The rise of an electronic medium that disregards geographical boundaries throws the law into disarray by creating entirely new phenomena that need to become the subject of clear legal rules but that cannot be governed, satisfactorily, by any current territorially based sovereign.

David Johnson and David Post, “Law and Borders—The Rise of Law in Cyberspace,” Stanford Law Review 48 (1996): 1367, 1375

Some things never change about governing the Web. Most prominent is its innate ability to resist governance in almost any form.

Tom Steinert-Threlkeld, “Of Governance and Technology,” Inter@ctive WeekOnline, October 2, 1998

There’s a meme about cyberspace that marks natives from its first generations—an idea that defines first-generation thought about the place. Cyberspace, it is said, cannot be regulated. It “cannot be governed”; its “innate ability” is to resist regulation. That is its nature, its essence, the way things are. Not that cyberspace cannot be broken, or that government cannot shut it down. But if cyberspace exists,so first-generation thinking goes, government’s power over behavior there is quite limited. In its essence, cyberspace is a space of no control.

Nature. Essence. Innate. The way things are. This kind of rhetoric should raise suspicions in any context. It should especially raise suspicion here. If there is any place where nature has no rule, it is in cyberspace. If there is any place that is constructed, cyberspace is it. Yet the rhetoric of “essence” hides this constructedness. It misleads our intuitions in dangerous ways.

This is the fallacy of “is-ism”—to confuse how something is with how it must be. There is certainly a way that cyberspace is. That much is true. But how cyberspace is is not how cyberspace has to be. There is no single way that the Net has to be; no single architecture defines the nature of the Net. The possible architectures of something that we would call “the Net” are many, and the character of life within those different architectures is diverse.

The next few chapters extend this point. But the argument can be summarized in a single line: whether the Net is unregulable is a dependent condition, and it depends on its architecture.¹

With some architectures, behavior on the Net cannot easily be controlled; with others it can. With some it cannot be controlled through top-down regulation; with others it can. Among the many possible architectures that the Net might have, the aim of this part is to argue that it is evolving in a very particular direction: from an unregulable space to one that is highly regulable. The “nature” of the Net might once have been its unregulability; that “nature” is about to flip.

To see the flip, you must first see a contrast between two different cyber-places. The contrast is a clue about how the Net could be made more regulable.

Footnotes

¹ My use of the term “architecture” is somewhat idiosyncratic, but not completely. I use it in the sense spoken of by Charles Morris and Charles Ferguson in “How Architecture Wins Technology Wars,” Harvard Business Review (March-April 1993): 86. My usage is not quite the usage of computer scientists, except in the sense of a “structure of a system”; see the definition of architecture in Pete Loshin, TCP/IP Clearly Explained, 2d ed. (Boston: AP Professional, 1997). Edit Delete