Of course, my view is that citizens of any democracy should have the freedom to choose what speech they consume. But I would prefer they earn that freedom by demanding it through democratic means than that a technological trick give it to them for free.
But whether or not you, or I, like this regime, my argument at this point is predictive. This regime is a natural compromise between two results, neither of which governments accept — governments will neither accept a world where real space laws don’t affect cyberspace, nor a world where the rule of one government, or of a few large governments, controls the world. This regime gives each government the power to regulate its citizens; no government should have the right to do anything more.
This balance is already being struck privately on the Net — though there’s significant resistance and unease about it. As I’ve already described, in January 2005, Google announced that it was giving something to the Chinese government it has refused to give anyone else in the world — a version of the Google search engine that blocks content the Chinese government doesn’t want its citizens to see.[37] Thus, if you search on “democracy” or “human rights” on Google.cn, you wouldn’t find what you’ll find if you search in the same way on Google.com. (Wikipedia now keeps a list of words blocked by search engines in China.[38]) Thus, Google would effectively remake the Internet for the Chinese according to the values the Chinese government pushes.
I understand the motive (profit). I certainly understand the justification (it will speed China to a real democracy). But whether or not you believe this balance is right in the context of Communist China, it certainly has more justification when we’re describing agreements among democratic nations. What the Chinese do to its journalists is, in my view, wrong. If a Chinese publisher offered to publish this book in China only on the condition that I omitted this paragraph, I certainly wouldn’t. But I have a different view about rules imposed by France or Italy.
One important consequence of this architecture — indeed, perhaps reason enough to oppose it — is that it will make regulation easier. And the easier it is to regulate, the more likely regulation is.
Yet this is the trade-off — between cost and the willingness to regulate — we have seen again and again. Cost for the government is liberty for us. The higher the cost of a regulation, the less likely it will be enforced. Liberty depends on the regulation remaining expensive. Liberty comes with friction.
When it becomes easy or cheap to regulate, however, this contingent liberty is at risk. We can expect more regulation. In these cases, if we want to preserve liberty, we will need to develop affirmative arguments for it. We will need these affirmative arguments to prevent identity-based regulation of the Net. As I explain in the balance of this book, there is both a surprisingly great desire for nations to embrace regimes that facilitate jurisdiction-specific regulation and a significant reason why the costs of regulation are likely to fall. We should expect, then, that there will be more such regulation. Soon.
The effect, in short, would be to zone cyberspace based on the qualifications carried by individual users. It would enable a degree of control of cyberspace that few have ever imagined. Cyberspace would go from being an unregulable space to, depending on the depth of the certificates, the most regulable space imaginable.
Part Five - Responses
The argument of Part I was that the unregulability of the original Internet will pass. Architectures will develop to make behavior there regulable again. Part II described one aspect of that regulability — technology. “Code” will be an increasingly important part of that regulation, directly enforcing the control the law typically achieves through threats. Part III then considered three contexts in which changing technology would render ambiguous our commitments to fundamental values. This I called a latent ambiguity. How we protect IP, or privacy, or free speech will depend upon fundamental choices our framers didn’t make. Part IV then mapped this conflict to jurisdictions. Again, the lesson circles back to Part I: The tendency of government will push to an ever more regulable Net, this time to return the zones of geography to a borderless Internet.
Throughout these four parts, my central objective has been to force a recognition that is obvious once remarked: that there are choices to be made about how this network evolves. These choices will affect fundamentally what values are built into the network.
The question for this part is whether we’re capable of making those choices. My argument is that we’re not. We have so completely passed off questions of principle to the judicial branch, and so completely corrupted our legislative process with the backhand of handouts, that we confront this moment of extraordinary importance incapable of making any useful decisions. We have been caught off-guard, drunk on the political indulgence of an era, and the most we may be able to do is stay on our feet until we have time to sober up.
Chapter 16. The Problems We Face
There are choices that will determine how cyberspace is. But, in my view, we Americans are disabled from making those choices. We are disabled for three very different reasons. The first is tied to the limits we place on courts; the second to the limits we have realized in legislatures; and the third to the limits in our thinking about code. If choice must be made, these limits mean we will not be making that choice. We are at a time when the most significant decisions about what this space will be are being made, but we don’t have the institutions, or practice, to evaluate or readily alter them.
In this chapter, I describe these problems, and in Chapter 17, I sketch three solutions to them. Neither description will be complete, but both should be suggestive. The problems that cyberspace reveals are not problems with cyberspace. They are real-space problems that cyberspace shows us we must now resolve — or maybe reconsider.
Problems with Courts
There are two types of constitutions, one we could call codifying, and the other transformative. A codifying constitution tries to preserve something essential about the constitutional or legal culture in which it is enacted — to protect that cultural attribute against changes in the future. A transformative constitution (or amendment) does the opposite: It tries to change something essential in the constitutional or legal culture in which it is enacted — to make life different in the future, to remake some part of the culture. The symbol of the codifying regime is Ulysses tied to the mast; the symbol of the transformative is revolutionary France.
Our Constitution has both regimes within it. The Constitution of 1789 — before the first ten amendments — was a transformative constitution. It “called into life” a new form of government and gave birth to a nation.[1] The Constitution of 1791 — the Bill of Rights — was a codifying constitution. Against the background of the new constitution, it sought to entrench certain values against future change.[2] The Civil War amendments were transformative again. They aimed to remake part of what the American social and legal culture had become — to rip out from the American soul a tradition of inequality and replace it with a tradition and practice of equality.[3]
37.
As described above, see supra Chapter 5, note 38, within six months, one of the founders of Google was having second thoughts. See Clive Thompson, "Google's China Problem (And China's Google Problem),"
38.
See Wikipedia, "List of Words Censored by Search Engines in Mainland China," avail able at http://en.wikipedia.org/wiki/List_of_words_blocked_by_search_engines_in_Mainland_China (cached: http://www.webcitation.org/5J6nnL3sm).
2.
See, for example, Jack N. Rakove,
3.
This is not to deny that some aspects of the equality delineated in the Civil War amend ments echoed in our constitutional past. The abolitionists, of course, made great weight of the Declaration of Independence's claims to equality; see, for example, Trisha Olson, "The Natural Law Foundation of the Privileges or Immunities Clause of the Fourteenth Amendment,"