At the other extreme is the work of scholars such as Jack Goldsmith and Tim Wu, who claim there is nothing new here — at least new from the perspective private international law.[19] For many years the law has worked through these conflicts of authority. Cyberspace may increase the incidence of these conflicts, but it does not change their nature. Old structures may have to be molded to fit this new form, but the pattern of the old will suffice.
While both sides embrace partial truths, in my view both are mistaken. It is true, as Johnson and Post argue, that there is something new here. But what is new is not a difference in kind, only a difference in degree. And it is true, as Goldsmith and Wu argues, that we have always had disputes of this form. But we have not had conflicts at this level. We have not had a time when we could say that people are actually living in two places at once, with no principle of supremacy between them. This is the challenge that we will face in the future.
This duality is a problem because the legal tools we have used to resolve these questions before were not designed to deal with conflicts among citizens. They were designed to deal with conflicts among institutions, or relatively sophisticated actors. They are rules made for businesses interacting with businesses, or businesses interacting with governments. They were not designed for disputes between citizens.
Jessica Litman makes an analogous point in her work on copyright.[20] For much of the last century, Litman argues, copyright has worked fairly well as a compromise between publishers and authors. It is a law that has largely been applied to institutions. Individuals were essentially outside copyright’s purview since individuals didn’t really “publish.”
The Internet, of course, changes all this. Now everyone is a publisher. And Litman argues (convincingly, in my view) that copyright’s rules do not necessarily work well when applied to individuals.[21] The ideal rules for individuals may not necessarily be the ideal rules for institutions. The rules of copyright need to be reformed to make them better suited to a world where individuals are publishers.
The same is true of conflicts between sovereigns. The rules for dealing with these conflicts work well when the parties are repeat players — corporations that must do business in two places, for example, or individuals who constantly travel between two places. These people can take steps to conform their behavior to the limited range of contexts in which they live, and the existing rules help them to that end. But it does not follow (as it does not follow in the context of copyright) that the same mix of rules would work best in a world where anyone could be a multinational.
The solution to this change will not come from insisting either that everything is the same or that everything is different. It will take more work than that. When a large number of citizens live in two different places, and when one of those places is not solely within the jurisdiction of a particular sovereign, then what kinds of claims should one sovereign be able to make on others, and what kinds of claims can these sovereigns make on cyberspace?
This question is not yet answered. It is another latent ambiguity in our Constitution’s past — but in this case there is no founding international constitutional moment. Even if there had been, it would not have answered this question. At the founding ordinary people were not routinely living in multiple noncoordinating jurisdictions. This is something new.
Possible Resolutions
That there will be conflicts in how governments want their citizens to behave is certain. What is not yet certain is how these conflicts will be resolved. In this section, I map three separate strategies. The first was the dream of the early Internet. The second is the reality that many nations increasingly see today. And the third is the world we will slowly become.
The No Law Rule
On February 8, 1996, John Perry Barlow, former lyricist for the Grateful Dead and co-founder of the Electronic Frontier Foundation, published this declaration on EFF’s website:
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.
We have no elected government, nor are we likely to have one, so I address you with no greater authority than that with which liberty itself always speaks. 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.
Governments derive their just powers from the consent of the governed. You have neither solicited nor received ours. We did not invite you. You do not know us, nor do you know our world. Cyberspace does not lie within your borders. Do not think that you can build it, as though it were a public construction project. You cannot. It is an act of nature and it grows itself through our collective actions.
You have not engaged in our great and gathering conversation, nor did you create the wealth of our marketplaces. You do not know our culture, our ethics, or the unwritten codes that already provide our society more order than could be obtained by any of your impositions.
You claim there are problems among us that you need to solve. You use this claim as an excuse to invade our precincts. Many of these problems don’t exist. Where there are real conflicts, where there are wrongs, we will identify them and address them by our means. We are forming our own Social Contract. This governance will arise according to the conditions of our world, not yours. Our world is different.
Cyberspace consists of transactions, relationships, and thought itself, arrayed like a standing wave in the web of our communications. Ours is a world that is both everywhere and nowhere, but it is not where bodies live.
We are creating a world that all may enter without privilege or prejudice accorded by race, economic power, military force, or station of birth.
We are creating a world where anyone, anywhere may express his or her beliefs, no matter how singular, without fear of being coerced into silence or conformity.
Your legal concepts of property, expression, identity, movement, and context do not apply to us. They are all based on matter, and there is no matter here.
Our identities have no bodies, so, unlike you, we cannot obtain order by physical coercion. We believe that from ethics, enlightened self-interest, and the commonweal, our governance will emerge. Our identities may be distributed across many of your jurisdictions. The only law that all our constituent cultures would generally recognize is the Golden Rule. We hope we will be able to build our particular solutions on that basis. But we cannot accept the solutions you are attempting to impose.
In the United States, you have today created a law, the Telecommunications Reform Act, which repudiates your own Constitution and insults the dreams of Jefferson, Washington, Mill, Madison, de Tocqueville, and Brandeis. These dreams must now be born anew in us.
19.
Jack Goldsmith and Timothy Wu,
20.
See Jessica Litman, "The Exclusive Right to Read,"