Seltzer provided extensive, if respectful, criticism. And my assistants, Lee Hopkins and Catherine Cho, were crucial in keeping this army in line (and at bay).
Three students in particular have influenced my argument, though none are fairly called “students.” Harold Reeves takes the lead in Chapter 10. Tim Wu forced me to rethink much of Part I. And Andrew Shapiro showed me the hopefulness in a future that I have described in very dark terms.
I am especially indebted to Catherine Marguerite Manley, whose extraordinary talent, both as a writer and a researcher, made it possible to finish this work long before it otherwise could have been finished. Thanks also to Tawen Chang and James Stahir for their careful review of the notes and work to keep them honest.
This is a not a field where one learns by living in libraries. I have learned everything I know from the conversations I have had, or watched, with an extraordinary community of academics and activists, who have been struggling over the last five years both to understand what cyberspace is and to make it better. This community includes the scholars and writers I discuss in the text, especially the lawyers Yochai Benkler, James Boyle, Mark Lemley, David Post, and Pam Samuelson. I’ve also benefited greatly from conversations with nonlawyers, especially Hal Abelson, John Perry Barlow, Todd Lapin, Joseph Reagle, Paul Resnick, and Danny Weitzner. But perhaps more importantly, I’ve benefited from discussions with the activists, in particular the Center for Democracy and Technology, the Electronic Frontier Foundation, and the American Civil Liberties Union. They have made the issues real, and they have done much to defend at least some of the values that I think important.
This book would not have been written, however, but for a story by Julian Dibbell, a conference organized by Henry J. Perritt, and many arguments with David Johnson. I am grateful to all three for what they have taught.
I began this project as a fellow at Harvard’s Program on Ethics and the Professions. I am grateful to Dennis Thompson for his skeptical encouragement that year. The Berkman Center for Internet and Society at Harvard Law School has made much of my research possible. I am grateful in particular to Lillian and Myles Berkman for that support, and especially to the center’s co-director and my sometime coteacher, Jonathan Zittrain, for his support and, more important, friendship. I’ve dedicated this book to the other co-director of the Berkman Center, Charlie Nesson, who has given me the space and support to do this work and a certain inspiration to push it differently.
But more significant than any of that support has been the patience, and love, of the person to whom I’ve dedicated my life, Bettina Neuefeind. Her love will seem crazy, and wonderful, for much more than a year.
Chapter 1. Code Is Law
Almost two decades ago, in the spring of 1989, communism in Europe died — collapsed, like a tent, its main post removed. The end was not brought by war or revolution. The end was exhaustion. A new political regime was born in its place across Central and Eastern Europe, the beginnings of a new political society.
For constitutionalists (like me), this was a heady time. I had graduated from law school in 1989, and in 1991 I began teaching at the University of Chicago. At that time, Chicago had a center devoted to the study of the emerging democracies in Central and Eastern Europe. I was a part of that center. Over the next five years I spent more hours on airplanes, and more mornings drinking bad coffee, than I care to remember.
Eastern and Central Europe were filled with Americans telling former Communists how they should govern. The advice was endless. And silly. Some of these visitors literally sold translated constitutions to the emerging constitutional republics; the rest had innumerable half-baked ideas about how the new nations should be governed. These Americans came from a nation where constitutionalism seemed to work, yet they had no clue why.
The Center’s mission, however, was not to advise. We knew too little to guide. Our aim was to watch and gather data about the transitions and how they progressed. We wanted to understand the change, not direct it.
What we saw was striking, if understandable. Those first moments after communism’s collapse were filled with antigovernmental passion — a surge of anger directed against the state and against state regulation. Leave us alone, the people seemed to say. Let the market and nongovernmental organizations — a new society — take government’s place. After generations of communism, this reaction was completely understandable. Government was the oppressor. What compromise could there be with the instrument of your repression?
A certain kind of libertarianism seemed to many to support much in this reaction. If the market were to reign, and the government were kept out of the way, freedom and prosperity would inevitably grow. Things would take care of themselves. There was no need, and could be no place, for extensive regulation by the state.
But things didn’t take care of themselves. Markets didn’t flourish. Governments were crippled, and crippled governments are no elixir of freedom. Power didn’t disappear — it shifted from the state to mafiosi, themselves often created by the state. The need for traditional state functions — police, courts, schools, health care — didn’t go away, and private interests didn’t emerge to fill that need. Instead, the needs were simply unmet. Security evaporated. A modern if plodding anarchy replaced the bland communism of the previous three generations: neon lights flashed advertisements for Nike; pensioners were swindled out of their life savings by fraudulent stock deals; bankers were murdered in broad daylight on Moscow streets. One system of control had been replaced by another. Neither was what Western libertarians would call “freedom.”
About a decade ago, in the mid-1990s, just about the time when this post-communist euphoria was beginning to wane, there emerged in the West another “new society”, to many just as exciting as the new societies promised in post-communist Europe. This was the Internet, or as I’ll define a bit later, “cyberspace.” First in universities and centers of research, and then throughout society in general, cyberspace became a new target for libertarian utopianism. Here freedom from the state would reign. If not in Moscow or Tblisi, then in cyberspace would we find the ideal libertarian society.
The catalyst for this change was likewise unplanned. Born in a research project in the Defense Department[1], cyberspace too arose from the unplanned displacement of a certain architecture of control. The tolled, single-purpose network of telephones was displaced by the untolled and multipurpose network of packet-switched data. And thus the old one-to-many architectures of publishing (television, radio, newspapers, books) were complemented by a world in which anyone could become a publisher. People could communicate and associate in ways that they had never done before. The space seemed to promise a kind of society that real space would never allow — freedom without anarchy, control without government, consensus without power. In the words of a manifesto that defined this ideal: “We reject: kings, presidents and voting. We believe in: rough consensus and running code.[2]”
As in post-Communist Europe, these first thoughts about freedom in cyberspace tied freedom to the disappearance of the state. As John Parry Barlow, former lyricist for the Grateful Dead and co-founder of the Electronic Frontier Foundation, declared in his “Declaration of Independence for Cyberspace”,
