Netanel – Cyberspace Self-Governance: A Skeptical View From Liberal Democratic Theory

Reference:

Netanel, Neil W., Cyberspace Self-Governance: A Skeptical View from Democratic Theory. As published in California Law Review, Vol. 88, March 2000. Available at SSRN: http://ssrn.com/abstract=175828 or doi:10.2139/ssrn.175828

A very powerful critique of the kind of view this thesis offers is presented by Neil Netanel in ‘Cyberspace self-governance: a sketpical view from liberal demoractic theory’. Netanel raises multiple attacks against the idea that applying libertarian philosophy to the norms of cyberspace is possible, or a good thing.

I will argue that an untrammeled cyberspace would prove inimical to the ideals of liberal democracy and
indeed that selective state regulation of cyberspace is warranted to protect and promote those ideals. p. 403

Netanel raises four objections to this kind of thinking. The first is that representative democracy is a good thing and better at realising liberal goals than direct democracy. Second, that cyberspace cannot really fulfill the dream of self-governance.This objection has two parts. One is that such freedom of movement destroys community. this relates to the daily me point:

As cyberians correctly assert, cyberspace is
characterized by considerable freedom of movement. But that freedom of
movement significantly undermines the stability required for community
generation of social norms,

Second, that it is not true that movement is fully free:

At the same time, however, online
freedom of movement—both exiting from existing rule spaces and finding
or establishing new ones—may be significantly more costly than cyberanarchists
assume. As a result, liberal ideals can be realized only through the
enforcement of meta-norms that protect those dissenters for whom exit is a
less than tenable alternative. p.405

The third point relates to the problem of using a market to structure society:

Third, the cyberanarchist claim of liberal “government” by individual
decision making is vulnerable to many of the standard criticisms of the
Hayekian view of the market as fundamentally superior to democratic
institutions.26 In cyberspace, no less than in real space, consumer decisions
may represent an impoverished account of individuals’ true preferences for
many types of social goods. By the same token, market failure is no less
endemic to online decision making than to its offline counterpart. In particular,
the cyberanarchist vision would countenance some of the very
externalities that liberal democracy seeks to minimize, including status discrimination
and the suppression of minority viewpoints. p. 405

Finally he raises a point about the digital divide:

opportunities to communicate,
process information, and even gain access to cyberspace are vastly
unequal. The cyberian vision lacks a vehicle to provide such citizenship
resources to those who currently lack them. Without state intervention,
therefore, cyberspace self-governance will, at best, resemble the Athenian
democracy of the privileged few, not participatory liberalism.

This is a good point. We must distinguish two claims Netanel is discussing in relation to cyberians: 1, that cyberspace can and should be self-governing, and two, that it will replace or diminish the role of the nation state.

If we accept that the nation state will always have a role in cyberspace, then we can avoid many of these strong problems. We are not arguing that cyberspace should be left totally alone, and that it will eventually be able to manage it’s own affairs and those of people in the physical world if we do so. This is largely the claim that Netanel is attacking.

A final thing he criticises, which will be interesting for the thesis, is the idea that cyber commnuities should be given more autonomy. This gets back to our problem about evil worlds: there is nothing about the nature of
virtual communities to justify granting them greater leeway than their territorial
counterparts. In fact, there may well be reason to impose greater
restrictions on virtual communities.p.406

Netanel’s conclusion is much the same as ours – that cyberspace offers potential to improve some liberal realities, but that there are some things that must be done to protect these. The government should not completely step away from the internet:

my
conclusion is not that state intervention is always appropriate. Rather, in
each instance the benefits of state intervention must be balanced against
possible harms to speech and association interests that themselves have
inherent value for liberal democracy. 406

Netanel also interestingly looks at the idea that individuals on the internet might establish their own government to regulate the internet.

Quotes

A 1997 Presidential Directive, which heralded the dramatic withdrawal of the United States
government from significant portions of Internet administration,3 instructs
federal agencies to “recognize the unique qualities of the Internet, including
its decentralized nature and its tradition of bottom-up governance.” 398

John Perry Barlow notwithstanding, that realm is firmly embedded in a foundation of state institutions,
subsidies, and law.6, p 399

But within the interstices of state intervention and support,cyberspace also offers a rich field for private ordering. Rule making within cyberspace reflects the highly decentralized character of cyberspace’s
communicative matrix. It finds expression in myriad forms and settings, including web site terms of use; behavioral norms of virtual chat rooms and discussion groups; network administration guidelines; listserv moderator filtering; Internet service provider contracts; Usenet voting procedures;

Comment: Yes. This democratic dream is already in existence in some forms. It is not a question of mythically creating it in this imagined internet utopia. It is more accurately a choice of how much we have, and how much is controlled by minorities. Whether those minorities be national governments, corporations, or alternative communities.

Comment: gives examples of all those things which are organically created by individuals: local area network acceptable use policies;8  frequently-asked question files; decisions of virtual magistrates;9 help manners and programmers’ manuals for multi-user dimensions;10 the code embedded in browsers, servers, and digital content;11 and the technical protocols that enable intra- and inter-network communication.

All such norms shape and delimit the possibilities for human interaction and commerce
in cyberspace. In that sense, they have much the same effect as formal state-promulgated law.12

For them, cyberspace is partly a model and partly a metaphor for a fundamental
restructuring of our political institutions. Cyberians view cyberspace as a
realm in which “bottom-up private ordering” can and, indeed, should supplant
rule by the distant, sluggish, and unresponsive bureaucratic state.14

By its very architecture and global reach, they contend, cyberspace will ultimately
elude the strictures of state-created law, challenging the efficacy
and theoretical underpinnings of the territorial sovereign state.15

Comment: Netanel has this to say about these points:

The cyberian claims of liberal perfection and community autonomy
pose an intriguing challenge to traditional liberal democratic theory. But I
believe that challenge ultimately fails. I will argue that an untrammeled
cyberspace would prove inimical to the ideals of liberal democracy and
indeed that selective state regulation of cyberspace is warranted to protect
and promote those ideals. I will also propose that in the absence of regulation
by a democratic state, cyberians would be forced to invent a quasistate
institution to legislate and enforce liberal democratic meta-norms
governing critical aspects of cyberspace organization and operation. Even
if cyberians were successfully to establish such an institution, it would, at
best, suffer from much the same democratic deficit that, according to
cyberians, characterizes nation-state representative democracy.