The First Amendment Works in Cyberspace Too
Having read Larry's valedictory, I am
impressed more with his plaintive, rhetorical ploys than his substantive
argument. It is not that he is a failed teacher who cannot convey the sound
message to a slow student. It is that he is a skilled teacher, or at least
advocate, who has tried to sell an alarmist message that just does not add
up.
The first problem that I see is that Larry cannot distinguish between a
change and a problem. Of course the proprietary systems will loom larger on the
Internet with the rise of commerce. But that makes sense for most people. If
the system turns out to be filled with folks who plant traps along the way,
there are responses to deal with them, whether they are the next generation of
cookies or the old bait-and-switch techniques. We have rules that regulate the
full-time surveillance of other individuals on land, and these can be carried
over to the Net as needed. And should we worry if the ACLU and the Christian
right have their gates to filter information? Yes, if they can impose their
will on individuals who do not join in their cause; but no if the service is
requested and disclosed in advance. But whether it is done online or in person,
it does not count as censorship (or at least censorship worthy of scorn) if
requested by the individual in question. Larry seems to think that public and
private controls are the same, but they are not, at least when the private
areas give choices and allow for new entry.
The second problem that I see with Larry's approach is that he assumes that
there is some selective, legal void in cyberspace. Take one of his examples. If
I give my information to Site 1, and then it is transfered without my consent
to an affiliated site, that could well amount to a breach of duty that exposes
the operators of both sites to serious liabilities. Just think of the roar that
went up when it was found out that some public radio stations gave their lists
out only to Democrats for recruitment purposes. We could protest with the same
intensity for illicit sharing that takes place over the Net.
Larry thinks that the old Net had this virtue, that "it embedded,
architecturally, a First Amendment." He laments that the new one does not. But
it is not as though once we shift to a partly restricted Net that First
Amendment claims cannot be brought against governments that seek to regulate
the Net in ways they could not regulate other media. So here Larry tells us
that "it becomes possible for local governments to begin to impose regulation
on people on the Net, by forcing local servers to condition access based on the
features of who people are." But the painfully obvious answer is, not if that
kind of restriction violates the First Amendment. The state could not condition
the power of a newspaper to sell its paper on the willingness to sell its
subscriber list, so why here?
Let's be clear about one thing. My position is not that government can do no
wrong on the Net, or that private firms can do no right. My view is that the
standard set of legal techniques, from contract to legislation to
constitutional protection, carry over well to this new environment, even after
it ceases to be organized as vast public space, as it was at its outset.
Markets survive only if individuals value what they get for more than it costs.
They require government protection of property rights to work well. But
governments can abuse their powers and should be subject to constitutional
checks. All agreed. But nothing about the Internet, no special brand of
cyberspace liberty, changes these fundamental relationships and the problems
they pose. The reason it is so difficult to come to grips with what Larry says
is that his threats are diffuse and often hypothetical. His down-to-earth
analogies are more instructive and less alarmist, because they do not ignore
the sensible constitutional, political, and market counterstrategies that are
available. Of course there will be problems on the Net, just as there will be
problems in any space to which any of have to venture. No one should be
Pangloss, or Cassandra. Au revoir .
