Cyberspace Isn’t a Place

So Ideas Of a Sheriff Are Off-Base

In the early days of the mass Internet, John Perry Barlow–the Grateful Dead lyricist turned digital activist–penned an influential “Declaration of the Independence of Cyberspace,” proclaiming the birth of a virtual nation: a separate, anarchic, and sovereign space unencumbered by rusting “industrial” governments. Today, Barlow’s metaphor is more often invoked to repudiate that Declaration, either explicitly or implicitly. Now we routinely hear that the lawless frontier must finally yield, notwithstanding the hopes of a few naïve romantics, to the civilizing power of government.

The question we should be asking, though, is not which of these visions for “cyberspace” is right but whether the underlying metaphor is really a helpful one. Does it make sense to think of the Internet as a “place” that might be “policed” in some comprehensive way, as by a town sheriff? Alternatively, is it helpful to think of “Internet regulation” as some narrow or specialized policy domain, akin to pharmaceutical or industrial regulation, perhaps with some equally specialized administrative agency empowered to set rules?

This was, perhaps, a tempting way to think back when Barlow issued his manifesto–when the Internet was experienced as a kind of Narnia to which the tech-savvy could escape via the modem-portals in their basements. The more the Internet is integrated into the average person’s ordinary life, however, the more quaint this starts to seem. The Internet is (and, really, always was) right where you are sitting now.

If we’re boringly literal, “it” is not really even an “it” in any ordinary sense: “The” Internet encompasses a whole array of evolved and evolving communications protocols, the physical and wireless infrastructures of its countless component networks, the higher-level protocols and software applications that enable particular functions ranging from web browsing to multiplayer gaming to videoconferencing, the particular sites and platforms that use those protocols, the content hosted on those platforms, the contents of the millions of discrete communications they enable, and all the people who generate and receive that content. I belabor what should be a self-evident point because the metaphor obscures a complex underlying reality in ways that distort policymaking.

First, it makes legislators too prone to imagine that we need a new and specialized body of cyberlaws to cover cyberbullying, cyberpiracy, and a whole array of other cybercrimes. But Internet users are still, for better or worse, humans confined to geographically bound bodies in boring old terrestrial legal jurisdictions. Communications technology may heighten problems of enforcement across jurisdictions, but it did not create them.

Second, analogizing the Internet to physical space makes it too easy to forget that essentially everything happening on the network is speech of one kind or another: Witness the professed astonishment of supporters of the Stop Online Piracy Act that anyone might apply the label “censorship” to a ham-handed regime of domain blocking–a regime that would treat widespread, mandatory filtering of communications by thousands of discrete actors as essentially equivalent to seizure of a drug dealer’s car.

Third, and related, it encourages violations of what legal scholar Lawrence Solum has dubbed the “Layers Principle,” which enjoins legislators to respect the layered architecture of the Internet by avoiding policy responses that seek to address problems at the content layer by regulating other layers–seeking to block certain forms of speech or illicit copying of copyrighted material by targeting the Domain Name System, imposing obligations on the operators of physical network switches, or limiting the functionality programmers may legally build into general-purpose software applications.

In practice, such remedies tend to result in a systemic “lack of fit,” in Solum’s phrase, between the aims and outcomes of regulation. It is as though we asked dictionary and periodical publishers to give us a version of English that was incapable of being used to facilitate crime. It would be unlikely to succeed, but might do a good deal of mischief in the interim.

Julian Sanchez is a research fellow at the Cato Institute. He is the former Washington editor of the technology news site Ars Technica.

*Photo courtesy of Mal_irl.


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