Law and Order in Cyberspace

WHO CONTROLS THE INTERNET? Illusions of a Borderless World.

By Jack Goldsmith and Tim Wu. Oxford Univ. Press. 272 pp. $28

When the internet began to reveal its promise in the mid-1990s, utopian rhetoric was the order of the day. At the 1996 World Economic Forum, in Davos, Switzerland, John Perry Barlow, a Grateful Dead songwriter and cofounder of the Electronic Frontier Foundation, an Internet civil liberties group, issued a “Declaration of the Indepen­dence of Cyberspace” to governments. It read in part, “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. . . . Cyberspace does not lie within your borders.”

That cyberspace has not ended up independent of national sovereignty is apparent to all of us. Consumer fraud occurs but is prosecuted by attorneys general; obscenity, though available, is generally illegal; and businesses make contracts online that sometimes are broken and get adjudicated by the same courts that enforce offline contracts. In the face of this inexorable civilization (Barlow called it colonization) of cyberspace, Jack Goldsmith and Tim Wu, professors at Columbia and Harvard law schools respectively, seek to convince us that despite the hopes of the early digerati, or Internet enthusiasts, the medium’s users have properly recognized its subservience to national law. The authors argue that the very openness of the unregulated space that is the Internet demands borders and national laws, in contrast to the independence sought by Barlow (for whom I worked at the Electronic Frontier Foundation from 1991 to 1994).

Consider what happened when the French government tried to stop Yahoo from offering Nazi memorabilia for sale. Sale of such material is legal in the United States, where Yahoo is based, but illegal in France, where Yahoo does some business. French courts claimed authority to enforce their law. U.S. courts considered whether such control over a U.S. company infringes upon American sovereignty or violates the First Amendment. But in 2000, the French courts prevailed: Yahoo now blocks access to such sales from French websites.

Similar conflicts abound. In libel law, the United States favors free expression, while other countries offer more protection to those harmed by sloppy reporting. Pornography is subject to controls in the United States but not in Europe; hate speech is outlawed in Europe but not in the United States. The authors cite these differences as evidence that we will have to accept national sovereignty, even where it may make us uncomfortable.

No argument there. Yet Goldsmith and Wu are so busy correcting the romantic technological determinism of the digerati that they fall into a sort of legalistic determinism. Having established that nations should have some role on the Internet, and that borders do have some value, they swing us alarmingly from the anarchy of Barlow’s cyberspace to a realpolitik that places national sovereignty above all other moral and political values. After a vividly documented chapter on the challenges that Chinese censorship and political repression pose to the Internet, our law professors tell us that on the bordered Internet “there is no legitimate basis for giving any single law a kind of global constitutional status.” So the Chinese laws must be given effect online along with all other national laws. Are Goldsmith and Wu so convinced of the legitimacy of state power that they are prepared to toss out international norms of human rights?

As the international community (governments as well as leading companies such as Google, Microsoft, and Yahoo) wrestles with the response to Chinese demands for censorship of political speech, what theory we adopt about the relationship between the Web and national law is far more than just a theoretical matter. The authors present us with a false dilemma in opposing to Barlow’s utopian anarchy a state-dominated, bordered Internet. It would be worse than ironic if the spread of a speech-enhancing medium caused us to turn our collective back on the centuries-old project of expanding the right of individual expression.

—Daniel J. Weitzner