LECTURE: Foucault in Cyberspace

Yale Journal of Law and Technology Volume 2 Issue 1 Yale Journal of Law and Technology Article 2 2000 LECTURE: Foucault in Cyberspace James Boyle Follow this and additional works at: https://digitalcommons.law.yale.edu/yjolt Part of the Computer Law Commons, Intellectual Property Law Commons, and the Science and Technology Law Commons Recommended Citation James Boyle, LECTURE: Foucault in Cyberspace, 2 Yale J.L. & Tech (2000). Available at: https://digitalcommons.law.yale.edu/yjolt/vol2/iss1/2 This Article is brought to you for free and open access by Yale Law School Legal Scholarship Repository. It has been accepted for inclusion in Yale Journal of Law and Technology by an authorized editor of Yale Law School Legal Scholarship Repository. For more information, please contact . Boyle: Foucault in Cyberspace LECTURE: Foucault in Cyberspace+ James Boyle* I. INTRODUCTION I’m going to talk today about the Internet in relation to political theory and, in particular, to libertarianism. Anyone who has spent time on the Net or who has read the writings of Internet gurus knows that the default set of political assumptions on the Internet is a libertarian set of arguments. In fact, if you had to come up with a technology-or more expansively, a space-that makes libertarianism attractive, it would be the Internet. The Net mirrors some of the more popular libertarian images of the good society. The Net was formed through a relatively decentralized and anarchic process. The state certainly played a huge role in getting the ball rolling by funding research, setting up precursor networks, funding the creation of open standards, and so on. But in spite, or perhaps because, of this state involvement, the Internet developed without a single master plan or scheme. Thus, the way in which the Internet was formed can be seen as an example of the kind of spontaneous, decentralized ordering that is very attractive to libertarian thinking. Indeed this decentralized process of development is one of the reasons why the term “information superhighway” is so inappropriate. The “information superhighway” conjures up a structured world, the kind of Eisenhower world in which the state designs and builds the entire system according to a central master plan. This image is a complete contrast to the decentralized character of the Net and, for libertarians, the unplanned organic nature of its growth is precisely the key to its success. There are other reasons why the Net is implicitly hospitable to the ideas of libertarianism. People think of the Internet mainly in relation to speech, and speech is the most essential aspect of libertarianism for most people. Even those who are not libertarian in other aspects of their lives will see that speech is an area where libertarian ideas have particular bite. So much for the reasons why the Net is hospitable to libertarianism. What about the problems with libertarian ideas? Stepping back from the Net for a moment, we know that one of libertarianism’s major conceptual weaknesses as a political theory is that it cannot provide a coherent definition of harm. If one basic tenet of libertarianism is that my freedom should not be impaired until I impose harm on someone else, there obviously needs to be some coherent definition of what counts as a harm. Otherwise, the principle would be devoid of meaning. What concept of harm makes sense then? If we define harm as merely whatever the law says is a “harm,” one would be free to do only what the law says you could do. Yet this definition of harm would render libertarianism an empty ideal. If the sovereign wants to prohibit you from homosexual + © James Boyle 1999. Edited transcript of remarks delivered to the Yale Law and Technology Society on January 27, 1999. This speech is a version of the ideas initially presented in my article, Foucault in Cyberspace: Surveillance, Sovereignty, and Hardwired Censors, 66 U. CIN. L. REV. 177 (1997), which I am now developing as part of a book called Net Total: Law, Politics and Property in Cyberspace. I am grateful to the students of the Yale Law School, the members of the Law and Technology Society, and the editors of the Yale Symposium on Law and Technology for their thoughtful comments. * Professor of Law, American University, Washington College of Law. Published by Yale Law School Legal Scholarship Repository, 2000 1 Yale Journal of Law and Technology, Vol. 2 [2000], Iss. 1, Art. 2 love, driving without a seatbelt, or listening to the collected works of Donna Summer, it merely defines these as “harms” and then it may regulate you as it wishes. Defining harm through a notion of natural rights offers some possibilities, but it also offers even greater problems. Without getting into the rich and complex academic literature on this point, it is clear that (1) the search for a harm principle is a difficult one but that (2) in the realm of speech and the exchange of ideas, the problem of harm becomes much less salient for many people. (Though, to be sure, there have been powerful criticisms of this perspective in recent years.) The dominant vision is that no harm is imposed by speech. People say, “Sticks and stones will break my bones, but words-or, in this case, bytes-will never hurt me.” The Net is not only an attractive place for libertarianism because of its structure, it is a place where the conceptual problem with libertarianism-the need to define harmis much less obvious. There are other reasons that the Net is hospitable to libertarians. In the ideal libertarian world, we have to allow for the possibility of easy “exit” so that citizens can leave communities which they find oppressive or simply annoying. That is, if you do not like the rules we set up in our community, then you can leave and go somewhere else. In one sense, this harkens back to the work of social contract theorists such as Locke; Locke tells those who do not like the social contract that they can leave and go to the savage wilds of America. In the real world, of course, to “exit” in this way is frequently impossible and always costly. On the Net, exit seems like more of a real possibility. If you do not like this virtual community, you actually can leave and go to the savage wilds of America Online. In other words, you can pick your community and its rules. Instead of overarchingly coercive rules posed from above, the rules of a community are set by the community’s own members. For all of these reasons, then, the Net seems like a fertile place for libertarian ideas to go-and indeed they have, to the point that libertarians feel a real sense of resentment at the notion that meatspace governments would dare to attempt to impose their laws on the virtual world. John Perry Barlow, co-founder of the Electronic Frontier Foundation and a consultant in the areas of free speech and the Internet, captured this feeling in his Declaration of Independence of Cyberspace: Governments of the industrial world, you we (...truncated)