What So Different About Cyberspace?
It seems as though the initial round
of discussion between Larry and myself has produced a "two cultures" problem,
which it is worth setting out briefly here. Over the past several years I have
had extensive contact with the Internet, not only as an academic but also as a
lawyer. But it is not because of any affection for, or preoccupation with its
technical architecture, or with its internal folkways. Rather, I have come to
it by indirection. If you have an expertise in privacy and defamation, then
someone will ask you to testify on the question of whether one should allow
strong encryption by private parties on the Net, or whether the publication
online of confidential information obtained by fraud or trickery is protected
under the First Amendment. For someone who sees the Internet as the latest
advance in technology, which is not all that different from the radio, the cell
phone, or the fax machine, there is a strong tendency to see issues on the
Internet as though they were outgrowths of familiar problems
elsewhere.
I thought (and still think) that one of the great strengths of Larry's book
is the way in which he integrates nice examples from physical space with those
from cyberspace. Thus he is right on to say that there are two ways in which to
reduce the theft of car radios (Page 90), one of them is to increase the
punishment for theft, and the other is to render them useless once they are
taken out of the car by someone who does not know the code (old-fashioned
sense) for their release. Here I might add that the second remedy is, in
conventional terms, a better one that the first. The higher penalties will have
multiple effects: One is to reduce the number of thefts, but another is to
encourage more violent action by the thieves that remain when faced with the
risk of capture. The marginal cost of killing an innocent party would be quite
low if the sanction for stealing radios were life imprisonment for first-time
offenders. But the puzzles of marginal deterrence are not invoked if the radios
are disabled when removed, and so architecture, or technology, works nicely in
real space, and it should work well in cyberspace to avoid similar
problems.
So far so good. No one could doubt that architecture matters in cyberspace.
The ability to limit the number of times that someone can resort to a computer
program, for example, means that technology allows for a form of price
discrimination that eliminates some of the unwelcome cross-subsidies associated
with the sale of certain programs, just as an accurate billing system means
that pricing for phones is not subject to flat fees only. Here again, the point
is useful to make but does not get us to the question of the proper approach
for understanding the distinctive use and regulation of cyberspace.
So we come to the third point: Larry mentions that the original architecture
of cyberspace was given to us by researchers and hackers. And so it was. The
usual ethic among both groups is for the public dissemination of information.
With researchers, the community I know best, the free interchange of ideas of
critical for the advancement of knowledge. There are no secrets in this world.
But many of the best researchers also have jobs that require them to work for
industry, where the protection of innovation via trade secrets and patents is
the norm, and for equally good reason: Business cannot turn a profit if all its
improvements are instantly appropriable by others.
Now, it happens that the best minds are frequently used for both research
and commerce, and we have to develop protocols, and we do develop protocols,
that deal with the potential conflict of interest as they move from one regime
to another. And in ordinary space we have both public and private property,
with the same individuals participating in both regimes.
In ordinary affairs, I do not think that the rise of commerce results in the
loss of liberty. As a member of the university community, I have worked over
the years in setting out the guidelines to deal with conflicts-of-interest
regulations that allow most people to participate in both. I see no reason why
that cannot happen in cyberspace as well. Those people who wish to set up
commercial portals through which others must come do not violate the liberty of
those who choose not to enter. The different values are certainly there, but
the Net is a richer and not a poorer place by virtue of the fact that some
folks can live in gated communities while others can run free over a commons on
some other part of the Net. There is no more loss of freedom here in any
intelligible sense that there is a loss of freedom when my neighbor erects a
new house to which he invites only his friends. Of course, the values in
commerce are different from those in the code (i.e., practices) of the
Internet. But these new arrivals will not, as Larry suggests, "flip" the
character of the Net. The original enclaves can hold firm as new people open up
new territory. The Net is not some single homogenous object that admits to only
a single culture. We can have private and public, commercial and charitable,
spaces on the Net, just as we do anywhere else. If in so doing we change the
character of the Net, we do so by proper means, and so be it.
That said, how does this tie into the grander questions of what a
libertarian does or should believe. Larry says that his point was really that
the attitude of "leave the Net alone" will lead to a loss of liberty. His words
are ominous: "My argument is that this response will lead to a Net with far
less liberty than the Net we know now, with a potential to be far more
regulated than any world we have known--ever." I don't get it. In one sense,
the statement is right. If folks can defame at will on the Internet and escape
through anonymity, there is something deeply amiss. But if the argument is that
commercialization poses the same dreaded threat to the Net as defamation, then
I think that he is wrong, given that the two could live side by side in the
manner just described.
These conclusions follow, I think, from any account of libertarianism that
pays attention to the views within the ivory tower. It is, I might add,
relatively close to that which is given the idea of liberty by the ordinary
man. "Your freedom to use your fist stops at the edge of my face" is a
recognition of the universal duties of forbearance that lie at the heart of the
libertarian code. But I am told that there is a different world out there that
represents some present and powerful political reality: It is a world in which
it is wrong to think about defamation, wrong to think about trade secrets,
wrong to think about blackmail. That would make me a Red. So here is the irony.
To take a traditional libertarian position makes one a Red. If this
libertarianism has the message keep government out, then perhaps it is wrong to
describe this as a form of anarchy. Rather, it starts to resemble a
self-appointed militia that wants to keep out others who do not want to share
in their values. It is the most unlibertarian position of a monopoly on custom
and mores to the early arrivals.
That said, I don't think that Larry has tried in Code to respond to
the popular sentiment on the street. The passages I quoted in the first round
come from Chapter 7 of his book, "What Things Regulate," which begins with a
reference to that most ivory-towered individual John Stuart Mill, the author of
On Liberty , who articulated the famous "harm principle" with which
libertarian thought of all stripes has grappled since he wrote. Mill, as Larry
points out, did believe that public opinion was one counterweight to private
action, and it has been a hard question since that time, whether popular
sentiment is an equal obstacle to individual freedom as law backed by force, or
whether it works with sufficient cohesion to influence conduct in a single
direction. That is a fair and important set of questions to ask, but again, it
is not one that is unique to cyberspace.
Larry then goes astray in my view when he writes, "Threats to liberty
change. ... The labor movement was founded on the idea that the market is
sometimes a threat to liberty--not just because of low wages but also because
the market form of organization itself disables a certain form of freedom. In
other societies, at other times, the market is the key, not the enemy, of
liberty." (Page 85-86).
So here is where I am left. I do not understand how the market is the enemy
of liberty, at least if the competitive market is understood. I do not see why
low wages could ever be regarded as a threat to liberty, even if workers would
prefer, ceteris paribus , higher ones. I do not know what it means to say
that "the market form of organization itself disables a certain form of
freedom." At most, the competition of new forms of social organization draw
people away from older forms of association. So that said, the passages that I
quote do not reflect a non-academic view of liberty by guys on the street. It
reflects at least in part the conception of liberty that was championed earlier
in this century by such writers as Robert Lee Hale, who found coercion in every
refusal to deal. Or, to the extent that it really means keep the government
out, it sounds like an attempt by the earlier settlers of the new domain to
monopolize its structure at the expense of later comers who wish to play by a
different set of rules in some portion of that space.
I think that Larry is trying to reach a larger audience with his book, and
to do so, he has to explain why under the influence of commerce, cyberspace is
becoming highly regulable for those who do not participate in that commerce,
and why the regulation that commerce imposes on those who voluntarily join into
it should be a bad thing. Stated otherwise, the task that I think remains is to
translate the language and sentiments of those within the Internet culture so
that their positions can be better understood by those of us who do not yet
understand what is so distinctive and special about the Net.
