Reinterpreting Cyberlibertarianism in Light of Its Failures
In the mid-1990s, cyberlibertarianism was all the rage. Thousands of new Netizens, modems squealing, were being born every day. Web 1.0 captured their imaginations. It was like nothing else they had ever experienced.
The early Internet was not only different, it was exceptional. None of the old rules applied. The rules of space broke down. You could email someone around the world as easily as you could your next door neighbor. The Internet was borderless. There were no territories or jurisdictions or enforceable laws. Governments were powerless online.
John Perry Barlow took it upon himself to declare independence:
Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather.
We have no elected government, nor are we likely to have one, so I address you with no greater authority than that with which liberty itself always speaks. I declare the global social space we are building to be naturally independent of the tyrannies you seek to impose on us. You have no moral right to rule us nor do you possess any methods of enforcement we have true reason to fear.
The plot of Neal Stephenson’s 1999 novel Cryptonomicon involved a scheme to create a data haven, a physical place where data could be stored and served unmolested by the state. On a flat Internet, this would amount to legalizing all data everywhere — and to turning subpoenas into unenforceable requests.
In 2000, some entrepreneurs tried to make the idea of a data haven a reality. HavenCo was based on a World War II-era steel and concrete platform situated six miles off the English coast, known somewhat pretentiously as the “Principality of Sealand.”
As James Grimmelmann documents in his 2012 article on HavenCo, the ambitious plan, which involved multiple redundant Internet connections and a nitrogen-flooded data center, failed miserably. There was no intervention by the Royal Navy. HavenCo collapsed from within, due to, among other things, squabbles between the company and the (then-) “Prince Regent,” Michael Bates.
HavenCo failed because of its confused relation to the rule of law: it undermined national laws, while expecting the protection of international law under Sealand’s dubious claim of sovereignty, while relying on “Sealand law” that Sealand was not in a position to enforce. “Legal systems are like Soylent Green,” says Grimmelmann. “They’re made out of people.” It turns out that if you want to set up a data haven, there’s not really a good substitute for having a real government with an actual army, a credible legal system, and popular support on your side.
So much for a flat Internet where geography is meaningless. The case for Internet exceptionalism has also been undermined by the relative success of Internet censorship in China. The cyberlibertarian dream of a world where the Internet makes politics irrelevant seems to be on life support.
Nevertheless, it may be possible to resuscitate cyberlibertarianism by reinterpreting it. Whereas cyberlibertarians have always thought in terms of small people versus big government, it may be more fruitful to think in terms of small powers versus great powers.
Long before the Snowden affair, and before any of us had ever heard of WikiLeaks, Julian Assange wrote an important essay equating authoritarian government with conspiracy. Authoritarian governments are conspiratorial because if they did not act in secret, they would generate more opposition. And leaks, it turns out, make it harder for members of a conspiracy to operate.
The Snowden leaks are instructive for a couple of reasons. First, there is good evidence that they have made it harder for the United States intelligence apparatus to function. Congress may limit contractor access to highly classified material, and the NSA has implemented a buddy system for accessing sensitive documents.
But more importantly, Snowden’s revelations have underscored the value to the international community of leaks against the global hegemon. If Americans don’t want to be spied on by their own governments, still less do the Brazilian and German governments, to say nothing of the Russians and Chinese, want to be spied on by the US. It is in their interest to facilitate further leaks against the American intelligence conspiracy, both because they make it harder for the conspiracy to operate and because Americans may at some point exercise democratic oversight.
American hegemony creates foreign demand for protection of American leakers. The Internet enables leaked information to be disseminated widely, raising the cost of widening the US intelligence conspiracy. It changes the equilibrium both with respect to conspiracy against Americans and to conspiracy against the world.
To the extent that foreign protection of American (and other) leakers becomes institutionalized, we will have a data haven. While there are tradeoffs to implementing strong data privacy rules — governments that decide to support such rules must themselves have little to hide — it seems probable that at least some states will eventually find it in their interest to protect such speech.
We would expect that such a movement would be furthest along in countries with relatively well-behaved governments with little appetite for foreign adventurism — countries with the least conspiratorial governments. And indeed, it seems that of all countries, Iceland is furthest along in supporting very strong free speech and media protections. The Iceland-based International Modern Media Institute has had some success in advancing media reforms that could create a “Switzerland of bits.”
Whereas the old cyberlibertarian view says that geography and territory are irrelevant, the new one acknowledges that international politics is more important than ever before. We need — and have better-than-even odds of getting — at least one real jurisdiction, with actual laws and an army, that has a strong interest in free speech. The Internet amplifies the power of the political decision to protect speech, but it doesn’t make the decision irrelevant.
