Problems with Legislators

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; 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. [NEEDS UPDATING!]  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. [AND WE FEAR THAT THE COLLECTIVE VALUES EMBRACED WILL NOT BE THE CORRECT ONES?]

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.) [AN ACCOUNT OF THE DMCA WOULD BE USEFUL - WEAK CODE "PROTECTED" BY STRONG LAW] The government is alsoseemingly enthusiastic about regulating "indecent" context regradless of the thriving commerce in it.

Footnotes

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The announcement of the first "Declaration of Independence for Cyberspace" written by Dallas Dutkel, aka Duncan Psyboyvych, was intercepted from the Blue Ribbon listserv then Dallas's PC was gagged and  the Declaration announcement was replaced with Barlow's during during a four hour period of the "24Hours of Democracy" Blue Ribbon Campaign in February 1996.