When, as in this case, foreign resident conduct has substantial
effect within the legislating country and runs strongly against that country's
fundamental public policy, the prescriptive outcome of the [*493]
legislating country's democratic process should prevail. Accordingly, even
though the Texas neo-Nazis have played no part in formulating Germany's law,
its extraterritorial application still comports with liberal principles.
The cyberians' second proposition questions a state's adjudicatory authority.
It asserts that a state may not legitimately subject to its judicial process
foreign nationals not physically present in that country's territory. Cyberians
would contend in this regard that in addition to having no role in the formulation
of the German prohibition, the Texas neo-Nazis have not consented to be bound
by it. Johnson and Post concede that a person who physically enters a country's
territory is generally deemed to consent to be bound by that country's laws.
n402 But, they argue, cyberspace is different, and the difference
derives from notice. Physical boundaries generally have "signposts that provide
warning that we will be required, after crossing, to abide by different rules."
n403 Cyberspace, on the other hand, lacks such signposts. "The Net
enables transactions between people who do not know, and in many cases cannot
know, each other's physical location." n404 The Texas neo-Nazis, in
sum, might well not know or have any reason to know that people are visiting
their site while sitting in front of computers in Germany. And even if they
do know, the nature of Internet communication is such that information is
available simultaneously everywhere, and thus not cannot really be said to
exist in any particular physical location. n405
The cyberians' second proposition is vulnerable on a number of counts. For
one, as Jack Goldsmith and others have pointed out, cyberspace's global reach
means that web site operators should reasonably [*494] foresee
the territorial ramifications of their activity. n406 To use Professor
A manufacturer that pollutes in one state is not immune from the antipollution
laws of other states where the pollution causes harm just because it cannot
predict which way the wind blows. Similarly, a cyberspace content provider
cannot necessarily claim ignorance about the geographical flow of information
as a defense to the application of the law of the place where the information
Nor, as Professor Goldsmith also discusses, would the Texas web site operators
necessarily face a Hobson's choice of either complying with Germany's law
or withdrawing from the web altogether. n408 By employing filtering
technology, they could block access to those with German Internet addresses
(although Germans who sought access through anonymous remailers could probably
sidestep such controls), n409 or they could simply condition access
on telephonic or facsimile proof of geographic location. n410 In addition,
the Texas neo-Nazis could effectively avoid Germany's efforts to enforce
its law by keeping themselves and their assets out of German territory.
n411 In sum, Germany's application and enforcement of its law against the
Texas web site operators would appear to comport with liberal principles,
just as they would accord with international law and practice regarding extraterritorial
Yet underlying the cyberians' international claims is a more profound attack
on Germany's efforts to prescribe, adjudicate, and enforce its law. To one
degree or another, cyberians call into question not only the extraterritorial
reach of Germany's law, but also the fundamental sovereign authority of Germany
and other nation-states. They see in cyberspace a challenge to the nation-state's
liberal credentials and continued efficacy. For cyberians, cyberspace is
a realm in which individuals actually consent to the rules that govern them
because they can always leave rule regimes they find repugnant. In contrast,
citizens' consent to nation-state law "has a strong fictional element" because
no one chooses where to be born and most can ill-afford to move to another
country. n413 True consensual [*495] self-government can
thus best be realized by sharply reducing the province of nation-state law,
by dispersing sovereignty among a "multiplicity of communities and political
bodies," of which cyberspace networks and fora will play a central part.
This is not the place to commence a discussion of the future of the nation-state
in an age of global communication and increasing economic interdependence.
As numerous commentators have argued, n415 however, I will contend
that, at least for the foreseeable future, a global regime of semiautonomous
liberal nation-states represents the best means for fostering liberal rights
and institutions. People live fundamentally in a territorially-based social
and political culture. Cyberians may anticipate "the gradual displacement
of the so-called natural world by the digitized fabricated creations of humans."
n416 But such virtual world hegemony, together with its related notion
of a transcendent cyberspace culture, "seems dangerously na<um i>ve
in the face of people's frequent, intense attachment to their locality as
the appropriate forum for self-assertion and democratic association."
n417 Concomitantly, territorial nation-states remain essential guarantors
of security, productive economic arrangements, health services, and other
safety nets upon which a stable liberal order depends. n418 Moreover,
international relations theorists increasingly view the activist liberal
state as a springboard for protecting human rights worldwide, prompting calls
for, among other measures, global jurisdiction for national [*496]
courts to prosecute human rights violations. n419 Such factors point
toward a regime of what Brian Barry terms "cosmopolitan nationalism,"
n420 a system of national institutions that constitute the principle (though
certainly not exclusive) locus for implementing and adapting universal liberal
In sum, contrary to the cyberians' international claim, liberal principles
may, in appropriate circumstances, support a democratic nation's extraterritorial
application of its laws to foreign Internet users. The desire to further
liberal principles also cautions against a cyberian position that would too
quickly jettison the territorial liberal democratic nation-state.
B. International Organizations
Given what they perceive to be the practical difficulties of nation-state
regulation of the global Internet, cyberians foresee, with considerable foreboding,
a move towards cyberspace regulation by international treaty and international
organizations. n422 Such a regime, they argue, would present in magnified
form the failings of "top-down" nation-state administration. International
regulators would be far removed from those they are seeking to regulate.
Democratic institutions, which according to cyberians, stray far from the
liberal democratic ideal at the national level would face insurmountable
obstacles in the international arena. International regulatory bodies would
both be unaccountable to their broad constituencies and subject to capture
at the hands of organized, well-heeled factions. n423
The cyberians' fear is not entirely unfounded. International treaties and
organizations have been proffered as vehicles for Internet regulation in
a number of instances. n424 Moreover, as many commentators have noted,
[*497] rule through international organization does tend to suffer
from a democratic deficit. n425
Nevertheless, the cyberian juxtaposition of cyberspace self-governance to
top-down regulation by international organs largely presents a false dichotomy.
International law making and enforcement involve a wide variety of actors.
Some are international agencies. But national institutions and nongovernmental
organizations have come to play a significant role in this area as well.
Indeed, as Anne-Marie Slaughter has observed, "today transgovernmentalism
[cooperative regulation by national governmental institutions] is rapidly
becoming the most widespread and effective mode of international governance."
n426 This trend draws momentum from the Internet, which enhances possibilities
for information sharing between, oversight by, and cooperation among law
makers and regulators of different countries. National democratic institutions
are bolstered in the process. n427 Moreover, not all international
organs can be counted as democratic liabilities. Many serve, indeed, to enforce
nation-state compliance with human rights treaties, and to promote the transparency
and accountability of domestic regulatory procedures. n428
In sum, while cyberian concerns regarding a democratic deficit in certain
international bodies may be justified, one cannot extrapolate from those
instances to all "international" regulation of cyberspace activity. In many
cases, we can assume, international--or transgovernmental--Internet regulation
will further, not obstruct, liberal democratic principles.
Cyberians hail cyberspace as the pinnacle of "bottom-up" governance. Digital
communication and data storage, they argue, enable us to overcome [*498]
geographical and cost barriers to disintermediated rule making. The virtual
fora, networks, and rule regimes of cyberspace bring to fruition understandings
and hopes of decentralized, extralegal norm creation. They serve as a shining
example of all that "private ordering" can be.
If so, we need to take a cold, hard look at some of the incongruities and
limitations of private ordering. An untrammeled cyberspace would ultimately
be inimical to liberal democratic principles. It would free majorities to
trample upon minorities and would serve as a breeding ground for invidious
status discrimination, narrowcasting and mainstreaming content selection,
systematic invasions of privacy, and gross inequalities in the distribution
of basic requisites for netizenship and citizenship in the information age.
It is thus incumbent upon the liberal state selectively to regulate cyberspace.
Virtual association should enjoy considerable deference, no less--but no
more--than its offline counterpart. But the most egregious illiberal practices
and norms of the virtual world demand the cautious, but resolute intervention
of international institutions and the territorial liberal state.
n1. John Perry Barlow, A Declaration of the Independence of Cyberspace (visited
Dec. 25, 1999) <http://www.eff.org/barlow/Declaration-Final.html>.
n2. See, e.g., David R. Johnson & David Post, Law and Borders - The Rise
of Law in Cyberspace, 48 Stan. L. Rev. 1367, 1367 (1996) [hereinafter Johnson
& Post, Law and Borders]; David G. Post, Anarchy, State, and the Internet:
An Essay on Law-Making in Cyberspace, 1995 J. Online L. art. 3 (visited Sept.
10, 1998) <http://www.wm.edu/law/publications/jol/post.html> [hereinafter
Post, Anarchy]; David Post & David R. Johnson, The New "Civic Virtue'
of the Internet, in The Emerging Internet 23 (Institute for Information Studies
1998), available at (visited Sept. 28, 1998) <http://www.cli.org/paper4.htm>
[hereinafter Post & Johnson, Civic Virtue]. Commentators who have made
similar arguments include Llewellyn Joseph Gibbons, No Regulation, Government
Regulation, or Self-Regulation: Social Enforcement or Social Contracting
for Governance in Cyberspace, 6 Cornell J.L. & Pub. Pol'y 475 (1997);
I. Trotter Hardy, The Proper Legal Regime for "Cyberspace," 55 U. Pitt. L.
Rev. 993 (1994) (contending that in the absence of some compelling social
reason to the contrary, rules of conduct in cyberspace should be governed
by self-help, custom, and contract of cyberspace participants); Henry H.
Perritt, Jr., Cyberspace Self-Government: Town Hall Democracy or Rediscovered
Royalism?, 12 Berkeley Tech. L.J. 413, 419-20 (1997) (contending that as
a general rule "self-governance is desirable for electronic communities");
Edward J. Valauskas, Lex Networkia: Understanding the Internet Community,
First Monday (Oct. 7, 1996) <http://www.firstmonday.dk/issues/issue4/valauskas/index.html>
(calling for formalization of Internet self-governance).
n3. Since its inception, the Internet domain name system has been administered
by the United States government through contract. In June 1998, the Clinton
Administration announced that, as part of its overall policy of promoting
Internet self-regulation, it would turn over responsibility for such administration
to a new nonprofit corporation. See National Telecomms. and Info. Admin.,
U.S. Dep't of Commerce, Statement of Policy on Management of Internet Names
and Addresses, 63 Fed. Reg. 31,741 (1998). The government subsequently retained
the right to reassert its authority over domain name administration. See
infra note 377.
n4. Presidential Directive on Electronic Commerce (July 1997) <http://www.ecommerce.gov/presiden.htm>.
The Clinton Administration has been highly inconsistent in following its
own Internet self-governance rhetoric. On one hand, in addition to its announced
withdrawal from Internet domain name registration, the Administration has
supported a three-year moratorium on imposing taxes on Internet sales and
has steadfastly insisted that industry self-regulation is the preferred alternative
for protecting Internet user privacy. See Internet Tax Freedom Act, Pub.
L. No. 105-277, 112 Stat. 2681 (1998), available at <http://www.house.gov/cox/nettax/law.html>
(tax moratorium); Clinton Administration Support (last modified Jan. 15,
1999) <http://www.house.gov/cox/nettax/Web-clinton.html> (detailing
Clinton Administration support for the Act); Federal Trade Comm'n, Self-Regulation
and Privacy Online: A Report to Congress (1999) [hereinafter FTC Privacy
Report] (advocating industry self-regulation of online data practices). But
on the other hand, the Administration has forbidden the export of digital
encryption technology, backed legislation (since stricken down as an unconstitutional
burden on free speech) prohibiting the Internet transmission of indecent
material to minors, and sponsored legislation prohibiting the circumvention
of technological measures designed to control online access to and uses of
copyrighted works. See Digital Millennium Copyright Act, Act of Oct. 28,
1998, Pub. L. No. 105-304, 1, 112 Stat. 2860 (short title: "Prohibiting Circumvention");
Reno v. ACLU, 521 U.S. 897 (1997) (striking down Communications Decency Act
of 1996); Jeri Clausing, Internet Tax Debate Returns to the Hill, N.Y. Times
on the Web (Sept. 28, 1999) <http://www.nytimes.com/library/tech/99/09/cyber/capital/28capital.html>
(reporting the Administration's recent plan to lift encryption technology
export controls after years of resisting calls to do so).
n5. Cyberspace includes the physical infrastructure, software, expressive
content, and human activity that make up the Internet, Usenet, World Wide
Web, and other interconnected digital networks. I use the now-conventional
term cyberspace with some hesitancy. To some, the term suggests that communication
over packet-based digital networks constitutes a world unto itself, fundamentally
separate from "offline" life. In contrast I join with other commentators
in insisting that such digital communication is simply another activity,
one increasingly integrated with offline commerce, communication, politics,
and community. See, e.g., Andrew L. Shapiro, The Disappearance of Cyberspace
and the Rise of Code, 8 Seton Hall Const. L.J. 703 (1998); Philip E. Agre,
Life After Cyberspace, 18 EASST Rev. (Sept. 1999) <http://www.chem.uva.nl/easst/easst993.html>.
On the other hand, digital communication over a decentralized, multihub global
network of linked computers is, in many respects, qualitatively different
from offline communication and does present unprecedented challenges to a
wide variety of offline institutions. For that reason, it does make sense
to refer to cyberspace as a distinct communicative realm, just as one might
speak metaphorically of the "world" of academia or law practice. Although
none would seriously contend that either world is a freestanding physical
or social domain, each--like cyberspace--has its own peculiar rules, institutions,
bodies of knowledge, and social practice.
n6. The Internet began as a U.S. Department of Defense initiative. See Steve
Bickerstaff, Shackles on the Giant: How the Federal Government Created Microsoft,
Personal Computers, and the Internet, 78 Tex. L. Rev. 1, 38 (1999). Its use
remains heavily subsidized by the public fisc and by telecommunications regulations
maintaining cross-subsidies from telephone and other non-Internet services.
See id. at 45-55, 82-83; Jonathan Weinberg, The Internet and "Telecommunications
Services": Access Charges, Universal Service Mechanisms and Other Flotsam
of the Regulatory System, 16 Yale J. on Reg. 211 (1999). Moreover, ownership
and possession of the Internet's physical infrastructure of computers and
telecommunications cables is secured by property law, and Internet users
live and work (and garner the material resources needed for Internet access)
in the real world outside cyberspace, governed by the law of territorial
states. See Margaret Jane Radin & R. Polk Wagner, The Myth of Private
Ordering: Rediscovering Legal Realism in Cyberspace, 73 Chi-Kent L. Rev.
1295 (1998) (contending that Internet ordering depends upon a background
of state created and enforced property and contract law); see also A. M.
Rutkowski, Factors Shaping Internet Self-Governance, in Coordinating The
Internet 92 (Brian Kahin & James H. Keller eds., 1997) [hereinafter Coordinating
the Internet] (describing U.S. government and intergovernmental involvement
in Internet administration and development).
n7. The Usenet is a network of discussion groups called newsgroups, each
of which is established for a specific topic, ranging from topics you can
imagine to those you could never imagine. Newsgroup messages are stored on
a computer for a specified period of time, usually a couple of weeks. When
a newsgroup member signs on, she typically reads a list of messages, which
contain hypertext links to the messages themselves. She may then choose to
read some messages and may or may not reply by posting her own message on
the newsgroup bulletin board. The Usenet used to be a completely independent
communications network. It is now functionally interconnected with the Internet.
See Charles D. Siegal, Rule Formation in Non-Hierarchical Systems, 16 Temp.
Envtl. L. & Tech. J. 173, 181-84, 186-91 (1998). New newsgroups are typically
established through an Internet-wide voting procedure. See infra note 48.
n8. See Gibbons, supra note 2, at 493.
n9. On arbitration in cyberspace, see George H. Friedman, Alternative Dispute
Resolution and Emerging Online Technologies: Challenges and Opportunities,
19 Hastings Comm. & Ent. L.J. 695 (1997); Henry H. Perritt, Jr., Jurisdiction
in Cyberspace, 41 Vill. L. Rev. 1, 94-100 (1996) (discussing possibilities
for arbitration to resolve disputes arising from Internet use).
n10. The Internet contains numerous virtual spaces called multi-user dimensions
("MUDs"). A MUD is a computer program that creates a virtual environment
that can be accessed by remote users, who assume the persona of characters
in that world. Many MUDs are games. Others are organized for social or educational
purposes. MUD participants can typically determine the characteristics of
the persona they assume and can determine with which other characters they
will interact. In some MUDs, participants can create and program robots and
other objects for use by their character. Such MUDs are often called "MOOs,"
for MUD-object-oriented. MUDs and MOOs typically follow a set of rules regarding
participant interaction and the characteristics of various virtual objects
and surroundings in which interaction takes place. See Jennifer L. Mnookin,
Virtual(ly) Law: The Emergence of Law in LambdaMOO, 2 J. Computer-Mediated
Comm. (June 1996) <http://www.ascusc.org/jcmc/vol2/issue1/lambda.html>
(describing MOO rules); Timothy Wu, Application-Centered Internet Analysis,
85 Va. L. Rev. 1163, 1197 n.86 (1999) (describing MUDs).
n11. See generally Lawrence Lessig, Reading the Constitution in Cyberspace,
45 Emory L.J. 869 (1996); Lawrence Lessig, The Constitution of Code: Limitations
on Choice-Based Critiques of Cyberspace Regulation, 5 CommLaw Conspectus
181 (1997) [hereinafter Lessig, Constitution of Code]; Joel R. Reidenberg,
Governing Networks and Rule-Making in Cyberspace, 45 Emory L.J. 911 (1996);
Joel R. Reidenberg, Lex Informatica: The Formulation of Information Policy
Rules Through Technology, 76 Tex. L. Rev. 553 (1998).
n12. On norms as "law," see Lawrence Lessig, Social Meaning and Social Norms,
144 U. Pa. L. Rev. 2181 (1996); Robert D. Cooter, Against Legal Centrism,
81 Calif. L. Rev. 417 (1993) (book review). A newly published, but already
seminal work on cyberspace code and architecture as law is Lawrence Lessig,
Code and Other Laws of Cyberspace (1999).
n13. Among numerous examples of judicial intervention are: Brookfield Communications,
Inc. v. West Coast Entertainment Corp., 174 F.3d 1036 (9th Cir. 1999) (instructing
district court to preliminarily enjoin defendant's use of plaintiff's trademark
in defendant's web site domain name and metatags); CompuServe Inc. v. Cyber
Promotions, Inc., 962 F. Supp. 1015 (E.D. Ohio 1997) (enjoining defendants
unsolicited email advertisements as trespass to chattels). Legislation governing
cyberspace activity includes, among many other examples: Digital Millennium
Copyright Act, Act of Oct. 28, 1998, Pub. L. No. 105-304, 1, 112 Stat. 2860
(proscribing circumvention of technology controlling access to copyrighted
works and regulating copyright infringement liability of Internet service
providers); Child Online Protection Act, Pub. L. No. 105-277, tit. XVI, 112
Stat. 2681, 2736-41 (1998) (to be codified at 47 U.S.C. 231) (forbidding
according minors access to web sites containing indecent material); Cal.
Bus. & Prof. Code 17538.45 (West Supp. 1999) (regulating dissemination
of unsolicited email advertisements).
n14. See, e.g., Post & Johnson, Civic Virtue, supra note 2, at 25-26
(arguing that "bottom up" governance in cyberspace markets may be superior
to "top down" rule by traditional democratic debate and legislative action);
David G. Post, Governing Cyberspace, 43 Wayne L. Rev. 155, 170-71 (1996)
(depicting local cyberspace rule making as a prime example of the possibilities
for realizing a "Jeffersonian mode of law-making," a radically decentralized
political order based on individual choice).
n15. See, e.g., James Dale Davidson & Lord William Rees-Mogg, The Sovereign
Individual: How to Survive and Thrive During the Collapse of the Welfare
State 17-26 (1997) (predicting that territorial nation-states will give way
to "merchant republics of cyberspace"); Post, supra note 14, at 163 (contending
that cyberspace may herald the "final days of a governance system relying
on individual sovereign states as primary law-making authority").
n16. See Gibbons, supra note 2, at 509-10; David Post & David R. Johnson,
Chaos Prevailing on Every Continent: A New Theory of Decentralized Decision-Making
in Complex Systems, 73 Chi.-Kent L. Rev. 1055 (1998).
n17. See Gibbons, supra note 2, at 502; Johnson & Post, Law and Borders,
supra note 2, at 1373-74; cf. Dan Burk, Virtual Exit in the Global Information
Economy, 73 Chi.-Kent. L. Rev. 943, 961-72 (1998) (predicting that, by providing
a ready means of virtual mobility, the Internet will spur interjurisdictional
competition to attract business revenue by offering desirable regulatory
regimes); A. Michael Froomkin, The Internet as a Source of Regulatory Arbitrage,
in Borders in Cyberspace 129 (Brian Kahin & Charles Nesson eds., 1997)
(detailing the Internet's "resistance to control").
n18. Post, supra note 14, at 170-71.
n19. On the efficiency claim, see Mark A. Lemley, The Law and Economics of
Internet Norms, 73 Chi.-Kent L. Rev. 1257 (1998); Radin & Wagner, supra
note 6. On the futility of regulation claim, see Lessig, supra note 12, at
34-42, 49-60; Jack L. Goldsmith, Against Cyberanarchy, 65 U. Chi. L. Rev.
1199 (1998); Joel P. Trachtman, Cyberspace, Sovereignty, Jurisdiction, and
Modernism, 5 Ind. J. Global Legal Stud. 561, 573 (1998) ("Anything wrought
by the mind of man is capable of regulation by the mind of man."); see also
Henry H. Perritt, Jr., The Internet as a Threat to Sovereignty? Thoughts
on the Internet's Role in Strengthening National and Global Governance, 5
Ind. J. Global Legal Stud. 423, 435-36 (1998) (arguing that the Internet
can be used as a tool to strengthen rule of law and liberal governance).
n20. See Post & Johnson, Civic Virtue, supra note 2, at 46-51; David
G. Post, The "Unsettled Paradox": The Internet, the State, and the Consent
of the Governed, 5 Ind. J. Global Legal Stud. 521, 535-42 (1998).
n21. See Johnson & Post, Law and Borders, supra note 2, at 1393 (calling
for a "convergence of the intellectual categories of comity in international
relations and the local delegation by a sovereign to self-regulatory groups"
to support cyberspace self-governance); cf. Nicholas Negroponte, Being Digital
7 (1995) (predicting that in the digital age the "values of a nation-state
will give way to those of <elip>electronic communities," and that "we
will socialize in digital neighborhoods in which physical space will be irrelevant").
n22. See Gibbons, supra note 2, at 503 (referring to federal regulation of
cyberspace as "colonialism"); Johnson & Post, Law and Borders, supra
note 2, at 1393 ("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.");
cf. Esther Dyson, Release 2.0: A Design for Living in the Digital Age 43,
104-05 (1997) (contending that state regulation would stifle the community
spirit needed for cyberspace self-governance); Perritt, supra note 2, at
425-32 (proffering criteria for accepting autonomy of cyberspace communities).
n23. See, e.g., Robert C. Ellickson, Order Without Law: How Neighbors Settle
Disputes (1991); Robert D. Cooter, Decentralized Law for a Complex Economy:
The Structural Approach to Adjudicating the New Law Merchant, 144 U. Pa.
L. Rev. 1643 (1996); Richard A. Epstein, Enforcing Norms: When the Law Gets
in the Way, 7 Responsive Community, Fall 1997, at 4; Peter H. Huang &
Ho-Mou Wu, More Order Without More Law: A Theory of Social Norms and Organizational
Cultures, 10 J.L. Econ. & Org. 390 (1994); Avery Katz, Taking Private
Ordering Seriously, 144 U. Pa. L. Rev. 1745 (1996); Jonathan R. Macey, Public
and Private Ordering and the Production of Legitimate and Illegitimate Legal
Rules, 82 Cornell L. Rev. 1123 (1997); Richard H. McAdams, Accounting for
Norms, 1997 Wis. L. Rev. 625; Richard H. McAdams, The Origin, Development,
and Regulation of Norms, 96 Mich. L. Rev. 338 (1997); Randal C. Picker, Simple
Games in a Complex World: A Generative Approach to the Adoption of Norms,
64 U. Chi. L. Rev. 1225 (1997); Cooter, supra note 12 (reviewing Ellickson,
supra). For a more critical assessment, see David Charny, Illusions of a
Spontaneous Order: "Norms" in Contractual Relationships, 144 U. Pa. L. Rev.
1841 (1996); Lawrence Lessig, Social Meaning and Social Norms, 144 U. Pa.
L. Rev. 2181 (1996); Eric A. Posner, Law, Economics, and Inefficient Norms,
144 U. Pa. L. Rev. 1697 (1996); Lewis A. Kornhauser, Are There Cracks in
the Foundations of Spontaneous Order?, 67 N.Y.U. L. Rev. 647, 659-668 (1992)
(reviewing Ellickson, supra).
n24. See Post & Johnson, Civic Virtue, supra note 2, at 49-50.
n25. Id. at 50.
n26. Hayek posited (and here I am necessarily oversimplifying) that a "spontaneous
order," the result of countless interactions in a market tamed only by rules
of law arising organically from those interactions and designed to allow
each individual to pursue his own ends in accordance with his subjective
preferences, represents a far better guarantee of individual liberty than
does collective, democratic decision making. See 1 F.A. Hayek, Legislation
and Liberty: Rules and Order 39-43 (1973) (describing concepts of spontaneous
order and rule of law); F.A. Hayek, The Road to Serfdom 88-100 (1944) (contending
that "political freedom is meaningless without economic freedom" and economic
freedom can be sustained only through competition and individual choice without
n27. See generally Johnson & Post, Law and Borders, supra note 2; Post,
supra note 20.
n28. See David R. Johnson & David G. Post, And How Shall the Net Be Governed?:
A Meditation on the Relative Virtues of Decentralized, Emergent Law, in Coordinating
the Internet, supra note 6, at 62, 71-73 (arguing that the Internet poses
problems of democratic deficit and regulatory capture).
n29. Don Herzog, Some Questions for Republicans, 14 Pol. Theory 473, 480
n30. See Michael W. Doyle, Kant, Liberal Legacies, and Foreign Affairs, 12
Phil. & Pub. Aff. 205, 206-09 (1986) (defining liberal democracies as
having four major characteristics: (1) protection of private property; (2)
a market economy; (3) equality under the law and respect for human rights;
and (4) a representative government deriving its authority from the consent
of individuals); Steven R. Ratner, New Democracies, Old Atrocities: An Inquiry
in International Law, 87 Geo. L.J. 707, 707 (1999) (defining liberal or constitutional
democracy as "a political system with governments elected by popular majority,
and with the rule of law enshrined to protect those not in the majority").
n31. Indeed, the existence of democratic institutions may be seen as an instance
of individual liberty. International law has increasingly recognized the
right to political participation in democratic elections as an independent
human right, not merely as good policy in support of individual rights against
an overreaching state. See, e.g., European Parliament Resolution 78/95, P60,
1995 O.J. (C 126) 126 ("The right to political participation in the political
process is a fundamental and universal human right, as is the establishment
of representative democracy.").
n32. See Philip Pettit, Republicanism: A Theory of Freedom and Government
18 (1997). Pettit juxtaposes "negative liberty" not only against "public
liberty" (also termed "ancient" or "positive" liberty), but also against
"republican liberty," meaning freedom from domination, another's privilege
to interfere arbitrarily with one's individual choice. Id. at 18-31. In his
classic discussion of negative liberty, Isaiah Berlin contrasts it with "positive
liberty," an individual's right of self-mastery and political participation,
which may or may not be coterminous with others' understanding of "public
liberty." See generally Isaiah Berlin, Two Concepts Of Liberty (1958). As
Stephen Holmes points out, the borders between these various types of individual
liberty are far more permeable than Berlin and others have suggested. See
Stephen Holmes, Passions and Constraint: On the Theory of Liberal Democracy
28-30 (1995). Indeed, all play some part in traditional liberal theory. See
Joshua Cohen, Democracy and Liberty, in Deliberative Democracy 185 (John
Elster ed., 1998) (maintaining that negative liberties may be a necessary
condition for democratic governance in a pluralist society).
n33. For a cogent refutation of the notion that liberalism is inherently
hostile to democracy, see Holmes, supra note 32, at 27-36.
n34. See David Held, Models of Democracy 88 (2d ed. 1996) (noting that modern
liberal democracy posits that "the protection of liberty requires a form
of political equality among all mature individuals: a formally equal capacity
to protect their interests from the arbitrary acts of either the state or
fellow citizens"); see also John Rawls, Political Liberalism 289-371 (1993)
(including "political liberties" among basic liberal liberties).
n35. See Holmes, supra note 32, at 236-66 (arguing that the redistributionist
welfare state fully comports with traditional liberal theory); 4 John Stuart
Mill, Principles of Political Economy 775-941 (J.M. Robson ed., 1965) (1848)
(decrying capitalism's stultifying impact on wage earner dignity and independence
of thought and advocating syndicalist system of worker ownership and election
of management); John Rawls, A Theory of Justice 225-27 (1971) (noting that
political liberties and democratic institutions "lose much of their value
whenever those who have greater private means are permitted to use their
advantages to control the course of public debate"); Joseph Raz, The Morality
of Freedom 425-29 (1986) (arguing that the liberal state must promote individual
autonomy by guaranteeing that certain goods are made available to its citizens).
n36. See Held, supra note 34, at 253-60 (describing neoliberal thought).
n37. As Locke put it, legislative power is "but a delegated Power from the
People" and "the Legislative being only a Fiduciary Power to act for certain
ends, there remains still in the People a Supreme Power to remove or alter
the Legislative, when they find the Legislative act contrary to the trust
reposed in them." John Locke, Two Treatises Of Government, II, 149; see also
Holmes, supra note 32, at 181 (discussing Mill's support of a trustee as
opposed to a delegate theory of representation). For further discussion of
this liberal basis for representative democracy, see Holmes, supra note 32,
at 32-34; Pettit, supra note 32, at 9.
n38. James M. Buchanan & Gordon Tullock, The Calculus of Consent: Logical
Foundations of Constitutional Democracy 46 (1962) (referring to human and
property rights as "minimal collectivization").
n39. Held, supra note 34, at 255 (paraphrasing Robert Nozick); see Robert
Nozick, Anarchy, State and Utopia 149-74 (1974).
n40. See generally Hayek, supra note 26; Nozick, supra note 39.
n41. See Buchanan & Tullock, supra note 38, at 62.
n42. E.g., Barlow, supra note 1; Dyson, supra note 22, at 1.
n43. See, e.g., Post, supra note 20, at 538 (viewing the social contract,
in Nozick's terms, as an agreement among prepolitical individuals, not between
a sovereign people and their governing institutions).
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).
n230. See, e.g., Daniel A. Farber & Philip P. Frickey, Law and Public
Choice 8 (1991) (rejecting the "deep pessimism of some portions of the public
choice literature"); Margaret Jane Radin, Contested Commodities 214-23 (1996)
(presenting a cogent critique, from a Deweyan perspective, of public choice
theory's reductive description of democracy as a marketplace of self-interested
profit maximizers); Eric A. Posner, Law, Economics, and Inefficient Norms,
144 U. Penn. L. Rev. 1697, 1703 (1996) (noting that "crude" public choice
arguments "do not account for the complicated motives of legislators, the
institutional constraints on legislation, or the numerous statutes that seem
to improve on the common law") (footnote omitted).
n231. See Perritt, supra note 19, at 435-36 (noting that the Internet can
be used to increase government transparency and strengthen the rule of law).
n232. See Sunstein, supra note 87, at 183-85. Sunstein also notes the potential
dangers of reflexive rule by Internet public opinion poll. See id. at 185-87.
n233. See Margie Wylie, Virtual Snobbery: If You're Not on the List, You
Don't Get into Some Net Areas, New Orleans Times-Picayune, Jan. 14, 1999,
n234. But see U.S. Department of Education, Office for Civil Rights, Docket
No. 09-93-2202, Letter from John E. Palomino, Regional Civil Rights Director
to Robert F. Agrella, President, Santa Rosa Junior College, June 23, 1994,
at 4 (conveying that the "OCR anticipates finding that the College violated
Title IX [of the Educational Amendments of 1972] when it established<elip>gender
segregated computer bulletin board conferences").
n235. As the New Yorker cartoon depicting two dogs facing a computer screen
puts it, ""On the Internet, no one knows you're a dog.'" Peter Steiner, cartoon,
New Yorker, July 5, 1993, at 61. In ACLU v. Miller, 977 F. Supp. 1228 (N.D.
Ga. 1997), a federal district court held unconstitutional, on First Amendment
grounds, a state law prohibiting anonymous and pseudonymous electronic communication.
It is highly unlikely that similar prohibitions by nonstate entities, such
as Internet service providers, would meet a similar fate.
n236. See Jeri Clausing, New Data Pipeline Holds Promise of a Better Internet,
N.Y. Times, Mar. 1, 1999, at C1.
n237. See supra notes 192-96; see also Helen Nissenbaum, Protecting Privacy
in an Information Age: The Problem of Privacy in Public, 17 Law & Phil.
559, 576-77 (1998).
n238. Eugene Volokh, Freedom of Speech in Cyberspace from the Listener's
Perspective: Private Speech Restrictions, Libel, State Action, Harrassment,
and Sex, 1996 U. Chi. Legal Forum 377, 391.
n239. Cf. Kymlicka, supra note 205, at 108-15 (canvassing arguments for special
rights for national minorities in order to rectify political and cultural
disadvantages and thus to further the liberal principle of equality); id.
at 121 (discussing argument that preserving cultural diversity has value
for the liberal polity as a whole); see also Jonathan Lesser, For Indian
Nations, Virtual Trade Routes, N.Y. Times, Oct. 14, 1999, at D1 (reporting
on efforts to rekindle trade among Indian tribes through the use of an electronic
bulletin board closed to non-Indians).
n240. Rotary International is an organization of business persons and professionals,
founded in 1905, with chapters in numerous communities in the United States
and other countries. See Rotary International (visited Dec. 25, 1999) <http://www.rotary.org>.
In Board of Directors of Rotary Int'l v. Rotary Club of Duarte, 481 U.S.
537 (1987), the Supreme Court held that a California antidiscrimination law
that required California Rotary Clubs to admit women did not violate Rotary
International's First Amendment right of association, and that Rotary International
could not expel a California Rotary Club for admitting women. I am told that
Rotary International no longer discriminates against women, and I do not
mean to suggest that the organization would actually establish a network
that discriminates on the base of race, gender or religion.
n241. Sunstein, supra note 87, at 165.
n242. See id. at 163.
n243. See Pettit, supra note 32, at 70-73.
n244. See, e.g., Civil Rights Act of 1964, 42 U.S.C. 2000a (1994); Cal. Civ.
Code 51.5 (West 1982 & Supp. 1999); 775 Ill. Comp. Stat. Ann. 5/5-102
(West 1993 & Supp. 1999); Mass. Gen. Laws Ann. ch. 272, 92A (West 1990
& Supp. 1999); Mo. Ann. Stat. 213.065 (West Supp. 1999); N.J. Stat. Ann.
10:5-1 to 10:5-42 (West 1993 & Supp. 1999); N.Y. Civ. Rights Law 40 (McKinney
1992 & Supp. 1999).
n245. See New York State Club Ass'n v. City of New York, 487 U.S. 1 (1988).
n246. See Hurley v. Irish-American Gay, Lesbian and Bisexual Group, 515 U.S.
n247. See Roberts v. United States Jaycees, 468 U.S. 609 (1984) (holding
that the Jaycees is a "public accommodation" under Minnesota Human Rights
Act); Dale v. Boy Scouts of Am., 706 A.2d 270 (N.J. Super. Ct. App. Div.
1998), cert. granted, No. 99-699, 2000 U.S. Lexis 509 (Jan. 14, 2000) (holding
that the Boy Scouts of America is a "place of public accommodation" under
New Jersey's law against discrimination), aff'd, 734 A.2d 1196 (N.J. 1999).
But see Welsh v. Boy Scouts of Am., 993 F.2d 1267 (7th Cir. 1993) (holding
that the Boy Scouts of America is not a place of public accommodation under
Title II of the Civil Rights Act of 1964).
n248. For an illuminating discussion of whether existing public accommodation
statutes might pertain to cyberspace, see Volokh, supra note 238, at 390-97.
n249. Significantly in that regard, a recent Department of Commerce study
found that persons of color are much more likely than whites to use the Internet
to look for a job. See Digital Divide, supra note 200, at 40.
n250. Pub. L. No. 104-104, 104, 110 Stat. 56, 86; see also Angela J. Campbell,
Universal Service Provisions: The "Ugly Duckling" of the 1996 Act, 29 Conn.
L. Rev. 187, 196 (1996) (describing those antidiscrimination provisions and
their background). Somewhat more speculatively, the constraining effects
of discrimination may also be exacerbated by secondary discrimination. In
addition to refusing to carry messages from end users of a certain status,
a network or telecommunications carrier might also deny interconnection to
other networks and carriers that fail to join in such discrimination. Since
cyberspace messages must travel across numerous interconnected carriers in
order to connect the parties to a communication, such third-party, secondary
discrimination could severely restrict user access, especially if widespread
or conducted by entities with market power. For a discussion of third-party
discrimination in the context of telecommunications common carrier regulation,
see Eli M. Noam, Will Universal Service and Common Carriage Survive the Telecommunications
Act of 1996?, 97 Colum. L. Rev. 955, 973-75 (1997).
n251. See Sunstein, supra note 87, at 151-57.
n252. See id. at 155-57 (discussing racial discrimination as perceived proxy
for market considerations).
n253. See Pettit, supra note 32, at 70-73.
n254. See id.
n255. See generally Note, State Power and Discrimination by Private Clubs:
First Amendment Protection for Nonexpressive Associations, 104 Harv. L. Rev.
1835 (1991). For an insightful discussion of that case law as it might pertain
in cyberspace, see Volokh, supra note 238, at 390-97.
n256. See Hurley v. Irish-American Gay, Lesbian and Bisexual Group, 515 U.S.
n257. See Roberts v. United States Jaycees, 468 U.S. 609, 627-28 (1984).
n258. New York State Club Assn. v. City of New York, 487 U.S. 1, 13 (1988).
The Court has also recognized the possibility that members of a small, distinctly
private organization might be able to discriminate on the basis of the right
of intimate association. See Board of Directors of Rotary Int'l v. Rotary
Club of Duarte, 481 U.S. 537, 545 (1987) (stating that "the First Amendment
[right of association] protects those relationships, including family relationships,
that presuppose "deep attachments and commitments to the necessarily few
other individuals with whom one shares not only a special community of thoughts,
experiences, and beliefs but also distinctively personal aspects of one's
life' " (quoting Roberts, 468 U.S. at 619-20)); Roberts, 468 U.S. at 620
(stating that only relationships arising within the family or small, private
organizations have the "sorts of qualities [that] are likely to reflect the
considerations that have led to an understanding of freedom of association
as an intrinsic element of personal liberty"). As yet, however, the Court
has not accorded protection on this basis to any private club or association
engaged in status discrimination. See Note, supra note 255, at 1842.
n259. Eugene Volokh opposes state intervention on the discussion group level
out of a concern that the state should not be involved in overriding the
discussants' own assessment that the discrimination is relevant to the discussion
topic. See Volokh, supra note 238, at 396. Professor Volokh's point is certainly
well taken, but it seems to me that the harm caused by pervasive discrimination
would justify such state intervention, and that assessment of the nexus between
discrimination and topic would not be qualitatively different than state
assessment of whether discrimination is necessary for effective advocacy.
n260. Such moderator involvement distinguishes moderated from unmoderated
groups. See Volokh, supra note 238, at 190.
n261. For example, news administrators determine which Usenet newsgroups
will be available on the local network. See id. at 189-90.
n262. See, e.g., CompuServe Inc. v. Cyber Promotions, Inc., 962 F. Supp.
1015, 1019 (E.D. Ohio 1997) (describing CompuServe's efforts to block unsolicited
email advertising from CompuServe customers).
n263. See Shapiro, supra note 49, at 45-46 (describing personalized information
n264. See Shapiro, supra note 49, at 105-14; Kathleen M. Sullivan, First
Amendment Intermediaries in the Age of Cyberspace, 45 UCLA L. Rev. 1653,
1668-69 (1998); Eugene Volokh, Cheap Speech and What It Will Do, 104 Yale
L.J. 1805, 1807 (1995).
n265. See Volokh, supra note 238, at 386-90.
n266. See C. Edwin Baker, Giving the Audience What It Wants, 58 Ohio St.
L.J. 311 (1997); Owen M. Fiss, Free Speech and Social Structure, 71 Iowa
L. Rev. 1405, 1412-13 (1986).
n267. See Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180 (1997) (upholding
constitutionality of statutory requirement that cable television systems
dedicate some of their channels to local broadcast television stations);
Red Lion Broad. Co. v. FCC, 395 U.S. 367 (1969) (upholding constitutionality
of the fairness doctrine). I am, of necessity, oversimplifying; broadcast
and cable regulation have followed a tortured path and have been justified
by various rationales. See Thomas G. Krattenmaker & Lucas A. Powe, Jr.,
Regulating Broadcast Programming 277-96 (1994) (maintaining that efforts
of the FCC, courts, and Congress to regulate broadcast programming reflect
poor regulatory policy); Glen O. Robinson, The Electronic First Amendment:
An Essay for the New Age, 47 Duke L.J. 899, 908-45 (1998) (presenting critical
survey of broadcast and cable regulation); Jonathan Weinberg, Broadcasting
and Speech, 81 Calif. L. Rev. 1103, 1110-30 (1993) (discussing history of
the United States' broadcast regulatory system and its current structure).
n268. See Thomas G. Krattenmaker, Telecommunications Law and Policy 307-20
(2d ed. 1998).
n269. See generally Robert C. Post, Subsidized Speech, 106 Yale L.J. 151
(1996). Through copyright law, the state has also defined and delimited property
rights in original expression so as to encourage creative contributions to
the store of knowledge and to allow modifications and reformulations of existing
expression. See Netanel, supra note 227, at 347-62.
n270. The term "cheap speech" is from Eugene Volokh's then-prescient 1995
article. Volokh, supra note 264. As noted below in the text accompanying
notes 275-77, I suspect that the next generation of the Internet will contain
far more expensive, intermediary-directed speech than Professor Volokh envisioned
in 1995. Professor Volokh is not a "cyberian" in the sense of generally favoring
cyberspace self-governance, but he is a leading opponent of state regulation
of online (and offline) speech. See, e.g., Volokh, supra note 238; Volokh,
supra note 264.
n271. See Jerry Berman & Daniel J. Weitzner, Technology and Democracy,
64 Soc. Res. 1313 (1997) (emphasizing decentralized, interactive capabilities
of cyberspace communication).
n272. See Sullivan, supra note 264, at 1670; Volokh, supra note 264, at 1836-37.
n273. My comments here draw heavily on Sunstein, supra note 87, at 186-87.
See also Shapiro, supra note 49, at 105-14.
n274. See Volokh, supra note 264, at 1834-35.
n275. As of this writing, Time Warner, Viacom, and Disney are the three largest
media conglomerates. Each has holdings in movie and television production,
cable programming, publishing, music, broadcasting, and theme parks, and
a growing presence on the web. See Measuring a Combined Viacom/CBS Against
Other Media Giants, N.Y. Times, Sept. 8, 1999, at C15. America Online's acquisition
of Time-Warner, announced just before this Article went to press, will likely
greatly hasten cyberspace's transformation from virtual street corner to
mass media market.
n276. Eugene Volokh predicts that trusted media critics will be the new intermediaries,
that authors will not send their works to publisher intermediaries, but rather
to reviewers for what they hope will be a positive recommendation. See Volokh,
supra note 264, at 1815-16. This may well happen to a greater extent than
today. But authors will still want to find a publisher-like sponsor to market
their work, and advertising will still play a large role in influencing consumers'
n277. See Bruce M. Owen & Steven S. Wildman, Video Economics 101-50 (1992)
(noting that content providers' congenital bias against minority tastes and
in favor of large audiences' tastes is exacerbated in media characterized
by firm concentration and in media supported by advertising).
n278. See Baker, supra note 266; Benjamin R. Barber, The Market as Censor:
Freedom of Expression in a World of Consumer Totalism, 29 Ariz. St. L.J.
501, 511 (1997).
n279. In today's Internet, "to create a Web page that will be publicly accessible
to millions of Internet users around the world, one need only find an Internet-connected
computer and, often, pay that operator of that computer for Web-site hosting
service." Berman & Weitzner, supra note 271, at 1314. That will not likely
change in the near future. But in many instances, few Internet users will
actually visit the site unless considerable sums are spent on marketing.
n280. But see Sunstein, supra note 87, at 199-200 (contending that congressionally
mandated public access and preferential telecommunications rates in order
to promote expressive diversity in the face of market homogenization might
survive First Amendment scrutiny).
n281. For a discussion of the possible role of public television in the digital
age, see Monroe E. Price, Public Television in America Project: Public Television
and New Technologies, 1 Int'l J. Com. L. & Pol'y (1998) <http://www.digital-law.net/ijclp
webdoc 2 1 1998.html>.
n282. An interesting question is the extent to which the state may use its
fiscal power to support certain types of expression and not others in cyberspace.
Supreme Court jurisprudence grants the government largely unconstrained power
to subsidize such speech as it prefers and to refuse to subsidize other speech.
See Post, supra note 269. Yet, commentators raise the concern that state
subsidies for expression may give the state undue power in the marketplace
for ideas. See, e.g., Marci A. Hamilton, Art Speech, 49 Vand. L. Rev. 73,
112-19 (1996). As Sandy Levinson argues, however, state endorsement of some
ideas at the expense of others is inevitable. See generally Sanford Levinson,
The Tutelary State: "Censorship," "Silencing," and the "Practices of Cultural
Regulation," in Censorship and Silencing: Practices of Cultural Regulation
195 (Robert C. Post ed., 1998) [hereinafter Censorship and Silencing]. In
any event, the concern of undue state influence seems particularly unjustified
in cyberspace, where state-supported expression faces enormous competition
from all corners and expression that does not receive state support will
still have some outlet.
n283. Levinson, supra note 282, at 196.
n284. See Frederick Schauer, The Ontology of Censorship, in Censorship and
Silencing, supra note 282, at 147, 163-64.
n285. See R. Polk Wagner, Filters and the First Amendment, 83 Minn. L. Rev.
755, 760-69 (1999); Jonathan Weinberg, Rating the Net, 19 Hastings Comm.
& Ent. L.J. 453 (1997); Paul Resnick, Filtering Information on the Internet,
Sci. Am., Mar. 1997, at 62, 62-64.
n286. Esther Dyson, Intellectual Property on the Net (visited Jan. 7, 2000)
<http://www.eff.org/pub/Publications/Esther Dyson/ip on the net.article>,
cited in Robinson, supra note 267, at 969.
n287. On the other hand, manufacturer-customized browsers may channel users
towards certain sites, creating what Andrew Shapiro calls "screen bias."
Shapiro, supra note 49, at 95-97.
n288. See Wagner, supra note 285, at 761-64.
n289. For a more thorough explanation of PICS technology and its applications,
see Paul Resnick & James Miller, PICS: Internet Access Controls Without
Censorship, 39 Communications of the ACM 87 (1996), available at (visited
Dec. 25, 1999) <http://www.w3.org/PICS/iacwcv2.htm>.
n290. See Goldsmith, supra note 19, at 1227 n.117.
n291. See Wagner, supra note 285, at 765-66.
n292. Walter Forbes, A Store as Big as the World, in Electronic Marketplace,
supra note 180, at 63, 72-75.
n293. Smart agents may perform other functions as well, including contract
negotiation and monitoring complex systems. See Denos Gazis, PASHAs: Advanced
Intelligent Agents in the Service of Electronic Commerce, in Electronic Marketplace,
supra note 180, at 145.
n294. Lawrence Lessig, Tyranny in the Infrastructure, Wired, July 1997, at
n295. Simson Garfinkel, Good Clean PICS: The Most Effective Censorship Technology
the Net Has Ever Seen May Already Be Installed on Your Desktop, HotWired
(Feb. 5, 1997) <http://www.hotwired.com/packet/garfinkel/97/05/index2a.html>.
n296. See, e.g., Lawrence Lessig, What Things Regulate Speech: CDA 2.0 vs.
Filtering, 38 Jurimetrics J. 629 (1998).
n297. See Joshua Micah Marshall, Will Free Speech Get Tangled in the Net?,
Am. Prospect, Jan.-Feb. 1998, at 46 (contending that content filtering makes
majority silencing of dissenters even more feasible than in the past).
n298. See Sullivan, supra note 264, at 1679-80 (considering whether government
subsidies for access to unfiltered content or bans on the use of filters
would pass First Amendment muster).
n299. See Lessig, supra note 12, at 180; Shapiro, supra note 49, at 105-09.
n300. See Wagner, supra note 285, at 762.
n301. See id. at 763 n.20. Indeed, Solid Oak Software, Cybersitter's manufacturer,
has threatened to block all 2500 web sites hosted by an Internet filtering
critic's network service provider, unless the provider removed the critic's
site from the provider's network. See Rebecca Vesely, CyberSitter Goes After
Teen, HotWired (Dec. 9, 1996) <http://www.wired.com/news/politics/0,1283,901,00.html>,
cited in Wagner, supra, at 763 n.20.
n302. Of course, offline intermediaries are not required to disclose their
editorial policies. But this seems an instance in which digital technology
makes possible a greater realization of liberal principles than in the offline
n303. Version 4.0 of Microsoft's Internet Explorer gives the user the possibility
to choose whether unrated pages will be seen. Contrary to the possible scenario
I have described in the text, the factory default setting for that browser
is to allow unrated sites to be seen. See Wagner, supra note 285, at 765-66.
n304. Service provider and employer blocking of email sent to subscribers
and employees should be subject to a similar notice requirement as I have
proposed with regard to web filtering. A number of courts have held that
Internet service providers may block unsolicited email, without implicating
the First Amendment, by applying technological self-help or suing senders
of unsolicited email for trespass to chattel. See, e.g., CompuServe v. Cyber
Promotions, Inc., 962 F. Supp. 1015 (S.D. Ohio 1997) (holding that injunction
prohibiting delivery of unsolicited email advertisements to CompuServe subscribers,
on grounds that unsolicited deliveries were a trespass to chattel, did not
implicate the First Amendment); Cyber Promotions, Inc. v. America Online,
Inc., 948 F. Supp. 436 (E.D. Pa. 1996) (holding that since AOL is a purely
private actor, it could use self-help to block Cyber Promotions' sending
of unsolicited email advertisements to AOL subscribers without implicating
First Amendment). A pending action concerns whether Intel Corp. may obtain
an injunction against the distribution of emails to Intel employees, detailing
Intel's allegedly abusive and discriminatory employment practices, without
implicating the First Amendment. See Intel Corp. v. Hamidi, No. 98AS05067
(Cal. Super. Ct. filed Oct. 6, 1998). Whatever the merits of the Cyber Promotions
decisions and of the Hamidi claim as a matter of First Amendment doctrine,
at the very least would-be recipients of such emails should be entitled,
as a matter of free speech policy, to know that their service provider or
employer is preventing delivery of emails and to obtain contact information
for the prospective email sender so that they may arrange to receive the
emails at another address if they so wish. Of course, a legal requirement
that the service provider or employer provide such information might infringe
that entity's free speech rights. But, on balance, I would argue, the would-be
recipient's free speech interest in receiving notice should prevail. For
a more detailed discussion of this issue in connection with the Hamidi case,
see Developments - Cyberspace, supra note 111, at 1622-34.
n305. See Post, supra note 61.
n306. See Lemley, supra note 19, at 1284-85; see also (visited Oct. 17, 1999)
<http://www.sputum.com> (S.P.U.T.U.M. portal web site).
n307. The web site of the Realtime Blackhole List is (last visited Oct. 17,
n308. Lawrence Lessig, The Spam Wars, Industry Standard, Dec. 31, 1998, available
at (visited Nov. 1, 1999) <http://www.thestandard.com/articles/display/0,1449,3006,00.html>.
Unlike S.P.U.T.U.M., which has barred all messages from the offending service
providers, the Realtime Blackhole List (RBL) activists merely assist in barring
messages sent to customers of those service providers whose administrators
have elected to avail themselves of RBL's assistance.
n309. See id.
n310. Post, supra note 115; cf. Perritt, supra note 2, at 440-42 (suggesting
that a group of Usenet administrators who cooperate in canceling messages
may engage in "fair" rule making because anyone who objects to their decisions
can post her views in their newsgroup, but questioning whether cancellation
constitutes fair adjudication absent some due process for the target).
n311. Post, supra note 115, at text accompanying nn. 11-12.
n312. Sadly, financial strength plays an inordinate role in the legislative
process as well, at least in the United States. But most agree that this
is an aberration from the ideal, and a problem begging for a political solution,
such as through campaign finance reform. In cyberspace, however, there are
no metarules against directly or indirectly buying votes. Indeed, the market
view of alternate rule regimes would find perfectly acceptable a tying arrangement
requiring acceptance of a given rule regime as part of the purchase of a
given product or service.
n313. See Lemley & McGowan, supra note 114, at 560. As Lemley and McGowan
note, users do not always want to communicate with everyone. Users often
want to filter out certain specified expression. But that applies only to
the unwanted expression itself, not to messages and sources of information
that bear no relation to the unwanted expression except that they are relayed
by a target service provider.
n314. See id. at 561.
n315. See The New York Times on the Web, Privacy Information (visited Nov.
1, 1999) <http://www.nytimes.com/subscribe/help/privacy.html>.
n316. See id.
n317. See Berners-Lee, supra note 106, at 144-46; Jerry Kang, Information
Privacy in Cyberspace Transactions, 50 Stan. L. Rev. 1193, 1199 (1998); Schwartz,
supra note 147.
n318. See Kang, supra note 317, at 1223-31, 1238-40; Nissenbaum, supra note
237, at 575-78.
n319. See Nissenbaum, supra note 237, at 586-90.
n320. The Supreme Court has recognized the privacy implications of digital
data aggregation in the context of criminal records:
The issue here is whether the compilation of otherwise hard-to-obtain information
alters the privacy interest implicated by disclosure of that information.
Plainly there is a vast difference between the public records that might
be found after a diligent search of courthouse files, county archives, and
local police stations throughout the country and a computerized summary located
in a single clearinghouse of information.
United States Dep't of Justice v. Reporters Comm. for Freedom of the Press,
489 U.S. 749, 764 (1989).
n321. See Kang, supra note 317, 1196-97 (describing the results of several
n322. See National Telecommunications and Info. Admin., Dep't of Commerce,
Privacy and the NII: Safeguarding Telecommunications - Related Personal Information
(1995) <http://www.ntia.doc. gov/ntiahome/privwhitepaper.html>.
n323. See, e.g., Paul M. Schwartz & Joel R. Reidenberg, Data Privacy
Law: A Study of United States Data Protection 39-42 (1998) (arguing, in line
with the European view, that data privacy should be deemed both an individual
civil right and a precondition for individual autonomy and civic participation);
see also Pamela Samuelson, A New Kind of Privacy? Regulating Uses of Personal
Data in the Global Information Economy, 87 Calif. L. Rev. 751, 777 (1999)
(book review) (noting that the civil liberties view of data privacy enjoys
broad support in Europe, but not in the U.S., at this time).
n324. Article 17 of the International Covenant on Civil and Political Rights
1. No one shall be subjected to arbitrary or unlawful interference with his
privacy, family, home or correspondence, nor to unlawful attacks on his honour
2. Everyone has the right to the protection of the law against such interference
International Covenant on Civil and Political Rights, art. 17, opened for
signature Dec. 19, 1966, 999 U.N.T.S. 172, 177. Article 8(1) of the European
Convention provides: "Everyone has the right to respect for his private and
family life, his home and his correspondence." Convention for the Protection
of Human Rights and Fundamental Freedoms, art. 8, Nov. 4, 1950, 213 U.N.T.S.
n325. See Lee A. Bygrave, Data Protection Pursuant to the Right of Privacy
in Human Rights Treaties, 6 Int'l J.L. & Info. Tech. 247 (1998); see
also Information Infrastructure Task Force, Privacy and the National Information
Infrastructure: Principles for Providing and Using Personal Information (June
6, 1995), available at (visited Jan. 5, 2000) <http://www.iitf.nist.gov/ipc/ipc/ipc-pubs/niiprivprin
final.html> [hereinafter Information Infrastructure Task Force] (defining
information privacy as "an individual's claim to control the terms under
which personal information--information identifiable to the individual--is
acquired, disclosed, and used").
n326. Convention for the Protection of Individuals with Regard to Automatic
Processing of Personal Data, Jan. 28, 1981, Europ. T.S. No. 108.
n327. The Directive states that its goal "is to protect fundamental rights
and freedoms, notably the right to privacy, which is recognized both in Article
8 of the European Convention for the Protection of Human Rights and Fundamental
Freedoms and in the general principles of Community law." Council Directive
95/46/EC, 1995 O.J. (L 281) 31.
n328. For a comprehensive discussion of the Directive's provisions, see Peter
P. Swire & Robert E. Litan, None of Your Business: World Data Flows,
Electronic Commerce, and the European Privacy Directive (1998); Paul M. Schwartz,
European Data Protection Law and Restrictions on International Data Flows,
80 Iowa L. Rev. 471, 473-88 (1995). Much to the consternation of U.S. officials,
the Directive permits the sending of personal information only to countries
with "adequate" privacy protection, which is to say at a level similar to
that ensured in the EU.
n329. Information Infrastructure Task Force, supra note 325; FTC Privacy
Report, supra note 4. The Administration did support legislation, enacted
by Congress in 1998, to protect the privacy of children online. See Children's
Online Privacy Protection Act of 1998, 15 U.S.C. 6501-6506 (Supp. 1999).
It has also recently promulgated detailed proposed regulations requiring
a measure of privacy protection for patients' medical data. See Standards
for Privacy of Individually Identifiable Health Information; Proposed Rule,
64 Fed. Reg. 59,918 (1999) (to be codified at 45 C.F.R Parts 160 through
164) (proposed Nov. 3, 1999), available at <http://aspe.os.dhhs.gov/admnsimp/pvclist.htm>;
see also Robert Pear, Rules on Privacy of Patient Data Stir Hot Debate, N.Y.
Times, Oct. 30, 1999, at A1.
n330. For a cyberian view, see Dyson, supra note 22, at 201.
n331. See Steven A. Bibas, A Contractual Approach to Data Privacy, 17 Harv.
J.L. & Pub. Pol'y 591, 604-05 (1994) (arguing that pricing reflects different
consumer preferences about privacy).
n332. For further discussion of the market model, distinguishing it from
self-regulation, see Peter P. Swire, Markets, Self-Regulation, and Government
Enforcement in the Protection of Personal Information, in National Telecomms.
and Info. Admin., U.S. Dep't of Commerce, Privacy and Self-Regulation in
the Information Age, ch. 1.A (1997), available at (visited Jan, 5, 2000)
n333. See Angela J. Campbell, Self-Regulation and the Media, 51 Fed. Com.
L.J. 711, 758-59 (1999) (concluding that media industry self-regulation has
been effective only when spurred by the threat of government regulation);
William H. Simon, The Kaye Scholer Affair: The Lawyer's Duty of Candor and
the Bar's Temptations of Evasion and Apology, 23 L. & Soc. Inquiry 243,
245 (1998) (arguing that the bar's "self-protective" rather than "self-regulating"
treatment of the Kaye Scholer affair "should be counted as a large mark against
it in the current debate over the appropriate allocation of regulatory responsibilities
between public authorities and professional institutions"). In the data privacy
context, see Deidre K. Mulligan & Janlori Goldman, The Limits and the
Necessity of Self-Regulation: The Case for Both, in NTIA Report, supra note
332, ch. 1.G, available at (visited Jan. 5, 2000) <http://www.ntia.doc.gov/reports/privacy/Selfreg1.htm#1G>.
See also Swire, supra note 332 (concluding that "there are significant reasons
to believe that government regulation will be stricter in enforcing the protection
of personal information than [industry] self-regulation," but noting that
"the difficult question will be to balance these gains in privacy protection
against the likely higher administrative and compliance costs of government
n334. See Swire, supra note 332.
n335. See Kang, supra note 317, at 1253.
n336. See Bob Tedeschi, Targeted Marketing Confronts Privacy Concerns, N.Y.
Times on the Web (May 10, 1999) <http://www.nytimes.com/library/tech/99/05/cyber/commerce/
10commerce.html> (reporting assessment of electronic commerce industry
analyst that "the trend toward capturing and using information is the future
of online commerce").
n337. See Richard S. Murphy, Property Rights in Personal Information: An
Economic Defense of Privacy, 84 Geo. L.J. 2381, 2414 (1996) ("Merchants cannot
tell which consumers value privacy highly without asking all consumers. Raising
the privacy issue may evoke negative reactions in consumers who otherwise
would not have thought about the issue.").
n338. See Kang, supra note 317, at 1253 (noting that cyberspace site operators
"do not generally provide adequate notice about what information will be
collected and how it will be used").
n339. See, e.g., Dyson, supra note 22, at 201.
n340. Third party privacy ratings are already in effect. The New York Times
web site, for example, indicates that its information privacy practices meet
"TRUSTe" standards. TRUSTe is a nonprofit organization founded by the Electronic
Frontier Foundation and the CommerceNet Consortium to help promote consumer
trust and confidence in electronic transactions. See TRUSTe (visited Jan.
7, 2000) <http://www.truste.org>. The Better Business Bureau's online
privacy seal program is BBBOnline. See BBBOnline (visited Jan. 5, 2000) <http://www.bbbonline.org>.
n341. Indeed, trusted third party reliability has already been called into
question. The press has reported that TRUSTe, one of two leading trusted
third parties, failed to withdraw its approval seal from the Microsoft web
site, or even to conduct an investigation of Microsoft's information practices,
despite customer complaints that the Microsoft site was collecting personally
identifiable information against customer wishes. Microsoft is one of TRUSTe's
principal sponsors. See Jeri Clausing, Privacy Watchdog Declines to Pursue
Microsoft, a Backer, N.Y. Times on the Web (Mar. 22, 1999) <http://www.nytimes.com/library/tech/99/03/cyber/articles/23privacy.htm>.
TRUSTe reportedly stated that because it was actually Microsoft software
in the user's computer, not the web site, that collected user data without
the user's agreement, there was no violation of the TRUSTe disclosure guidelines.
See Microsoft Off TRUSTe's Hook, Wired News (Mar. 22, 1999, updated Oct.
4, 1999) <http://www.wired.com/news/print version/chnology/story/18639.html>.
n342. In fact, the lobbying organization representing industry in opposing
government data privacy regulation calls itself the "Online Privacy Alliance."
See Online Privacy Alliance (visited Jan. 7, 2000) <http://www.privacyalliance.com>.
n343. See Dyson, supra note 22, at 201-05. The World Wide Web Consortium
is a nonprofit institution involved in Internet self-governance. See World
Wide Web Consortium (visited Jan. 7, 2000) <http://www.w3.org>.
n344. Of course, a web site operator might not abide by its stated privacy
policy. See infra note 348 and accompanying text.
n345. See Berners-Lee, supra note 106, at 147.
n346. See Schwartz, supra note 147, at 1695 (referring to such user's "Hobson's
choice" between "sacrificing either their privacy or their access to the
n347. One way the state could induce site operators to implement P3P would
be to enact default rules requiring a high standard of fair information practices.
For a well-reasoned argument favoring such default rules, as well as mandatory
rules regarding notice and an individual's right to inspect and correct personal
data, see Schwartz, supra note 147, at 1670-79. See also Kang, supra note
317, at 1270 (advocating default rule that "unless the parties agree otherwise,
personal data collected in the course of executing a cyberspace transaction
can only be used in ways that are functionally necessary to the successful
execution of that transaction"). Such default rules would, in effect, give
users a property right in their personal information, transferable only through
P3P-based transaction. Cf. Kenneth C. Laudon, Extensions to the Theory of
Markets and Privacy: Mechanics of Pricing Information, in U.S. Dep't. of
Commerce, Privacy and Self-Regulation in the Information Age (1997), available
at (visited Jan. 7, 2000) <http://www.ntia.doc.gov/reports/privacy/seflreg1.
htm#1D> (favoring creation of a property right in personal information,
held in the first instance by the individual whom the information is about).
n348. Even if such technology is developed in the future, it might be vulnerable
to web site operators' counter-technology. Avoiding costly technology wars
is arguably one of the reasons for state definition and enforcement of property
rights in such instances.
n349. See Laurence H. Tribe, The Constitution in Cyberspace: Law and Liberty
Beyond the Electronic Frontier (visited Oct. 17, 1999) <http://www.sjgames.com/ss/tribe.html>.
n350. Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 192 (1997).
n351. See Richard B. Kielbowicz, The Press, Post Office, and Flow of News
in the Early Republic, 3 J. Early Republic 255, 257-59, 266, 275 (1983).
n352. Turner Broad., 520 U.S. at 226 (Breyer, J., concurring) (quoting Turner
Broad. Sys., Inc. v. FCC, 512 U.S. 622, 663 (1994)).
n353. The requirement of "just, reasonable, and affordable" rates, traditionally
a requirement of state public utility regulation, was explicitly incorporated
into federal law in the Telecommunications Act of 1996. 47 U.S.C. 254(b)(1)
(Supp. III 1997). For a brief, but helpful discussion of universal service
policy, including recent applications, see Noam, supra note 250, at 958-63.
Universal service is central to the telecommunications policies of other
liberal states as well. See id. at 958.
n354. See 47 U.S.C. 254(h)(1)(A) (Supp. III 1997).
n355. For a brief historical account of U.S. universal service policy, see
Benjamin M. Compaine & Mitchell J. Weinraub, Universal Access to Online
Services: An Examination of the Issue, 21 Telecommunications Pol'y 15, 17-19
n356. See Robert H. Anderson et al., Universal Access to E-mail: Feasibility
and Societal Implications (Rand No. MR-650-MF, 1995), available at <http://www.rand.org/
publications/MR/MR650.pdf> (maintaining that universal access to email
is prerequisite to full participation in democratic society); Campbell, supra
note 250, at 202-03. But see Compaine & Weinraub, supra note 355, at
31-33 (advising caution in extending universal service to online communication).
n357. Internet service providers need neither pay access charges nor contribute
to the universal service fund. See Bickerstaff, supra note 6, at 82-83 (noting
these and other subsidies); Weinberg, supra note 6, at 225-26, 239 (same).
In February 1999, however, the Federal Communications Commission ruled that
dial-up Internet calls are interstate in nature and not local. See Implementation
of the Local Competition Provisions in the Telecommunications Act of 1996,
14 F.C.C.R. 3689 (1999). Although the ruling keeps intact existing reciprocal
compensation agreements between telephone companies and Internet service
providers, it could ultimately result in the imposition of per call fees
on Internet service providers, which would likely be passed on to users.
n358. See 47 U.S.C. 254(h) (Supp. III 1997); see also Noam, supra note 250,
at 960-61; Weinberg, supra note 6.
n359. 47 U.S.C. 254(c)(1) (Supp. III 1997). The FCC has yet to expand universal
service to Internet access for all citizens, but has supported subsidies
for Internet access for schools and libraries. See Federal-State Joint Bd.
on Universal Serv., 12 F.C.C.R. 87, 226 (Nov. 7, 1996).
n360. As Stephen Holmes aptly puts it: "The core norms of equality before
the law and majority rule cannot be put into practice until territorial borders
have been firmly established and the question of who is a member of the community
has been clearly answered." Holmes, supra note 32, at 100; see also Ostrom,
supra note 122, at 91 (concluding that defining resource boundaries and closing
access to outsiders is the first, critical step in organizing for collective
n361. My discussion here draws upon Noam, supra note 250, at 958-59, and
Lemley & McGowan, supra note 114, at 560.
n362. Network benefits may also vary depending on who is being added. "If
I decide that I have no interest in communicating with people in East Harlem,
then I will conclude that I enjoy no network benefits from their addition."
Email from Jonathan Weinberg, Professor of Law, Wayne State University, to
author (July 1, 1999).
n363. Sassen, supra note 201, at 552.
n364. Such cyber-segmentation is already a fact. It has been reported that
86% of Internet delivery capacity in the United States is concentrated in
the 20 largest cities. In urban areas, moreover, high speed Internet service
is largely unavailable to low income neighborhoods. See David Lieberman,
America's Digital Divide: On the Wrong Side of the Wires, USA Today, Oct.
11, 1999, at B1; see also Bickerstaff, supra note 6, at 80 n.474 (citing
studies finding that, even by 2002, only 25% of the total U.S. households
with an Internet connection will use broadband services).
n365. See Cass R. Sunstein, The Partial Constitution 166-67 (1993).
n366. See id.
n367. See Lemley, supra note 19, at 1269-70; Trachtman, supra note 19, at
n368. The terms for ICANN's assumption of Internet domain names administration
are set forth in a Memorandum of Understanding with the Department of Commerce.
See Memorandum of Understanding Between the U.S. Department of Commerce and
Internet Corporation for Assigned Names and Numbers (1998), available at
(visited Jan. 11, 2000) <http://www.ntia.doc.gov/ ntiahome/domainname/icann-memorandum.htm>
[hereinafter DOC-ICANN MOU].
n369. ICANN's authority over domain name holders will derive indirectly from
a chain of top-down contracts. ICANN will enter into contracts with entities
that wish to serve as registries for various top level domain names (such
as .com, .net, .rec, and the like). Those contracts will likely specify the
terms of those entities' contracts with domain name registrars (firms that
offer domain name registration services to users). In turn the registry-registrar
contracts will likely specify key terms of registrar-domain name holder contracts.
ICANN's power over domain name registration (and through it, possibly other
aspects of Internet activity) ultimately derives from its ability to maintain
the obedience of operators of top-level domain name root servers, which sit
on top of a pyramid of servers that record and track Internet domain names.
(A series of servers, with the root servers at the top, enable Internet users
to find and get access to web sites or to send email.) Conceivably root server
operators could defect, and Internet users could then turn to a variety of
root servers to resolve their Internet address search inquiries. But given
network effects, users would ultimately settle on a single set of compatible
root servers, and whichever entity controlled those servers would effectively
assume ICAAN's power over domain name registration. See Jonathan Weinberg,
Internet Governance, in Transnational Cyberspace Law (Makoto Ibusuki ed.,
forthcoming 2000) (in Japanese), English translation available at (visited
Sept. 27, 1999) <http://www.law.wayne.edu/weinberg/governance.PDF>.
n370. David G. Post, Cyberspace's Constitutional Moment, Am. Law., Nov. 1998,
n371. For example, ICANN's Bylaws contain a provision designed to achieve
international representation on the corporation's Board of Directors:
In order to ensure broad international representation on the Board: (1) at
least one citizen of a country located in each of the geographic regions
listed in this Section 6 shall serve as an At Large Director on the Board
(other than the Initial Board) at all times and (2) no more than one-half
(1/2) of the total number of At Large Directors serving at any given time
shall be citizens of countries located in any one Geographic Region.
Bylaws for Internet Corporation for Assigned Names and Numbers, art. V,
6 (as amended and restated on Oct. 29, 1999), available at <http://www.icann.org/general/bylaws.htm>
(visited Jan. 7, 2000) [hereinafter ICANN Bylaws]. The Bylaws also call for
half of the corporation's Board to be selected by various constituencies.
See ICANN Bylaws, supra, art. V, 4. Despite this regional and constituency
representation, ICANN's Bylaws seems to contemplate a Board of disinterested
deliberators, rather than representatives of factions. They require Directors
"to act in what they reasonably believe are the best interests of the Corporation
and not as representatives of the subordinate entity that selected them,
their employers, or any other organizations or constituencies." ICANN Bylaws,
supra, art. V, 8.
For an illuminating public choice account of interest group capture of "private
legislatures," such as the American Law Institute and Uniform State Laws,
see Alan Schwartz & Robert E. Scott, The Political Economy of Private
Legislatures, 142 U. Pa. L. Rev. 595 (1995).
n372. ICANN's bylaws provide that the Corporation's "initial Board shall,
following solicitation of input from the Advisory Committee on Independent
Review and other interested parties and consideration of all such suggestions,
adopt policies and procedures for independent third-party review of Board
actions alleged by an affected party to have violated the Corporation's articles
of incorporation or bylaws." ICANN Bylaws, supra note 371, art. III, 4(b).
n373. ICANN Bylaws, supra note 371, art. IV, 1(c).
n374. See Jeri Clausing, Internet Body Feels Democracy's Tug, N.Y. Times,
Aug. 30, 1999, at C1 (reporting contentious debate regarding ICANN's membership
structure and interest group representation).
n375. See ICANN Bylaws, supra note 371, art. II, 1-6. The At Large Council
is to consist of 18 representatives, 2 each selected by the residents of
each of the 5 specified geographic regions and 8 selected by the members
as a whole. See id. art. II, 7.
n376. See id. at art. V, 4.
n377. ICANN owes its authority to its agreement with the United States government.
See DOC-ICANN MOU, supra note 368. Moreover, agreements among ICANN, the
Department of Commerce, and Network Solutions, Inc. (which acts as the registry
for the .com, .net, and .org top level domain names) provide that the Department
of Commerce may withdraw its recognition of ICANN by terminating its agreement
with ICANN, and that in such event ICANN must assign to the Department any
rights that ICANN has in all existing contracts with registries and registrars.
See ICANN-NSI Registry Agreement P 24 (Nov. 10, 1999), available at (visited
Jan. 11, 2000) <http://www.icann.org/nsi/nsi-registry-agreement-04nov99.htm#16B>;
Amendment 1 to Memorandum of Understanding (MOU) between the Department of
Commerce (DOC) and the Internet Corporation for Assigned Names and Numbers
(ICANN) P 5 (Nov. 10, 1999), available at (visited Jan. 11, 2000) <http://www.icann.org/nsi/amend1-jpamou-04nov99.htm>.
n378. See Coleman, supra note 97, at 266-76 (detailing collection action
obstacles to the emergence and maintenance of a political body to enforce
premarket cooperative agreements on basic market rules and entitlements);
see also Holmes, supra note 32, at 100 ("No nation can become liberal unless
it is already a nation<elip>."); Brilmayer, supra note 64, at 12-16
(arguing that social contract theory necessarily assumes the preexistence
of a territorial sovereign); Posner, supra note 124, at 137-44 (discussing
factors required for group solidarity).
n379. See Coleman, supra note 97, at 275-76 (summarizing obstacles to such
n380. See generally Ostrom, supra note 122 (studying the evolution of nonstate
institutions for the management of common pool resources).
n381. See id. at 184, 188-90 (concluding that these components of social
capital are likely crucial to the emergence and stability of self-governing
n382. Post, supra note 115, at text following note 26.
n383. Similarly, when the Internet was relatively small, the domain name
roof servers were informally administered by a single person, Jon Postel,
who gained the loyalty and respect of the Internet community. See Weinberg,
supra note 369.
n384. See supra note 371 and accompanying text; see also Clausing, supra
note 374, at C1 (reporting concerns that ICANN governing bodies contain inadequate
representation for individuals and public interest groups).
n385. See supra text accompanying notes 114, 175.
n386. See, e.g., Johnson & Post, Law and Borders, supra note 2, at 1378-80.
n387. See generally Johnson & Post, Law and Borders, supra note 2; Post,
supra note 20.
n388. See Johnson & Post, supra note 28, at 70-73.
n389. Germany's Basic Law and criminal code provide German courts broad discretion
to restrict neo-Nazi propaganda. See Eric Stein, History Against Free Speech:
The New German Law Against the "Auschwitz" - and Other - "Lies," 85 Mich.
L. Rev. 277, 286-322 (1986) (providing a translation and analysis of relevant
parts of the German criminal code); David E. Weiss, Striking a Difficult
Balance: Combatting the Threat of Neo-Nazism in Germany While Preserving
Individual Liberties, 27 Vand. J. Transnat'l L. 899, 928 (1994). Germany's
Information and Communication Services Act, enacted in 1997, extends Germany's
long-standing prohibition of neo-Nazi propaganda to Internet speech, providing
that, in certain instances, Internet service providers can be held criminally
liable for the dissemination of neo-Nazi speech on their networks. Informations-und
Kommunikationsdienste-Gesetz, English translation available at Federal Act
Establishing the General Conditions for Information and Communication Services:
Information and Communication Services Act (visited Jan. 7, 2000) <http://www.iid.de/rahmen/iukdge.html>.
The Act is discussed in Kim L. Rappaport, Note, In the Wake of Reno v. ACLU:
The Continued Struggle in Western Constitutional Democracies with Internet
Censorship and Freedom of Speech Online, 13 Am. U. Int'l L. R. 765, 792-95
(1998). Germany is far from alone in its efforts to proscribe neo-Nazi activity.
See Kathleen E. Mahoney, Hate Speech: Affirmation or Contradiction of Freedom
of Expression, 1996 U. Ill. L. Rev. 789, 803 (1996) (noting that Austria,
Belgium, Hungary, Italy, the Netherlands, Romania, Russia, and Switzerland
have enacted laws to restrict hate propaganda).
n390. On a number of occasions, German prosecutors have investigated Internet
service providers because providers' German subscribers could access foreign
neo-Nazi sites on the World Wide Web. See John F. McGuire, Note, When Speech
Is Heard Around the World: Internet Content Regulation in the United States
and Germany, 74 N.Y.U. L. Rev. 750, 770 (1999).
n391. This is merely a hypothetical. I am not aware of any case in which
German authorities have sought to prosecute a foreign web site operator (as
opposed to an Internet service provider) for violation of German law forbidding
neo-Nazi speech, and I do not know whether German law could reasonably be
construed to apply to a foreign web site operator.
n392. See Johnson & Post, Law and Borders, supra note 2, at 1379-80.
n393. For a definition of a state's jurisdiction to prescribe law, see Restatement
(Third) of Foreign Relations Law of the United States 401(a) (1987) [hereinafter
Restatement (Third) of Foreign Relations].
n394. See id. 401(b) (defining jurisdiction to adjudicate).
n395. See Goldsmith, supra note 19, at 1240-44. Under international law,
Germany has a right to prohibit the Texans' speech if the Texans can be said
to have communicated their speech within German territory or, possibly, even
if the Texans' speech is deemed to occur entirely in Texas but nevertheless
has substantial effect within Germany. See 1 Sir Robert Jennings & Sir
Arthur Watts, Oppenheim's International Law 460, 472-76 (9th ed. 1992) (stating
that customary international law allows a state to assert jurisdiction over
offenses having their culmination in the state even if not begun there and,
more controversially, over conduct taking place abroad that has substantial
effects within the state); see also Restatement (Third) of Foreign Relations,
supra note 393, 402(1)(c) (concluding that unless "unreasonable," a state
has jurisdiction to prescribe law with respect to "conduct outside its territory
that has or is intended to have substantial effect within its territory").
Under international law, Germany's right to subject the Texans to the jurisdiction
of its courts is essentially coterminous with its right to prescribe law.
See Ian Brownlie, Principles of Public International Law 313 (5th ed. 1998)
(footnote omitted) (concluding that there is "no essential distinction between
the legal bases for and limits upon" legislative and personal jurisdiction).
n396. Johnson & Post, Law and Borders, supra note 2, at 1370; see also
Post, supra note 20, at 542 ("However difficult it may be to argue that individuals
or groups have consented to the application of a territorial state's exercise
of power over them, it is far more difficult to make that argument in the
context of the exercise of state power against those who have no part in
constituting the state's authority.").
n397. Equating liberalism with the Internet slogan, "information wants to
be free," cyberians might assert that any state-imposed constraint on speech,
including the German prohibition of neo-Nazi expression, necessarily contravenes
liberal principles. See John Perry Barlow, The Framework for Economy of Ideas:
Rethinking Patents and Copyrights in the Digital Age, Wired, Mar. 1994, at
83, 89 (crediting "information wants to be free" slogan to Stewart Brand);
Barlow, supra note 1 (declaring that in cyberspace "all the sentiments and
expressions of humanity, from the debasing to the angelic, are parts of a
seamless whole, the global conversation of bits"). While such an insistence
on the primacy of free speech may be a tenable position, it does not comport
with international understandings of liberal rights, at least as codified
in human rights treaties. For example, the International Covenant on Civil
and Political Rights, to which 144 countries are party, provides that "any
advocacy of national, racial or religious hatred that constitutes incitement
to discrimination, hostility or violence shall be prohibited by law." International
Covenant on Civil and Political Rights, Dec. 19, 1966, 6 I.L.M. 368. For
information regarding countries' signing, ratification, and accession to
the treaty, see United Nations Treaty Collection, International Covenant
on Civil and Political Rights (visited Jan. 4, 2000) <http://www.un.org/Depts/Treaty/final/ts2/newfiles/part
boo/iv boo/iv 4.html>.
n398. See Johnson & Post, Law and Borders, supra note 2, at 1370, 1375-76.
n399. See Friedrich K<um u>bler, How Much Freedom for Racist Speech?:
Transnational Aspects of a Conflict of Human Rights, 27 Hofstra L. Rev. 335,
336-37 (1998); Stein, supra note 389, at 278-79.
n400. See Goldsmith, supra note 19, at 1240-42 (arguing that asserting prescriptive
jurisdiction over cyberspace activity falls well within accepted principles
of international law).
n401. A hypothetical consent argument might support Germany's extraterritorial
legislative authority argument as well. Customary international law generally
permits a nation to extend its law to extraterritorial activity with substantial
domestic effects. See Goldsmith, supra note 19, at 1208. The United States,
acting through its various government officials, follows customary international
law regarding a nation's extraterritorial legislative (or "prescriptive")
authority. See Restatement (Third) of Foreign Relations, supra note 393,
402(1)(c). Accordingly, one could plausibly argue that the Texas neo-Nazis
have indirectly, through their elected representatives (as well as nonelected
officials appointed by those representatives), "consented" to Germany's legislative
n402. See Johnson & Post, Law and Borders, supra note 2, at 1370. The
accepted understanding of transient jurisdiction comports with that of John
Locke, who posited that by walking upon a country's highways a person tacitly
accepts an obligation to obey that country's government. See John Locke,
The Second Treatise of Government, 119-21. Like others, Johnson and Post
question the legitimacy of basing consent on mere physical presence, emphasizing
that such consent has "a strong fictional element." Johnson & Post, Law
and Borders, supra note 2, at 1398; see also Brilmayer, supra note 64, at
5 ("State reliance on consent inferred from someone merely remaining in the
state is particularly unrealistic. An individual's unwillingness to incur
the extraordinary costs of leaving his or her birthplace should not be treated
as a consensual undertaking to obey state authority.").
n403. Johnson & Post, Law and Borders, supra note 2, at 1370.
n404. Id. at 1371.
n405. See id. at 1375.
n406. See Goldsmith, supra note 19, at 1243-44; see also Jane C. Ginsburg,
Copyright Without Borders? Choice of Forum and Choice of Law for Copyright
Infringement in Cyberspace, 15 Cardozo Arts & Ent. L.J. 153, 160 (1997)
(discussing reasonable foreseeability in context of claims for copyright
n407. Goldsmith, supra note 19, at 1244.
n408. See id. at 1226-30, 1244.
n409. See W. John MacMullen, Anonymity, Privacy, and Security, in Internet
Issues and Applications, 1997-1998, at 67, 75-79 (Bert J. Dempsey & Paul
Jones eds., 1998) (describing remailing technology).
n410. See Goldsmith, supra note 19, at 1226-30, 1244.
n411. See id. at 1219-21.
n412. For a cogent argument that extraterritorial jurisdiction as applied
to cyberspace activity comports, at least in principle, with international
law and practice, see id. at 1239-44.
n413. Johnson & Post, Law and Borders, supra note 2, at 1398-99.
n414. Id. at 1398 (quoting Michael J. Sandel, America's Search for a New
Public Philosophy, Atlantic Monthly, Mar. 1996, at 57, 73-74); cf. Davidson
& Rees-Mogg, supra note 15, at 117, 178-207, 301-03 (characterizing the
coming "Information Age" as that of the "sovereign individual" and an age
in which the nation-state will be reduced to its true role of "predatory
institution," selling territorial protection services, with cyberspace occupying
the realm of productive human endeavor).
n415. See, e.g., Brillmayer, supra note 64, at 57; Louis Henkin, That "S"
Word: Sovereignty, and Globalization, and Human Rights, Et Cetera, 68 Fordham
L. Rev. 1, 7 (1999); Michael Reisman, Designing and Managing the Future of
the State, 8 Eur. J. Int'l L. 409, 416 (1997); see also David Held, Democracy
and the Global Order 233-37 (1995) (viewing the nation-state as one among
many overlapping centers for collective self-rule within an overarching framework
of global democratic law); John Rawls, The Law of Peoples, in On Human Rights:
The Oxford Amnesty Lectures 1993, 41 (Stephen Shute & Susan Hurley eds.,
1993) (contending that persons in the original position would choose to live
in a world comprising territorial nation-states that respect basic human
n416. Curtis E.A. Karnow, Future Codes: Essays in Advanced Computer Technology
and the Law 35 (1997). Karnow's book is critically reviewed in Christopher
M. Kelly, The Cyberspace Separatism Fallacy, 34 Tex. Int'l L.J. 413 (1999).
n417. Held, supra note 415, at 230 (referring to the naivety of notions of
global culture and world government).
n418. See Reisman, supra note 415, at 416; see also Holmes, supra note 32,
at 39, 100-01 (contending that liberalism has always presupposed and depended
upon a strong territorially-bound state to enforce individual rights and
guarantee individual security); Lessig, supra note 12, at 3-4 (noting that,
as has been acutely apparent in post-Communist Central and Eastern Europe,
the absence of a strong state that both enforces and abides by the rule of
law spawns hooliganism and civil strife, not libertarian utopia).
n419. See Steven R. Ratner & Anne-Marie Slaughter, Appraising the Methods
of International Law: A Prospectus for Readers, 93 Am. J. Int'l L. 291, 297-98
(1999) (noting trend toward recognizing and invoking universal jurisdiction
for national courts to prosecute human rights violations).
n420. Brian Barry, Statism and Nationalism: A Cosmopolitan Critique, in Global
Justice 12, 53-60 (Ian Shapiro & Lea Brilmayer eds., 1999).
n421. See id. at 54 (discussing J<um u>rgen Habermas' proposed "patriotism
of the Constitution," a "patriotism [for Germans] based on loyalty to the
universalistic political principles of liberty and democracy embodied in
the constitution of the Federal Republic of Germany").
n422. See, e.g., Johnson & Post, supra note 28, at 70-73.
n423. See id. at 72-73.
n424. For example, prior to the creation of ICANN, the World Intellectual
Property Organization (WIPO), a special agency of the United Nations, had
sought to take a portion of Internet domain name administration under its
wing. See Joseph P. Liu, Legitimacy and Authority in Internet Coordination:
A Domain Name Case Study, 74 Ind. L.J. 587, 601 (1999) (describing International
Ad Hoc Committee formed by the WIPO and other organizations in 1996 to propose
solutions to conflicts between trademarks and Internet domain names). The
WIPO is still involved in making recommendations to ICANN regarding how to
handle trademark-domain-name conflicts. See World Intellectual Property Organization,
Final Report of the WIPO Internet Domain Name Process (Apr. 30, 1999), available
at (visited Jan. 7, 2000) <http://ecommerce.wipoint/domains/process/eng/final
n425. See, e.g., A. Michael Froomkin, Of Governments and Governance, 14 Berkeley
Tech. L.J. 617, 625-29 (discussing democratic deficit in treaty making and
decision making of the World Intellectual Property Organization); Peter L.
Lindseth, Democratic Legitimacy and the Administrative Character of Supranationalism:
The Example of the European Community, 99 Colum. L. Rev. 628, 633-42 (1999)
(discussing the democratic deficit in European Community administrative institutions).
n426. Anne-Marie Slaughter, The Real New World Order, 76 Foreign Aff. 183
(1997); see also Harold Hongju Koh, How Is International Human Rights Law
Enforced?, 74 Ind. L.J. 1397 (1999) (emphasizing the centrality of nation-state
internationalization of international human rights norms and domestic judicial
enforcement of those norms to international human rights regime).
n427. See Henry H. Perritt, Jr., Cyberspace and State Sovereignty, 3 J. Int'l
Leg. Stud. 155, 181-97 (1997) (discussing the Internet's potential role in
the development of international and transgovernmental institutions, lending
force to democratization and the rule of law).
n428. See Patricia Isela Hansen, Transparency, Standards of Review, and the
Use of Trade Measures to Protect the Global Environment, 39 Va. J. Int'l
L. 1017, 1058-66 (1999) (favoring an approach to World Trade Organization
dispute resolution that would encourage transparency in national regulatory
procedures affecting international trade); Laurence R. Helfer & Anne-Marie
Slaughter, Toward a Theory of Effective Supranational Adjudication, 107 Yale
L.J. 273, 293-97, 337-85 (1997) (discussing European Court of Human Rights
and United Nations Human Rights Committee).