"We live in a most extraordinary age. Events so various and so important that might crowd and distinguish centuries, are, in our times, compressed within the compass of a single life."That was Daniel Webster, writing in 1825. It captures a spirit we can surely identify with -- though perhaps we would be tempted to substitute "compressed within the compass of a single decade," or even a single year, as events have begun to transpire on what someone has dubbed "Internet Time."
The world, I think, can be divided into 2 kinds of people: [though I'm reminded of the joke that the world is divided into two kinds of people: those who divide the world into two kinds of people and those who don't] those who think the Internet and the new communications technologies herald a revolution calling for radical rethinking of our basic notions of law and politics and society, and those who think it does not, that it is simply more of the same, an incremental change in the way human interaction proceeds.
The notion that the Net is truly a revolutionary development that poses really fundamental challenges to established conceptions of law and society is no longer, I think, too controversial -- and I will spend a little, but just a little, time justifying it. When I started giving talks like this a "long time" (say, 3 years) ago, I had to spend 90% of my time just describing the Internet and how it works; a year or two years ago I could move on and discuss why the Net poses a fundamental challenge to our notions about law; now, I can move on to something else, to "why this is a good thing." Because as the category of "non-believers," as we can call them, shrinks, it exposes another, perhaps more significant, division: those who welcome, and those who abhor, this new development, those who see extraordinary exciting potential for human growth and development, and those who see little besides anarchy, licentiousness, chaos.
Utopian versus dystopian visions. I've been called a utopian, and I plead guilty. The word "utopia" comes from the Greek ou (not) and topos (place) -- the place that's not a place. An interesting description of cyberspace, perhaps?
Revolutions are never pretty, and they're never comfortable; Some are horrific, some are liberating; conservatives (in the Burkean sense) are always troubled, because the status quo is, by definition, upset. But even Edmund Burke, of course, found one revolution to his liking, namely our own. And though this cyberspace revolution is often compared to the revolution wrought by Gutenberg, I think there is another illuminating parallel, in fact, to the American Revolution.
[While I'm on the subject of the 2 kinds of people in the world, in preparing for this talk I came across the fact that Thomas Jefferson had a particularly interesting division: he thought all people by nature could be placed in one of two contending camps: "the sickly, weakly, timid man, who fears the people and is a Tory by nature" and "the healthy, strong, and bold [who] cherishes [the people] and is a Whig by nature." This echoed Adam Smith's earlier division of the world into monarchists "who loved peace and order" and republicans "who loved liberty and independence." I won't go so far as to say that the Whig/Tory, republican/monarchist distinction is the same as the one I'm drawing between those who embrace, and those who resist, the revolutionary implications of the new global network -- but I'm tempted to do so and will happily do so later in the bar.]
Writing in the most recent issue of the [mainstream] journal Foreign Policy, Stephen Kobrin wrote:(1)
The geographical rooting of political and economic authority is relatively recent. Territorial sovereignty, borders, and a clear distinction between domestic and international spheres are modern concepts associated with the rise of the nation-state. Territorial sovereignty implies a world divided into clearly demarcated and mutually exclusive geographic jurisdictions. It implies a world where economic and political control arise from control over territory.
The term 'disintermediation was first used to describe the replacement of banks as financial intermediaries by direct lending in money markets . . . It is often used in the world of e-commerce to describe the elimination of intermediaries by direct seller-to-buyer transactions over the Internet. Many observers argue that [electronic cash] [e-cash] is likely to disintermediate banks. Of more fundamental importance is the possibility that e-cash and e-commerce [and electronic transactions of all kinds] will disintermediate the territorial state.
[W]e face [not the end of the state, but rather the diminished efficacy of political and economic governance that is rooted in geographic sovereignty and in mutually exclusive territorial jurisdiction. Questions such as, Where did the transaction take place? Where did the income stream arise Where is the financial institution located? and Whose law applies? will lose meaning."
I think Kobrin is right, because the existing legal system cannot answer the question "what rules govern my conduct?" in a coherent or intelligible way. Let me explain briefly.
The central legal issue on the Net is not whether pornography should be regulated, whether copyright law should be strengthened, whether domain names can be trademarked -- though these are all important and interesting; The central question is: who makes the law?
I get a lot of questions of the form: "is it a violation of copyright to [fill in the blank - frame a web page? link to infringing material? etc.] But to answer that, you have to first answer the necessarily antecedent question: what law governs? What version of copyright law applies to the conduct at issue? We can pretend this is a manageable problem by giving it a name -- choice of law, or conflict of laws -- but that just masks the fact that it is a profound and in many ways an unanswerable question.
Ordinarily, we answer this choice of law question by looking, fundamentally, to physical geography: where does an event or transaction take place, and where are the effects of that transaction felt? But the "where" question is indeterminate and fundamentally irrelevant on this global network, which was designed precisely to make geography irrelevant and indeterminate. Machines -- nodes -- on the Internet have a "location," an address, but it is an address that is not tied to physical location in any way. So we can ask "where does a transaction take place," but it is only meaningful with respect to this network address, this virtual location, not to the physical location of the machine.
[Even the Supremes are getting it: from Reno v. ACLU
"Taken together, these tools constitute a unique medium--known to its users as "cyberspace"--located in no particular geographical location but available to anyone, anywhere in the world, with access to the Internet."]And as to the question "where are the effects of this Net transaction felt?", the answer, of course, is that the effects are felt equally everywhere.
An example might be useful here. I was recently contacted by a business that was looking to open up a Web-based gambling operation using a server located in Costa Rica. Who has a legitimate claim to set the rules for this conduct? The question is not simply "can I be sued somewhere?" but more fundamental: "is this a wrongful act?" Against what body of rules do I measure this conduct? Perhaps the law of Costa Rica should govern, since the activity "takes place" there. But that's trivial -- Costa Rica was chosen precisely because there's no prohibition (and if Costa Rican law is inhospitable, the server can be located in any number of other places, thank you). What about the laws of the United States? Aren't the effects of this conduct felt in Missouri and Minnesota? Doesn't that give Missouri and Minnesota a legitimate claim on this conduct?
The answer is, of course, "yes" -- these jurisdictions are affected by the conduct in Costa Rica and may therefore assert a legitimate claim on the activity taking place there. But the same holds for any sovereign -- all have, by this reasoning, an equal claim to set the rules for this behavior. The answer to the question "is this wrongful conduct?" is thus a resounding "it depends . . .". What kind of a legal system is this, that cannot give a coherent answer to this question?
This is disorienting, to be sure; the sovereign state has served us well for a long time, and it is not easy to imagine a world in which law emanates from some other place. But imagine it we must; the Net calls on us to develop not just a new law of copyright, but a new kind of law of copyright, one that does not look to the entity in control of physical territory for its justification;
We live in a world that is organized in more or less predictable, and hierarchical, ways. Think, for example, of the complex hierarchical organization of the world in which questions about copyright law arise:
1. Authors, publishers, distributors, retailers
2. Composers, music publishers, recording artists and organizations, distributors, retailers
3. screenwriters, producers, production companies, movie distributors, theaters
I could go on and on, of course; there's a hierarchical structure to the business of education, where individual instructors provide services through intermediary institutions (schools, colleges and universities), to the health care industry, the financial services industry, etc. Commercial and non-commercial activity alike takes place within an existing web of inputs/suppliers and outputs/consumers, sometimes many levels deep. And much of our law makes sense only within the context of these hierarchies. Consider the "fair use" doctrine in copyright law; we all know that it makes no sense to say that my decision about whether to hand a Dilbert cartoon out to my class should be based on a delicate balancing of four statutory factors (what Judge Frank Easterbrook has called the "four fuzzballs of fair use": the purpose of the use, the nature of the copyrighted work, the amount of the work taken, and the effect of the copying activity on the market for the original), and we know that there are thousands, probably millions, of violations each day of the fair use principles.
But we don't really care about that very much, because the existing hierarchies allow us to give meaning to the doctrine, provided that the key intermediary institutions -- the libraries, copy shops, educational institutions, and the like -- libraries understand their obligations.
But the Net completely upsets these ordered relationships. On the Net, everyone is a library, everyone a copy shop, everyone an educational institution; we're all, as the court in Reno v. Aclu noted, speakers and listeners simultaneously now. We are entering a networked, and not a hierarchical, world, a function, again, of the design of the net that decreed that all network nodes will be equipotent; as far as the Net is concerned, my newsletter site is the same as the Wall Street Journal's or the New York Times'. The Net flattens the world out, collapses these intricate hierarchies
The implications of this development for those who make their living as intermediaries are likely to be profound. Why do we need a travel agent to dig information out of a database when I (or my software agent, for that matter) can do it just as well? And lawyers are information intermediaries, too, mediating between one body of information (the "law" as it exists in the form of judicial precedent and statutes) and consumers who need access to that information. And, like travel agents, we too have had more-or-less exclusive access to the best and most efficiently-managed information databases containing this information -- the case- and statute-books and treatises in our law libraries, and, more recently, the Lexis and Westlaw online databases. And we, too, are now facing the last days of that exclusivity, as the new information technologies inevitably broaden the public's access to those compilations of information; most judicial decisions from federal (and some) state courts are now available on the World Wide Web for no charge, and an increasing number of secondary sources can be found there as well. No less for lawyers than for travel agents, dialing into these databases is rapidly becoming "valueless," not in the sense that we don't derive useful information there but in the sense that we will not be able to charge our customers for access to online resources unless we are adding some value beyond the mere retrieval of information.
To be sure, lawyers are not travel agents, merely dialing into some database and spitting back the results, but are adding interpretive value to the material that they draw out of these information resources. But as this previously unaccessible storehouse of information becomes open for public viewing, entrepreneurs will be seeking ways to bring it to the public in ways never before possible, to use the technology to perform at least some of those "interpretive" services. What happens when consumers of legal services can send "natural language" queries -- "What taxes does an out-of-state seller owe when providing services to a customer in New York?", or "How do I register the copyright in a software program, and what benefits do I get if I do so?" -- to this vast web of legal information? They will, surely, never (?) be able to retrieve information that is as good as they can get by speaking to a good lawyer, and these services will hardly replace lawyers. But they will exert a non-trivial competitive pressure on many areas of practice.
Now, no doubt structure and hierarchy will reappear as the Net becomes
populated; indeed, it may be an inherent tendency of social life to build
intermediating institutions -- but we just don't know what they'll look
like. Search engines, for example, are a new kind of intermediating institution
that did not exist before, and this is surely the tip of the iceberg.
* * * * * * * * * * * * * * * * * * * *
So formal rules (derived from long-standing notions of sovereignty) and informal relationships of all kinds organized into relatively predictable hierarchical structures are in total flux and challenged on all sides. What are we to make of all this?
Well, I've been back reading my Gordon Wood, as I do from time to time, on the social and intellectual history of the American revolution. In his book "The Radicalism of the American Revolution" -- a book I cannot recommend highly enough for anyone interested in understanding the nature of this government or the nature of revolutions -- he argues that the well-known political revolution of 1776 was embedded in, and inextricably linked to, a social revolution, a revolution in the way people interacted with one another and constructed a map of their social universe. And the echoes for what is happening in cyberspace are truly remarkable, I think.
"The American Revolution was as radical and social as any revolution in history. . . . In our eyes the American revolutionaries appear to be absorbed in changing only their governments. But in destroying monarchy and establishing republics they were changing their society as well as their governments, and they knew it. . . . By the time the Revolution had run its course in the early nineteenth century, American society had been radically and thoroughly transformed. One class did not overthrow another: the poor did not supplant the rich. But social relationships -- the way people were connected one to another -- were changed, and decisively so. By the early years of the nineteenth century the Revolution had created a society fundamentally different from the colonial society of the 18th century. It was in fact a new society unlike any that had ever existed anywhere in the world. . . . The Revolution did not just eliminate monarchy and create republics; it actually reconstituted what Americans meant by public or state power and brought about an entirely new kind of popular politics and a new kind of democratic officeholder. . . . Most important, it made the interests and prosperity of ordinary people -- their pursuit of happiness -- the goal of society and government. The Revolution did not merely create a political and legal environment conducive to economic expansion; it also released powerful popular entrepreneurial and commercial energies that few realized existed and transformed the economic landscape of the country. In short, the Revolution was the most radical and most far-reaching event in American history."(2)What is so interesting to me about this is that new conceptions of sovereignty were at the heart of this political revolution, and helped to bring about, and were in turn fed by, new social structures that challenged, fatally, the established hierarchical orderings of pre-revolutionary colonial life.
"Of all the intellectual problems the colonists faced, one was absolutely crucial: in the last analysis it was over this issue that the Revolution was fought. On the pivotal question of sovereignty, which is the question of the nature and location of the ultimate power in the state, American thinkers attempted to depart sharply from one of the most firmly fixed points in 18th century political thought."(3)Developing notions both of popular sovereignty -- that the only undivided power that is subject to no law and is literally a law unto itself rests in the People -- and, perhaps more importantly, divided sovereignty -- that there need not be one absolute sovereign but that the attributes of governmental sovereignty may be divided and distributed among different levels of institutions -- became central to the republican creed. And this new conception of political sovereignty -- of the legitimacy of the law-maker -- helped to bring about the total collapse of the hierarchical social order of the colonial world. John Adams wrote that the "suddenness of the change from monarchy to republicanism was astonishing," and the abolition of the concept of the monarch as sovereign "meant an opportunity . . .to create once and for all new, enlightened republican relationships among people."(4)
"In the 18th century, it was nearly impossible to imagine a civilized society being anything but a hierarchy of some kind, in which, in the words of the famous Calvinist preacher Jonathan Edwards, all have 'their appointed office, place and station, according to their several capacities and talents, and everyone keeps his place and continues in his proper business." I can't possibly capture the richness of Wood's descriptions of the nature of the fixed hierarchical structures of colonial society -- beginning with the relationship between King, aristocrat, and commoner, hierarchical authority within the established Church of England, the "diffuse and sometimes delicate webs of paternalistic obligation inherent in a hierarchical society", and the pervasive networks of personal and kin influences that held the colonial social hierarchies together. Nor can I capture his descriptions of the way that the republican period challenged the "primary assumptions and practices of monarchy -- its hierarchy, its inequality, its devotion to kinship, its patriarchy, its patronage, and its dependency," offering in its stead "new conceptions of the individual, the family, the state, and the individual's relationship to family, state, and other individuals." The bonds of society were loosened, in Woods phrase, in some cases to the vanishing point; all that had held society together seemed to be cast aside."(5)
The replacement of concepts of monarchical sovereignty with the notion of popular sovereignty marked the real and radical American revolution, a change of society, not just of government. People were to be changed, wrote the South Carolina physician and historian David Ramsey,
"from subjects to citizens, and the difference is immense. Subject is derived from the latin words, sub and jacio, and means one who is under the power of another; but a citizen is a unit of a mass of free poeple, who, collectively, possess sovereignty. Subjects look up to a master, but citizens are so far equal, that none have hereditary rights superior to others. Each citizen of a free state contains, within himself, as much of the common sovereignty as another. Such a republican society assumed very different sorts of human relationships from that of a monarchy."This was all, at times, no more pleasant than one might expect.
"People in the early 19th century sensed that everything had changed and could thus readily respond to Washington Irving's Rip Van Winkle, who woke up after several decades to find the society he had known suddenly gone. . . . Everything seemed to be coming apart, and murder, suicide, theft, and mobbing became increasingly common responses to the burdens that liberty and the expectation of gain were placing on people. The drinking of hard liquor became an especially common response. By the 2d decade of the 19th century American consumption of distilled spirits reached an all-time high [to] an amount nearly triple todays consumption . . . Urban rioting became more prevalent and destructive than it had been."(6)What does all this have to do with cyberspace? We are again facing a fundamental challenge to notions of how laws are legitimately made, at the same time as the structure of the society within which law has been made and applied is changing dramatically. The net is forcing us to ask the most basic question of all in law: Who is the law-maker? What is the process by which rules of conduct get made? How do we express the notion of "popular sovereignty" today? That we don't have an answer to the question "What law governs?" is the good news. The republican revolution is being replayed -- and maybe because I'm a hopeless romantic who wishes he could experience the excitement, say, of reading Cato's Letters, or Common Sense, or the Federalist Papers, as they came off the presses, I find this an immensely exciting prospect.
With all due respect to my esteemed colleagues on these panels about "Law in Cyberspace," I don't think that the really important function of meetings like this is for you to hear from us what "the law is" in cyberspace. Disintermediator, disintermediate thyself! Somehow we have come to view the law as something made "out there," and we look to the "experts" to tell us whether or not we're doing something wrongful. We have in some sense forgotten that the law is not something imposed from above by the sovereign, but are rules that we are ultimately responsible for. The net demands that we take another look at this. What you think and what you do matters here. Though the experts look down their noses at the developing notions of netiquette, of what the community believes constitutes civil and uncivil behavior, they can, I suggest, do so no longer. We are engaged -- whether we know it or not -- in a gigantic, worldwide conversation about sovereignty, about the source of rules for conduct, and, though I have ideas about where this conversation may lead us, none of us can say what new conception of sovereignty lies around the bend. Of course this conversation will be cacophonous; the republican ideology was not forged in quiet academic halls but largely through the extraordinary medium of contending pamphlets and newspaper columns; the Federalist Papers, recall, were newspaper articles, debated in taverns and schoolrooms and parlors. This was a conversation about the rules in which people were going to live, and we're having one now.
2. Gordon Wood, The Radicalism of the American Revolution, at 5-8.
3. Bailyn, The Ideological Origins of the American Revolution, at 198.
4. Quoted in Wood, supra note 2, at 169.
5. Id. at 19.
6. Id., at 306-07.