federal case.
Nevertheless, it will take a revolution in American constitutional law for the Court, self-consciously at least, to move beyond the limits of state action. Scholars have sketched how it could without radically remaking American law, but others have argued it could not without radically remaking the American Constitution.[22]
But my reason for ignoring the state action doctrine is not so much to radically remake law as it is to give us a clearer sense of how we should make the law in this new space in the first place. As Paul Berman puts it, the reason to ignore the state action doctrine for now is that:
. . . however such questions get resolved, at least we will have been forced to grapple with the substantive constitutional question and to articulate the competing values at stake. The state action doctrine, in contrast, takes such debates off the table altogether by asserting that the activity at issue is private and therefore not a fit subject for the constitutional discourse. If one believes that such discourse, in and of itself, has cultural value, then application of the state action doctrine comes with a significant cost.[23]
Again, it remains likely that we will continue to suffer this cost.
It is in these two ways then that courts are stuck. They cannot be as creative, and the scope of their constitutional review has been narrowed (artificially, I believe) to exclude the most important aspect of cyberspace’s law — code. If there are decisions about where we should go, and choices about the values this space will include, then these are choices we can’t expect our courts to make.
Problems with Legislators
At a conference in former Soviet Georgia, sponsored by some Western agency of democracy, an Irish lawyer was trying to explain to the Georgians what was so great about a system of “judicial review” (the system by which courts can strike down the acts of a parliament). “Judicial review”, he enthused, “is wonderful. Whenever the court strikes down an act of parliament, the people naturally align themselves with the court, against the parliament. The parliament, people believe, is just political; the supreme court, they think, is principled. ” A Georgian friend, puppy-democrat that he was, asked, “So why is it that in a democracy the people are loyal to a nondemocratic institution and repulsed by the democratic institution in the system? ” “You just don’t understand democracy”, said the lawyer.
When we think about the question of governing cyberspace — when we think about the questions of choice I’ve sketched, especially those raised in Part III — we are likely to get a sinking feeling. It seems impossibly difficult, this idea of governing cyberspace. Who is cyberspace? Where would it vote? The very idea seems abhorrent to cyberspace itself.
But the problem here is not with governance in cyberspace. Our problem is with governance itself. There is no special set of dilemmas that cyberspace will present; there are only the familiar dilemmas of modern governance, but in a new place. Some things are different; the target of governance is different; the scope of international concerns is different. But the difficulty with governance will not come from this different target; the difficulty comes from our problem with governance.
Throughout this book, I’ve worked to identify the choices that cyberspace will present. I’ve argued that its very architecture is up for grabs and that, depending on who grabs it, there are several different ways it could turn out. Clearly some of these choices are collective — about how we collectively will live in this space. One would have thought that collective choices were problems of governance, but very few of us would want government to make these choices. Government seems the solution to no problem we have, and we should understand why this is. We should understand the Irish lawyer in all of us.
Our skepticism is not a point about principle. Most of us are not libertarians. We may be antigovernment, but for the most part we believe that there are collective values that ought to regulate private action. ( “Collective” just in the sense that all individuals acting alone will produce less of that value than if that individual action could be coordinated.) We are also committed to the idea that collective values should regulate the emerging technical world. Our problem is that we do not know how it should be regulated, or by whom. And we fear that the values that will be embraced are not the correct ones.
Like the Irish lawyer, we are weary of governments. We are profoundly skeptical about the product of democratic politics. We believe, rightly or not, that these processes have been captured by special interests more concerned with individual than collective values. Although we believe that there is a role for collective judgments, we are repulsed by the idea of placing the design of something as important as the Internet into the hands of governments.
The examples here are many, and the pattern is arresting. The single unifying message in the government’s own description of its role in cyberspace is that it should simply get out of the way. In the area of Internet commerce, the government says, commerce should take care of itself. ( Of course, at the same time, the government is passing all sorts of laws to increase the protections for intellectual property.) The government is also seemingly enthusiastic about regulating “indecent” content regardless of the thriving commerce in it.
A perfect example of this point is the government’s hand-off of control of the management of the domain name system. For some time the government had been thinking about how best to continue the governance or control of the domain name system.[24] It had originally farmed the work out under National Science Foundation contracts, first to a California nonprofit organized by the late Jon Postel, and then to a private for-profit corporation, Network Solutions.
The contracts were due to lapse in 1998, however, and for a year the government thought in earnest about what it should do. In June 1998 it released a White Paper calling for the establishment of a nonprofit corporation devoted to the collective interest of the Internet as a whole and charged with deciding the policy questions relating to governing the domain name system. Policy-making power was to be taken away from government and placed with an organization outside its control. In 1998, that policy was effected through the creation of the Internet Corporation for Assigned Names and Numbers (ICANN), which, according to its webpage, is
dedicated to preserving the operational stability of the Internet; to promoting competition; to achieving broad representation of global Internet communities; and to developing policy appropriate to its mission through bottom-up, consensus-based processes. ICANN, a public benefit, non-profit entity, is the international organization responsible for the management and oversight of the coordination of the Internet’s domain name system and its unique identifiers.[25]
