I used to have a (semi-crazy) uncle who typically began conversations with lame jokes or bad riddles. This sounds like one he might have used had he lived long enough: What do Thomas Jefferson, a moose, and cyberspace have in common?
The answer to that question can be found in a new book, In Search of Jefferson’s Moose: Notes on the State of Cyberspace, by David G. Post, a Professor of Law at Temple University. Post, who teaches IP and cyberspace law at Temple, is widely regarded as one of the intellectual fathers of the “Internet exceptionalist” school of thinking about cyberlaw. Basically, Post sees this place we call “cyberspace” as something truly new, unique, and potentially worthy of some special consideration, or even somewhat different ground rules than we apply in meatspace. More on that in a bit.
[Full disclosure: Post’s work was quite influential on my own thinking during the late 1990s, so much so that when I joined the Cato Institute in 2000, one of the first things I did was invite David to become an adjunct scholar with Cato. He graciously accepted and remains a Cato adjunct scholar today. Incidentally, Cato is hosting a book forum for him on February 4th that I encourage you to attend or watch online. Anyway, it’s always difficult to be perfectly objective when you know and admire someone, but I will try to do so here.]
Post’s book is essentially an extended love letter — to both cyberspace and Jefferson. Problem is, as Post even admits at the end, it’s tough to know which subject this book is suppose to teach us more about. The book loses focus at times — especially in the first 100 pages — as Post meanders between historical tidbits of Jefferson’s life and thinking and what it all means for cyberspace. But the early focus is on TJ. Thus, those who pick up the book expecting to be immediately immersed in cyber-policy discussions may be a bit disappointed at first. As a fellow Jefferson fanatic, however, I found all this history terrifically entertaining, whether it was the story of Jefferson’s Plow and his other agricultural inventions and insights, TJ’s unique interest in science (including cryptography), or that big moose of his.
OK, so what’s the deal with the moose? When TJ was serving as a minister to France in in the late 1780s, at considerable expense to himself, he had the complete skeleton, skin and horns of a massive American moose shipped to the lobby of his Paris hotel. Basically, Jefferson wanted to make a bold statement to his French hosts about this New World he came from and wake them up to the fact that some very exciting things were happening over there that they should be paying attention to. That’s one hell of way to make a statement!
Questions about Frontiers, Both Old and New
Now you see the connection to Post’s investigation into the state of cyberspace. Like Jefferson, Post is very excited about a new frontier and he wants to alert people to it. Importantly, however, Post isn’t at all ashamed to admit when he doesn’t understand why some things are the way they are in this new world. And so Post begins asking questions — lots and lots of questions — to guide our investigation.
Thus, in much the same way that Jefferson penned Notes on the State of Virginia as guidebook for newcomers to the strange new world of his time, David Post has penned this slender volume as a guidebook to our modern cyber-frontier. If you’re looking for a book with concrete positions on all of cyberspace’s pressing policy problems, this book is not it. Instead, it is meant to help us frame the issues and questions properly and consider how this new frontier is unfolding in the early years of its existence. As Post puts it:
We are at the very beginning of what will become a centuries-long conversation about these questions, and my goal here was not to put anything to rest but to put everything in play, not to conclude any part of that conversation but to help you get started. We need, more than answers to today’s questions about law and policy on the network, new ways of thinking about the questions themselves, new vocabularies, new visions of the possible, new ways of identifying and organizing what we know and what we don’t know about the new place. (p. 209)
Post does a very nice job of giving us “new ways of thinking about questions” in his book. These questions generally fall into two categories. First, Post wants to know why cyberspace works the way it does, or more profoundly, why it works at all. How did this little experiment with networking protocols turn into the most revolutionary global communications and information distribution system of modern times? Second, Post wants to know “Who makes the rules ‘there’… and what should they be? What does the law look like there? How does it get made, and by whom? Who governs? By what means, and by what right?” (p. 4)
What Jefferson (and Hamilton) Can Teach Us
Post brings Jefferson into the story in the hope that TJ’s profound thinking on the issues of his time might help us getter a better handle on the cyber-controversies of our own time. After all, Jefferson was a man who spent much of his life thinking about uncharted subjects and frontiers. And law, of course!
Using this approach to help us explore cyberspace and cyberlaw works quite well in many cases. It works particularly well when Post brings TJ’s leading intellectual nemesis into the drama — Alexander Hamilton. “Their feud the longest-running in American political history,” Post correctly notes, “for they stood on opposite shores of the great intellectual divide, a divide that encapsulates something fundamental in the way we think about society and government.” (p. 107). Jefferson desired liberty above all else; Hamilton stressed order and authority. Whereas Jefferson trusted decentralization and wanted diffuse communities making political decisions, Hamilton looked to a strong central authority to guide the nation.
Many modern cyberspace disputes, Post suggests, can be viewed through this same Jeffersonian vs. Hamiltonian philosophical dichotomy. Post continues:
Cyberspace is not the American West of 1787, of course. But like the American West of 1787, cyberspace is (or at least it has been) a Jeffersonian kind of place. Jeffersonians always predominate in new places, because new places attract people who find new places attractive and retell people who do not. […] Hamiltonians, though, inevitably make their way to Jeffersonian places (certainly once gold is discovered there!), claims of order and authority and power assert themselves, and struggles over the shape of the place begin in earnest.
And like the West of 1787, cyberspace poses some hard questions, and could use some new ideas, about governance, and law, and order, and scale. The engineers have bequeathed to us a remarkable instrument, one that has managed to solve prodigious technical problems associated with communication on a global scale. The problem is the one that Jefferson and his contemporaries faced: How do you build “republican” institutions — institutions that respect the equal worth of all individuals and their right to participate in the formation of the rules under which they live — that scale? (p. 116-117)
Will Jeffersonian or Hamiltonian thinking prevail as this process unfolds? That remains to be seen, and although Post clearly falls in the Jeffersonian camp on these issues, he doesn’t really place odds on the outcome. Moreover, I would have liked to see Post offer a more full-throated defense of cyber-Jeffersonianism and Interent exceptionalism, or at least better explain to the reader how the debate between exceptionalism and unexceptionalism — or Jeffersonianism vs. Hamiltonianism — has progressed since the mid-1990s.
I think it’s clear that the cyber-Hamiltonians (i.e., the Internet unexceptionalists) are in the midst of a major “Empire Strikes Back” moment today as cyberspace is coming under increasing political pressure from many corners, and calls for more centralized authority abound — whether we are talking about domain name regulation, net neutrality mandates, speech controls, or whatever else. I just wish Post would have spent more time developing a “Return of the Jedi” defense of cyber-Jeffersonianism in this book.
Central Planning vs. Self-Governing Communities
Incidentally, Post has put forward such a defense elsewhere. Along with my former Cato colleague Wayne Crews, I co-edited a beefy book on Net governance issues back in 2003 entitled Who Rules the Net? Internet Governance and Jurisdiction. It contained some truly wonderful essays and they are all still quite relevant today. Jonathan Zittrain’s essay on “Reconciling a Global Internet and Local Law” remains one of the best primers on the subject you can find. But the exchange about Internet governance between David Post and Jack Goldsmith in that book is really a classic Jeffersonian-Hamiltonian debate about cyberlaw. [You can read their chapters at the link above.]
In Jefferson’s Moose, Post comes closest to developing a fuller theory of Internet exceptionalism in his excellent chapter “Governing Cyberspace III: Law.” In that chapter, he takes the unexceptionalists to task for their troubling logic, which “leads inexorably to the conclusion that (just about) everything you do on the Web may be subject to (just about) everybody’s law.” (p. 167). Indeed, the unexceptionalist vision is quite a miserable one when you get right down to it; one that treats this new frontier as a plaything in an endless power struggle between competing political bodies. Meanwhile, as Post points out, the rule of law loses its meaning and becomes less about the consent of the governed and more like a game of “Jurisdictional Whack-a-Mole,” with countless “sovereigns” asserting authority and trying to beat cyberspace and digital denizens into submission in one way or another.
Because Post believes that the unexceptionalists are wrong in their assertion that the Internet is merely the “functional equivalent of mail, or telephone, or smoke signals,” he offers — but does not fully develop — an alternative framework based on Jefferson’s vision for how to settle the Western frontier: Give settlers maximum flexibility to create free, independent, self-governing communities. In Jefferson’s words, “an empire of liberty.. built not on conquest, but on principles of compact and equality.” And this empire of liberty would be, in Post’s words, “held together by consensual bonds and adherence to republican principles, not coercive power, an ever-expanding union of self-governing commonwealths joined together as peers.”
Now that is a beautiful vision for cyberspace! And, in many ways, it partially explains why cyberspace has been such a special place — at least so far in its early history. But as more and more Hamiltonians assert the need for greater “order,” all that could change. Again, I wish Post would have put some more meat on the bones of his beautiful cyber-Jeffersonian framework to counter the increasing calls we hear for more cyber-Hamiltonianism. Specifically, Post needs to better address the accusation made by the Digital Age Hamiltonians that Internet exceptionalism is little more than cyber-anarchism. In reality, Internet exceptionalism is essentially something akin to decentralized federalism for the Internet; a federalism that the Founders — or at least Jefferson — would have likely strongly supported. As I wrote here recently, I like to think of Internet exceptionalism as a variation on Robert Nozick’s “utopia of utopias” vision of an ideal society: “a place where people are at liberty to join together voluntarily to pursue and attempt to realize their own vision of the good life in the ideal community but where no one can impose his own utopian vision upon others.” (Nozick, 1974)
Post begins a sketch of that Nozickian vision for cyberspace in Jefferson’s Moose, but he doesn’t really finish painting his masterpiece. To be fair, however, Post did make it clear right from the start of the book that it was going to be about asking the right questions, not necessarily providing all the answers.
Two Big Issues, Both Then and Now
Incidentally, using Jefferson as a guide to understanding modern cyberlaw controversies also works well when it comes to “the two issues [that] have been featured in virtually all of the Internet’s Big Cases” — free speech and intellectual property. As Post reminds us, Jefferson had a bit to say about those issues during his own lifetime.
“Jefferson was America’s first, and probably its greatest, First Amendment absolutist” Post says, (p. 188), because Jefferson viewed free speech as part of a greater “interconnected whole”:
republican self-government, freedom of speech, freedom of conscience, and freedom of speech. You couldn’t have any without the others; they were inextricably bound together into a single system, and they would stand, or fall, together. (p. 189-190)
To a Jeffersonian, then, free speech questions are always simultaneously (a) of supreme importance and (b) pretty easy. The answer to free speech questions is always (or almost always) simple: The more protection for, and the fewer the restrictions on, speech, the better. (p. 194)
And Jefferson held true to that principle throughout his life, most notably with his strenuous opposition to the horrendous Sedition Act of 1798.
But intellectual property is a far thornier issue — for both Jefferson and modern cyberlaw. Jefferson was a great inventor himself and keenly interested in the topic. But he also saw IP rights in a different light than speech rights. Post explains Jefferson’s position:
Unlike free speech rights, intellectual property… cannot, in nature, be a subject of property; they do derive from the “social law,” from the laws of England, or Virginia, or whatever; they’re not antecedent to the law, but entirely dependent on it. That doesn’t mean we shouldn’t have intellectual property rights. It only means that we get to decide (and we have to decide) whether to have them or not, and how much of them to have. (p. 198)
Intellectual property law in a Jeffersonian world, then, is always a matter of degree, of finding that balance, of drawing the line… Protection for intellectual property shouldn’t be too weak (or it won’t give creators enough of an incentive to create) or too strong (or it will choke off future creativity), but just right. We’ll never get it exactly right, but it is what we are always aiming for — in a Jeffersonian world, at least. (p. 201)
Of course, finding that “balance” is easier said than done and efforts to strike it engender even more controversy today in the digital world than they did during Jefferson’s time.
David Post has given us an enlightening map to help us navigate the new frontier of cyberspace and cyberlaw. I’m confident Jefferson’s Moose will be on my next end-of-year list of important tech policy books. And I hope my handful of small nitpicks here about the lack of details or answers regarding Post’s beautiful Jeffersonian vision for cyberspace will inspire him to pen yet another book on the subject! We need more friends of true cyber-freedom like David Post.
P.S. David Post is also the co-author of an outstanding treatise on cyberlaw with Patricia L. Bellia and Paul Schiff Berman: Cyberlaw: Problems of Policy and Jurisprudence in the Information Age. The text sits on top of my desk at all times, never far from reach when I need to a quick refresher on some arcane aspect of early Internet jurisprudence. A highly recommended resource.