These complications are magnified when we consider the link between geography and cyberspace. Even if I should have the right to vote in the community where I work, should I have the right to vote in the community where I play? Why would real-space citizens need to have any control over cyber-places or their architectures? You might spend most of your life in a mall, but no one would say you have a right to control the mall’s architecture. Or you might like to visit Disney World every weekend, but it would be odd to claim that you therefore have a right to regulate Disney World. Why isn’t cyberspace more like a mall or a theme park than like the district in which you live and vote?
Your relationship to a mall, or to Disney World, is the relationship of consumer to merchant. If you don’t like two-all-beef-patties-special-sauce-lettuce-cheese-pickles-onions-on-a-sesa-me-s eed-bun, then you can go to Burger King; McDonald’s has no duty to let you vote on how it makes its hamburgers. If you don’t like the local mall, you can go to another. The power you have over these institutions is your ability to exit. They compete for your attention, your custom, and your loyalty; if they compete well, you will give them your custom; if they don’t, you will go somewhere else. That competition is crucial in disciplining these institutions. What makes them work well is this competition among these potential sources for your custom.
This merchant-sovereign part of our life is important. It is where we spend most of our time, and most people are more satisfied with this part of their lives than they are with the part within which they get to vote. In this sense, all these places are sovereigns; they all impose rules on us. But our recourse with respect to merchant-sovereigns is simply to take our business elsewhere.
But the merchant-sovereign part of our life is not exclusive. There are also citizen-sovereign parts of our life. There are no states that get to say to their citizens: “You have no right to vote here; if you don’t like it, leave.” Our role in relation to our governments is that of a stakeholder with a voice. We have a right — if the government is to be called democratic — to participate in its structuring.
And this is true not just with governments. It would be an odd university that gave its faculty no right to vote on issues central to the university (though it is an odd corporation that gives its employees a right to vote on issues related to employment). It would be an odd social club that did not give members some control over its functions — though again, there are such clubs, just as there are nondemocratic governments. Even the church allows its members to determine a great deal of how members are governed. In these institutions, we are members, not consumers — or, not just consumers. These institutions give consumers control over the rules that will govern them. In this sense, these institutions are citizen-sovereignties.
As a descriptive matter, then, cyberspace is not yet dominated (or even broadly populated) by citizen-sovereignties. The sovereignties we see so far are all merchant-sovereignties. And this is even more clearly true with the Internet. To the extent sites are sovereign, they are merchant-sovereigns. Our relationship to them is the same as our relationship to McDonald’s.
Some theorists have tried to collapse these two different models into one. Some have tried to carry the member model into every sphere of social life — the workplace, the mall, the local pub.[9] Others have tried to carry the consumer model into every sphere of social life — followers of Charles Tiebout, for example, have tried to explain competition among governments along the lines of the choices we make among toothpastes.[10] But even if we cannot articulate perfectly the justifications for treating these choices differently, it would be a mistake to collapse these different spheres into one. It would be hell to have to vote on the design of toothpaste, and tyranny if our only recourse against a government we didn’t like was to move to a different land.
But then is it a problem that cyberspace is comprised of just merchant-sovereignties? The first defense for merchant-sovereignties is developed in the writings of David Post and his sometime coauthor David Johnson.[11] Post’s article “Anarchy, State, and the Internet” best sets the stage. Communities in cyberspace, Post argues, are governed by “rule-sets.” We can understand these rule-sets to be the requirements, whether embedded in the architecture or promulgated in a set of rules, that constrain behavior in a particular place. The world of cyberspace, he argues, is comprised by these rule-sets. Individuals will choose to enter one rule-set or another. As rule-sets compete for our attention, the world of cyberspace will come to be defined by this competition of merchant-sovereigns for customers.
Post’s account again is descriptively accurate. It is also, Post argues, normatively recommended. Sovereigns should be understand as a firm’s market power is understood in antitrust law. By “market power” antitrust lawyers and economists mean a firm’s ability to raise prices profitably. In a perfectly competitive market, a firm with no market power is the one that cannot raise its prices because it would lose so much in sales as to make the increase not worth it.[12] The firm that does have market power can raise prices and see its profits increase. The firm with market power also has the ability to force consumers to accept a price for a good that is higher than the price in a competitive market.
We might imagine an analogous constraint operating on government. Sovereigns, like firms, can get away with only so much. As they become more repressive, or as they regulate more harshly, other sovereigns, or other rule-sets, become competitors. At some point it is easier for citizens to leave than to put up with the burdens of regulation[13], or easier to evade the law than to comply with it.
Because such moves are costly in real space, sovereigns, at least in the short run, can get away with a lot. But in cyberspace, moving is not so hard. If you do not like the rule-set of your MMOGs, you can change games. If you do not like the amount of advertising on one Internet portal, then in two seconds you can change your default portal. Life in cyberspace is about joining without ever leaving your home. If the group you join does not treat you as you want to be treated, you can leave. Because competitive pressure is greater in cyberspace, governments and other propagators of rule-sets must behave like firms in a competitive market.
This is an important and interesting conception of governance. Important because it describes governance in cyberspace; interesting because it perhaps shows the purpose and limits of citizen-sovereignty in real space. It argues for a world of volunteers, one where rules are not imposed but selected. It is a world that minimizes the unconcented-to-power of any particular government, by making governments competitors for citizens. It is government like McDonald’s or Coca-Cola — eager to please, fearful of revolt.
There are reasons, however, to be skeptical about this view. First, consider the claim that exit costs are lower in cyberspace than in real space. When you switch to a different ISP or Internet portal, you no doubt confront a different set of “rules”, and these rules no doubt compete for your attention. This is just like going from one restaurant or shopping mall to another. There are competing rule-sets; they are among several factors you consider in choosing an ISP; and to the extent that there is easy movement among these rule-sets, this movement is undoubtedly a competition among them. Some ISPs, of course, try to make this movement difficult. If you’ve been a member of AOL for ten years, and you decide you want to switch, AOL doesn’t make that change easy by providing, for example, a simple ability to forward your e-mail. But as people recognize this restriction imposed by AOL, they’ll choose other ISPs. If the competition is real, the rule-set will compete.
9.
See Michael Walzer_, Spheres of Justice: A Defense of Pluralism and Equality_ (New York: Basic Books, 1983).
10.
See Charles M. Tiebout, "A Pure Theory of Local Expenditures,"
11.
See David G. Post, "Governing Cyberspace,"
12.
See Phillip E. Areeda et al.,