Part 2 Extended Direct Quotes

(p. 189)

The preceding chapters have all been about this very point. We can have an idea of sovereign power‹the right of the sovereign to regulate or control behavior‹but our idea is meaningful only when we place it within a particular regulatory context, or within particular architectures of control. The state's power may be "absolute," but if the architecture does not support regulation, the state's effective power is quite slight. On the other hand, the state's power may be limited, but if the architectures of control are very effficient, this limited power can be extraordinarily extensive. To understand a state's power to regulate we must ask: How well does its infrastructure support a structure of regulation?

This is the question we should ask about the regulation of cyberspace‹about sovereignty there. We should ask this question first about real-space governments. What power do they have to regulate life in cyberspace? How does the architecture of cyberspace support the regulation of real-space governments there? And then we should ask it about the "sovereignty" of cyberspace itself.

(p. 218)

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 is, 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 3‹we are likely to get a sinking feeling. This seems impossibly difficult, this idea of governing cyberspace. Who is cyberspace? Where would it vote? The very idea seems abhorrent to cyberspace itself. As John Perry Barlow put it in his "Declaration of the Independence of Cyberspace": Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather."

But, our problem is not with governance in cyberspace. Our problem is simply with governance. There is no special set of dilemmas that cyberspace will present;

(p. 219)

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. Yet 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 in 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. 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.

Like the Irish, we are weary of governments. We are profoundly skeptical about the product of democratic processes. 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 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. (At the same time, of course, the government is passing all sorts of laws to increase the protections for intellectual property.)

A perfect example of this point is the government's recent hand-off of control of the management of the domain name system.21 For some time the government had been thinking about how best to continue the governance or control of the domain name system. 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.

Think about the kinds of questions my Georgian friend might ask. A "nonprofit corporation devoted to the collective interest"? Isn't that just what government is supposed to be? A board composed of representative stakeholders? Isn't that what a

(p. 220)

Congress is? Indeed, my Georgian friend might observe that this corporate structure differs from government in only one salient way‹there is no ongoing requirement of elections.

This is policy making vested in what is in effect an independent agency, but one wholly outside the democratic process. And what does this say about us? What does it mean when our natural instinct is to put policy-making power in bodies outside the democratic process?

First, it reflects the pathetic resignation that most of us feel about the products of ordinary government. We have lost faith in the idea that the product of representative government might be something more than mere interest‹that, to steal the opening line from Justice Marshall's last Supreme Court opinion, power, not reason, is the currency of deliberative democracy.22 We have lost the idea that ordinary gov ernment might work, and so deep is this despair that not even government thinks the government should have a role in governing cyberspace.

I understand this resignation, but it is something we must overcome. We must isolate the cause and separate it from the effect. If we hate government, it is not be- cause the idea of collective values is anathema. If we hate government, it is because we have grown tired of our own government. We have grown weary of its betrayals, of its games, of the interests that control it. We must find a way to get over it. We stand on the edge of an era that demands we make fundamental choices about what life in this space, and therefore life in real space, will be like. These choices will be made; there is no nature here to discover. And when they are made, the values we hold sacred will either influence our choices or be ignored. The values of free speech, privacy, due process, and equality define who we are. If there is no government to insist on these values, who will do it?

When government steps aside, it is not as if nothing takes its place. Paradise does not prevail. It's not as if private interests have no interests, as if private interests don't have ends they will then pursue. To push the antigovernment button is not to tele- port us to Eden. When the interests of government are gone, other interests take their place. Do we know what those interests are? Are we so certain they are better? If there are choices to be made, they will be made. The question is only by whom.

If there is a decision to be made about how cyberspace will grow, then that decision will be made. The only question is by whom. We can stand by and do nothing as these choices are made‹by others, by those who will not simply stand by. Or we can try to imagine a world where choice can again be made collectively, and responsibly.

(page 228)

The solution to this problem is not less news, or a ban on polling. The solution is a better kind of polling. The government reacts to bad poll data because that is the only data we have. But these polls are not the only possible kinds of polls. There are techniques for polling that compensate for the errors of the flash poll and produce judgments that are both more considered and more stable.

An example is the "deliberative" poll devised by Professor James Fishkin.l0 Rather than a pulse, Fishkin's polls seek an equilibrium. They bring a cross-section of people together for a weekend at a time. These people, who represent all segments of a society, are given information before the poll that helps ensure that they know something about the subject matter. After being introduced to the topic of the poll, they are then divided into small juries and over the course of a couple of days argue about the topic at issue and exchange views about how best to resolve it. At the end they are asked about their views, and their responses at this point form the "results" of the poll.

The great advantage of this system is not only that information is provided but that the process is deliberative. The results emerge out of the reasoning of citizens debating with other citizens. People are not encouraged to just cast a ballot. They give reasons for their ballot, and those reasons will or will not persuade.

We could imagine (we could dream) of this process extending generally. We could imagine it becoming a staple of our political life. And if it did, it might well do good, as a counterweight to the flash pulse and the perpetually interested process that ordinary government is. It would be a corrective to the process we now have, and one that might bring hope.

Cyberspace might make this process where reasons count more possible; it certainly makes it even more necessary. It is possible to imagine using the architecture of the space to design deliberative forums, which could be used to implement Fishkin's polling. But my message throughout is that cyberspace makes the need all the more urgent.11

There is a magic in a process where reasons count‹not where experts rule or where only smart people have the vote, but where power gets set in the face of reason. The magic is in a process where citizens give reasons, and citizens understand that power is constrained by these reasons.

(p. 229)

This was the magic that Tocqueville wrote of when he told the world of the amazing system of juries in the United States. Citizens serving on juries must make reasoned, persuasive arguments in coming to decisions that often have extraordi- nary consequences for social and political life. Writing in 1835, Tocqueville said of

"The jury. . . serves to communicate the spirit of the judges to the minds of all the citizens; and this spirit, with the habits which attend it, is the soundest prepara- tion for free institutions. It imbues all classes with a respect for the thing judged and with the notion of right.... It teaches men to practice equity; every man learns to judge his neighbor as he would himself be judged.... The jury teaches every man not to recoil before the responsibility of his own actions and impresses him with that manly confidence without which no political virtue can exist. It in- vests each citizen with a kind of magistracy; it makes them all feel the duties which they are bound to discharge towards society and the part which they take in its government. By obliging men to turn their attention to other affairs than their own, it rubs off that private selfishness which is the rust of society."12

It wasn't Tocqueville, however, or any other theorist, who sold me on this ideal. It was a lawyer who first let me see the power of this idea‹a lawyer from Madison, Wisconsin, my uncle, Richard Cates.

We live in a time when the sane vilify lawyers. No doubt lawyers are in part re-sponsible for this. But I can't accept it, and not only because I train lawyers for a liv- ing. I can't accept it because etched into my memory is a picture my uncle sketched, explaining why he was a lawyer. In 1974 he had just returned from Washington, where he worked for the House Committee on Impeachment‹of Nixon, not Clin- ton, though Hillary Rodham was working with him. I pressed him to tell me every- thing; I wanted to hear about the battles. It was not a topic that we discussed much at home. My parents were Republicans. My uncle was not. My uncle's job was to teach the congressmen about the facts in the case‹to first learn everything that was known, and then to teach this to the members of the com- mittee. Although there was much about his story that I will never forget, the most compelling part was not really related to the impeachment. My uncle was describing for me the essence of his job‹both for the House and for his clients:

"It is what a lawyer does, what a good lawyer does, that makes this system work. It is not the bluffing, or the outrage, or the strategies and tactics. It is something much simpler than that. What a good lawyer does is tell a story that persuades. Not by hiding the truth or exciting the emotion, but using reason, through a story, to persuade. When it works, it does something to the people who experience this persua- sion. Some, for the first time in their lives, see power constrained by reason. Not

(p. 230)

by votes, not by wealth, not by who someone knows‹but by an argument that persuades. This is the magic of our system, however rare the miracles may be.

This picture stuck‹not in its elitist version, of experts deciding what's best, nor in its Rikki Lake version, of excited crowds yelling opponents down. But in its simple version that juries know. And it is this simple picture that our current democracy misses. Where through deliberation, and understanding, and a process of building community, judgments get made about how to go on.

We could build some of this back into our democracy. The more we do, the less significant the flash pulses will be. And the less significant these flash pulses are, the more we might have faith again in that part of our tradition that made us revolutionaries in 1791‹the commitment to a form of government that respects deliber- ation, and the people, and that stands opposed to corruption dressed in aristocratic baubles.

(p. 233)

"... an obvious and critical point that the Y2K crisis makes real: code is not elsewhere, and we are not elsewhere when we feel its effects. As Andrew Shapiro puts it: "Seeing cyberspace as elsewhere . . . misconstrue[s] its legal significance. It . . . keep[s] us from seeing the way that regulatory forces like . . . code, which some say are'there,'are actually affecting us here."2

We live life in real space, subject to the effects of code. We live ordinary lives, sub- ject to the effects of code. We live social and political lives, subject to the effects of code. Code regulates all these aspects of our lives, more pervasively over time than any other regulator in our life. Should we remain passive about this regulator? Should we let it affect us without doing anything in return?

And thus again the odd juxtaposition of Declan's two obsessions. Governments should intervene, at a minimum, when private action has public consequences; when shortsighted actions threaten to cause long-term harm; when failure to intervene un- dermines significant constitutional values and important individual rights; and when a form of life emerges that may threaten values we believe to be fundamental.

Yet so pervasive is our sense of the failure of government that a writer as intelli- igent as Dedan cannot see the implications of these two great evils that he does so much to report. If we believe that government cannot do anything good, then De clan's plea‹that it do nothing‹makes sense. And if government can do nothing, then it follows that we should treat these man-made disasters as natural. Just as we speak of the disaster of the West Coast sliding into the Pacific, so too should we speak of a disaster of code sliding us into another dark age. Neither can we do any thing about, yet both are great topics for growing audiences.

I've advocated a different response. We need to think collectively and sensibly about how this emerging reality will affect our lives. Do-nothingism is not an answer; something can and should be done.

I've argued this, but not with much hope. So central are the Declans in our political culture today that I confess I cannot see a way around them. I have sketched small steps; they seem very small. I've described a different ideal; it seems quite alien. I've promised that something different could be done, but not by any institution of government that I know. I've spoken as if there could be hope. But Hope was just a television commercial.

The truth, I suspect, is that the Declans will win‹at least for now. We will treat code-based environmental disasters‹like Y2K, like the loss of privacy, like the cen- sorship of filters, like the disappearance of an intellectual commons‹as if they were produced by gods, not by Man. We will watch as important aspects of privacy and free speech are erased by the emerging architecture of the panopticon, and we will speak, like modern Jeffersons, about nature making it so‹forgetting that here, we are nature. We will in many domains of our social life come to see the Net as the product of something alien‹something we cannot direct because we cannot direct anything. Something instead that we must simply accept, as it invades and transforms our lives.

(p. 234)

Some say this is an exciting time. But it is the excitement of a teenager playing chicken, his car barreling down the highway, hands held far from the steering wheel. There are choices we could make, but we pretend that there is nothing we can do. We choose to pretend; we shut our eyes. We build this nature, then are constrained by this nature we have built.

It is the age of the ostrich. We are excited by what we cannot know. We are proud to leave things to the invisible hand. We make the hand invisible by looking the other way.

But it is not a great time, culturally, to come across revolutionary technologies. We are no more ready for this revolution than the Soviets were ready for theirs. We, like the Soviets, have been caught by a revolution. But we, unlike they, have something to lose.