the market — so that we relate to spaces in cyberspace the way we relate to toothpaste in real space — there are strong reasons not to. As life moves online, and more and more citizens from states X, Y, and Z come to interact in cyberspaces A, B, and C, these cyberspaces may well need to develop the kind of responsibility and attention that develops (ideally) within a democracy. Or, put differently, if cyberspace wants to be considered its own legitimate sovereign, and thus deserving of some measure of independence and respect, it must become more clearly a citizen-sovereignty.
This same dynamic happens in real space. There are many institutions that are not “sovereign” in the sense that they control how people live, but are “sovereign” in the sense that within the institution, they control how people behave. Universities, social clubs, churches, and corporations are the obvious examples of institutions that gain a kind of autonomy from ordinary government. This autonomy can be thick or thin. And my suggestion is that it gets thicker the more the institution reflects values of citizen-sovereignty.
This kind of sovereignty is expressed in the law through doctrines of immunity. A corporation has certain immunities, but that depends upon it fitting a particular corporate form. Churches have a certain immunity, but it is increasingly challenged as its governance becomes more alien.
Communities in cyberspace will earn a similar immunity more quickly if they reflect citizen-sovereign values rather than merchant-sovereign values. The more responsible the communities become, the more likely real-space governments will defer to their norms through doctrines like immunity.
This maturation — if it is that — is obviously a long way down the road. It depends upon an increasing self-recognition by members of these cyberspace communities that they are, in a sense, separate, or complementary communities. It depends upon an increasing recognition among noncommunity members that there’s something distinctive about these communities. Some are optimistic that this will happen. As Dan Hunter and Greg Lastowka write:
Courts will need to recognize that virtual worlds are jurisdictions separate from our own, with their own distinctive community norms, laws, and rights. While cyborg inhabitants will demand that these rights be recognized by real-world courts and virtual-world wizards, they will need to arrive at these rights themselves within the context of the virtual worlds.[15]
We’ve seen something similar to this progression in our own history. There was a time when the United States was really “these united States”, a time when the dominant political reality was local and there were real differences of culture and values between New York and Virginia. Despite these differences, in 1789 these states united to establish a relatively thin national government. This government was to be minimal and limited; it had a number of narrow, strictly articulated purposes, beyond which it was not to go.
These limits made sense in the limited community that the United States was. At the time there was very little that the states shared as a nation. They shared a history of defeating the strongest army in the world and a purpose of growing across an almost endless continent[16], but they did not share a social or political life. Life was local, exchange was relatively rare, and in such a world limited national government made sense.
Nevertheless, there were national questions to be articulated and resolved. Slavery, for example, was a mark on our country as a whole, even though the practice was limited to a few states. There had been arguments at the founding about whether slavery should be left to local regulation. But the Constitution was founded on a compromise about that question. Congress was not permitted to address the question of the “importation” of slaves until 1808.[17] After that, it could, and people, increasingly, said that it should. Slavery continued, however, to be a stain on the moral standing of our nation. Congress could eliminate it in the territories at least, and some argued that it should do so in the southern states as well.
Opponents to this call for Congress to cleanse our nation of slavery were of two sorts. One type supported the institution of slavery and believed it was central to southern life. They are not my focus here. My focus is a second type — those who, with perfect integrity and candor, argued that slavery was a local issue, not a national issue; that the framers had understood it not to be a national issue; and that the national government should let it alone.
However true that claim might have been in 1791 or 1828, it became less plausible over time. As the nation became socially and economically more integrated, the plausibility of saying “I am a Virginian first” declined, and the significance of being a citizen of the nation as a whole increased.[18]
This change came about not through some political decision but as a result of a changing economic and social reality. Our sense of being members of a national community increased until, at a certain stage, it became impossible to deny our national citizenship. A war produced that recognition. The Fourteenth Amendment wrote it into the Constitution; economic and social intercourse made it completely real. And as this change took hold, the claim that issues like slavery were local became absurd.
The very same process is happening to us now, internationally, and cyberspace is making an important contribution. It has been slowly gaining momentum, of course, since the end of World War II, but the Internet has wildly accelerated the pace. Ordinary citizens are connected internationally and can make international transactions as never before. The presence of a community that is beyond any individual state is increasingly undeniable.
As this international community develops in cyberspace, its citizens will find it increasingly difficult to stand neutral in this international space. Just as a principled sort of citizen in 1791 might have said that slavery in Virginia was irrelevant to a citizen in Maine, so in 1991 the control of speech in Singapore may have been irrelevant to a citizen of the United States. But just as the claim about slavery’s local relevance became implausible in the course of the nineteenth century, the claim about speech on the Net will become equally implausible in the 21 st century. Cyberspace is an international community; there are constitutional questions for it to answer; and we cannot simply stand back from this international space and say that these questions are local issues.
At least, we could not say that once we effectively invaded this international space with the Internet of 1995. We put into the world an architecture that facilitated extraordinarily free speech and extraordinary privacy; that enabled secure communications through a protocol that permitted encryption; and that encouraged free communications through a protocol that resisted censorship. That was the speech architecture that the Net gave the world — that we gave the world.
Now we are changing that architecture. We are enabling commerce in a way we did not before; we are contemplating the regulation of encryption; we are facilitating identity and content control. We are remaking the values of the Net, and the question is: Can we commit ourselves to neutrality in this reconstruction of the architecture of the Net?
I don’t think that we can. Or should. Or will. We can no more stand neutral on the question of whether the Net should enable centralized control of speech than Americans could stand neutral on the question of slavery in 1861. We should understand that we are part of a worldwide political battle; that we have views about what rights should be guaranteed to all humans, regardless of their nationality; and that we should be ready to press these
