July 10, 1997 &n bsp; ; [Back to main page]
By CARL S. KAPLAN Finding Government's Role in a Global Network
David G. Post doesn't wear a powdered wig, rail against taxation without representation or denounce King George.He prefers a funky art deco necktie and sports coat -- the uniform of a young law professor. And he quietly taps out articles for legal journals and periodicals.
But he's a revolutionary in the American tradition, laying the intellectual groundwork for what he sees as resistance to tyranny.
Sitting at a yogurt bar in Washington, D.C., recently, Post, an associate professor of law at Temple University and co-director of the Cyberspace Law Institute, tells a visitor that the most important question facing the Internet is whether the United States government -- or any geographically based sovereign government for that matter -- has the power and right in all but the most limited circumstances to determine the rules of cyberspace, a virtual new nation with its own borders, residents, needs and culture.
"Who should be the lawmakers?" he asks excitedly, sipping his coffee. "We thought about this a lot until 1789. I think cyberspace poses, if not the death of the sovereign state, at least the question of the viability of the sovereign state to make law."
Post, at 45 one of the leading academic figures in the burgeoning field of cyberspace law, has argued forcefully in a series of academic papers and articles over the past two years that territorial-based governments like those of the United States, New York, Singapore or what have you, cannot efficiently or in most cases even legitimately regulate the affairs of cyberspace. Rather, he asserts, cyber-communities should be free to make their own specially tailored rules.
Some critics dismiss these ideas as unrealistic.
"He lets his enthusiasm for cyberspace get away from him," chides Jack Goldsmith, assistant professor of law at the University of Chicago.
But others think he's on to something. "He's a very smart guy, a very eloquent and forceful promoter of his views," counters Eugene Volokh, acting professor of law at the University of California, Los Angeles.
As Post sees it, territorial states face severe practical problems when attempting to regulate global cyberspace communities. Take the Communications Decency Act, Post says of the law thrown out two weeks ago by the United States Supreme Court. When a federal panel in Philadelphia declared it unconstitutional, one of the judges commented that even if the law were valid, the CDA could not solve the problem of children's easy access to global cyber-smut.
Smut on the Net is not a local U.S. phenomenon that can be censored.
David G. Post
"Smut on the Net is not a local U.S. phenomenon that can be censored," Post agrees. "It would just move offshore." The better way to attack the problem, he asserts, is to encourage parents to use filtering software.
A more fundamental problem, says Post, is that a government's lawmaking power is predicated on its right to control its physical territory. Singapore, for example, has the recognized power to pass laws that extend to events and transactions that have some relationship with the physical territory of Singapore. But when it comes to electrons passing through cyberspace, it doesn't make sense to talk about physical borders and the rights of territorial sovereigns.
"If I publish something, should I be hauled into court in Singapore because my Web site can be received there?" Post asks. "If the answer is yes, then I also must be subject to the laws of every country in the world simultaneously. And then the country with the most restrictive set of laws will monopolize rule making for the entire net. That can't be right."
For Post, the law of the net should evolve from cyber communities themselves.
One online discussion area might be very raw. "You can curse, use the f-word, defame -- anything goes," he says. But in another online community, the discussion might be moderated and certain speech would not be tolerated. Those who find the rules of one community oppressive or unfair could simply leave and join another community, a notion Post describes as "voting with your electrons."
Indeed, Post believes that people's ability to freely pick and choose among cyber communities with different rules may lead to a more valid social contract between governments and the governed in cyberspace than exists in the physical world. "That potential -- not the availability of video on demand, or interactive games, or any of the other technological wonders -- is what makes the emergence of cyberspace a truly extraordinary political event," he has written.
A tall and fit man with a dark trimmed beard and dark hair flecked with gray, Post began his intellectual career as a physical anthropologist, specializing in human evolution and primate behavior. He later switched to law because it offered a more interesting way to think about social and political life, he says.
Awarded a law degree from Georgetown University in 1986, he clerked in the United States Court of Appeals in Washington, D.C., for Ruth Bader Ginsburg, then worked in computer law at Wilmer, Cutler & Pickering, an elite Washington law firm. He clerked for Ginsburg again in 1993, after she joined the Supreme Court, then taught briefly at Georgetown's law school.
In 1995, Post and a former partner at Wilmer Cutler, David R. Johnson, helped to establish the Cyberspace Law Institute, a virtual institution -- a "think tank without the tank" in Post's words -- that promotes writing and thinking about cyberspace law among a group of 30 to 35 fellows and co-directors.
Johnson, co-author with Post on some papers, co-director of the institute and chairman of Counsel Connect, a meeting place on the Net for lawyers, praises his colleague as a rigorous thinker.
"Some people say the net is lawless," Johnson says. "It is not lawless. It will grow its own law from the ground up. Churches and other social institutions all make their own laws. This is nothing new."
Volokh of UCLA agrees. "AOL is setting up rules that a lot of people don't like and others like," he says of America Online. "CompuServe is more open. Somehow, magically, without much regulation from the government, useful things are happening online. It's a virtual hand rather than an invisible hand."
Goldsmith, the University of Chicago law professor, is less impressed. He believes that traditional government still has an important and necessary role to play in cyberspace to protect people from fraud and other harms.
"Post claims that cyberspace is unique and that traditional legal tools collapse," says Goldsmith. "This is wrong because cyberspace relations in my view are no different from telephone relations and smoke-signal relations. They all involve real people communicating in real space through a medium. I'm not suggesting there aren't complicated problems of law in cyberspace. But these issues are not really any different from those presented by current trans-border transactions."
For his part, Post says he is working on new academic papers to answer his critics. He is also having fun, in the revolutionary manner.
"In cyberspace law, we're wiping the slate clean and asking some very basic questions about how societies order themselves," he says. "We're not interpreting section 307B of some statute; we're asking fundamental questions about human social life that demand answers."
CYBERLAW JOURNAL is published weekly, on Thursdays. Click here for a list of links to other columns in the series.
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Carl S. Kaplan at ckaplan@interport.net welcomes your comments and suggestions.