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The original appearance of this entry was in Danny Weitzner - Open Internet Policy

Tim Wu and Jack Goldsmith’s new book, “WHO CONTROLS THE INTERNET: Illusions of a Borderless World.” is out. I suppose that every generation of scholars and practioners are entitled to at least partially re-invent legal frameworks, but I was quite surprised at how far Wu and Goldsmith have gone to suggest that the new expressive and democratizing potential of the Internet will and/or should be just swallowed up by State power and that there’s really nothing we can or should do about it. This debate is far from theoretical as the international community (governments as well as leading companies such as Google, Microsoft, and Yahoo, as well as various segments of Chinese government and society) wrestles with the response to Chinese demands for censorship of political speech and intrusion on internationally-recognized norms of privacy. The theory we adopt about the relationship between the Web and national law can have a determinative impact on these and other questions.

It’s important to pay careful attention to the argument in this book because the authors present us with a false dilemma in opposing to a utopian anarchy (the way they characterize early views of the Internet and the law) against a state-dominated, bordered Internet (where they say we’re going to end up). It would be worse than ironic if the spread of the speech-enhancing medium that is the Internet ends up as the occassion for us to turn our collective back on the centuries-old project of expanding the right of individual expression.

I did a review of the Wu/Goldsmith book for the Wilson Quarterly, some of which I quote here. As a foil for the new theory of the Internet and the law that the authors propound, they represent the old style of thinking through the words of John Perry Barlow, a Grateful Dead songwriter and cofounder of the Electronic Frontier Foundation, an Internet civil liberties group. Barlow issued a “Declaration of the Independence of Cyberspace” to governments. It read in part,

?I declare the global social space we are building to be naturally independent of the tyrannies you seek to impose on us. You have no moral right to rule us nor do you possess any methods of enforcement we have true reason to fear. . . . Cyberspace does not lie within your borders.?

My review of the book goes on to suggest that using Barlow’s theory as a strawman fails to provide a complete understanding of how Internet policy did evolve in its early days, and leads to some serious errors in analysis.

That cyberspace has not ended up independent of national sovereignty is apparent to all of us. Consumer fraud occurs but is prosecuted by attorneys general; obscenity, though available, is generally illegal; and businesses make contracts online that sometimes are broken and get adjudicated by the same courts that enforce offline contracts. In the face of this inexorable civilization (John Perry Barlow called it colonization) of cyberspace, Jack Goldsmith and Tim Wu, professors at Columbia and Harvard law schools respectively, seek to convince us that despite the hopes of the early digerati, or Internet enthusiasts, the medium’s users have properly recognized its subservience to national law.
[..]
[G]oldsmith and Wu are so busy correcting the romantic technological determinism of the digerati that they fall into a sort of legalistic determinism. Having established that nations should have some role on the Internet, and that borders do have some value, they swing us alarmingly from the anarchy of Barlow’s cyberspace to a realpolitik that places national sovereignty above all other moral and political values.

After a vividly documented chapter on the challenges that Chinese censorship and political repression pose to the Internet, our law professors tell us that on the bordered Internet, “there is no legitimate basis for giving any single law a kind of global constitutional status.” So the Chinese laws must be given effect online along with all other national laws. Are Goldsmith and Wu so convinced of the legitimacy of state power that they are prepared to toss out international norms of human rights?

I believe that part of this extreme slide toward the power of the state has to do with a misreading of the document that I think is the real declaration of independence for the Internet the US Supeme Court decision in Reno v. ACLU. Goldsmith and Wu discuss this case, but frankly seem to miss the point. Without any explanation or citation (elements of an argument one would normally expect of law professors), they associate this case with the ‘borderless’ and lawless view of the Internet associated with Barlow. To the contrary, when considering the Internet then in 1997, the Supreme Court stated very clearly that the Internet deserved the protection of law (the US Constitution in this case) because of it’s democratic potential. Reno stands as the first time that a major legal system embraced the Internet. It was not, as the authors would have us belief, an aberration to be corrected once the Court developed a more mature understanding of the Internet.

By mischaracterizing Reno as part of the ‘wacky’ borderless Internet theory, they lose track of the direction that it set for the development of Internet law. Goldsmith and Wu are right to point out that the technology of the Internet alone does not mandate any special legal treatment. But they are wrong to suggest that a legal theory of the Internet can be developed without recognition of what is unique about the Net. It is the potential of Web technology to enhance human societies that should inspire us all to protect its ability to realize that potential. That different nations will have different views of what that potential is should not surprise us. But where differences, as expressed through the exercise of national sovereignty, lead to restrictions on human rights, the free exchange of ideas and free trade, we should recognize those as clearly harmful, not just reflexively accept them in the name of respecting borders.