You are terrified of your own children, since they are natives in a world where you will always be immigrants. Because you fear them, you entrust your bureaucracies with the parental responsibilities you are too cowardly to confront yourselves. In our world, all the sentiments and expressions of humanity, from the debasing to the angelic, are parts of a seamless whole, the global conversation of bits. We cannot separate the air that chokes from the air upon which wings beat.
In China, Germany, France, Russia, Singapore, Italy and the United States, you are trying to ward off the virus of liberty by erecting guard posts at the frontiers of Cyberspace. These may keep out the contagion for a small time, but they will not work in a world that will soon be blanketed in bit-bearing media.
Your increasingly obsolete information industries would perpetuate themselves by proposing laws, in America and elsewhere, that claim to own speech itself throughout the world. These laws would declare ideas to be another industrial product, no more noble than pig iron. In our world, whatever the human mind may create can be reproduced and distributed infinitely at no cost. The global conveyance of thought no longer requires your factories to accomplish.
These increasingly hostile and colonial measures place us in the same position as those previous lovers of freedom and self-determination who had to reject the authorities of distant, uninformed powers. We must declare our virtual selves immune to your sovereignty, even as we continue to consent to your rule over our bodies. We will spread ourselves across the Planet so that no one can arrest our thoughts.
We will create a civilization of the Mind in Cyberspace. May it be more humane and fair than the world your governments have made before.[22]
Perhaps no single document better reflects an ideal that was dominant on the network a decade ago. Whatever rule governed “our bodies”, no government could govern the “virtual selves” that would live in this space. Barlow declared these “virtual selves” “immune” from real space sovereigns. Real-space sovereigns would be lost if they tried to exercise control here.
Though Barlow issued his declaration at a meeting of world leaders at Davos, apparently world governments didn’t hear what he said. That very day, the President signed the Communications Decency Act of 1996.[23] And though the Supreme Court would eventually strike down this law, the Supreme Court was certainly not signaling the end of any regulation of “virtual selves.” A string of legislation from the United States Congress coincided with a string of regulation from around the world. And that trend has only increased. As one study measured it, the growth of legislative efforts to regulate the Net was slow at first, but has taken off dramatically.[24] These regulations were at first directed to “harnessing technology to serve what were perceived to be governmental goals unrelated to the net ”; then second, “aimed directly at fostering the advancement of Net infrastructure”; and third, “directly concerned control over information.[25]”
The reasons Barlow’s ideals were not going to be realized might be obvious in retrospect, but they weren’t well recognized at the time. Laws are enacted as a result of political action; likewise they can be stopped only by political action. Ideas, or beautiful rhetoric, aren’t political action. When Congress confronts impassioned parents demanding it does something to protect their kids on the Net; or when it faces world-famous musicians angry about copyright infringement on the Net; or when it faces serious-seeming government officials talking about the dangers of crime on the Net, the rhetoric of even a Grateful Dead lyricist won’t cut it. On Barlow’s side, there had to be political action. But political action is just what the Net wasn’t ready for.
The One Law Rule
The opposite result of no law is a world where there is but one law. It is the world where one government (or conceivably, all governments working together, but that idea is too ridiculous to even contemplate so I won’t discuss it here) dominates the world by enforcing its law everywhere.
As Michael Geist convincingly argues, that’s indeed what is happening now. “Governments”, Geist writes, are “unwilling to concede that national laws are limited to national borders, and are increasingly turning to explicitly extra-territorial legislation.”[26]
Here again (unfortunately), the United States is a leader. The United States has a view of proper network behavior. It has asserted the right to enforce that view extraterritorially, and it enforces its rule against citizens from around the world whether or not the U.S. rule conflicts with a local rule. The FTC, for example, is “vested with responsibility for enforcing the Child Online Privacy Protection Act”, Geist writes, and “its rule-making guidance leaves no doubt that such sites are expected to comply with the statute in their privacy practices toward children.”[27] So too does the Department of Justice maintain that the DMCA applies extraterritorially, because it refers to “imports” of technologies.[28] And the USA Patriot Act includes provisions that “are expressly extra- territorial” — including, for example, an expansion of the list of “protected computers” to include “a computer located outside the United States that is used in a manner that affects interstate or foreign commerce or communication of the United States.”[29]
Of course, Geist’s claim is not that the United States has tamed the Internet. No one would assert that the United States has stopped crime on the network, or even behavior inconsistent with U.S. law. But the attitude and theory that animates U.S. prosecution has no conceptual limit. On the theory the United States advances, there is no behavior anywhere that at least in principle the United States can’t reach. (Though there are many who believe international law restricts the United States more than it acknowledges.)[30]
It may be that this dominance by the United States will continue for ever. But I doubt it. There is a growing desire among many governments around the world to check the power of the United States. In 2005, some of these government tried to wrest control of ICANN (Internet Corporation for Assigned Names and Numbers ) from U.S. influence. This resistance, as well as a healthy dose of sovereign self-respect, will increasingly push for a regime that better balances the interests of the whole world.
The Many Laws Rule (and the technology to make it possible)
So what would a more balanced regime look like?
Return to the conflict that began this chapter. On the one hand, France doesn’t want its citizens buying Nazi paraphernalia, the United States doesn’t want its citizens watching “free” TV. On the other hand, France doesn’t have anything against “free” TV, and the United States doesn’t have the constitutional power to block its citizens from buying Nazi paraphernalia. It’s some way to give France what it wants (and doesn’t want), and to give the U.S. what it wants (and can’t want)?
