Cyber-Libertarianism: The Case for Real Internet Freedom

by Adam Thierer on August 12, 2009 · Comments

libertyby Adam Thierer & Berin Szoka — (Ver. 1.0 — Summer 2009)

We are attempting to articulate the core principles of cyber-libertarianism to provide the public and policymakers with a better understanding of this alternative vision for ordering the affairs of cyberspace. We invite comments and suggestions regarding how we should refine and build-out this outline. We hope this outline serves as the foundation of a book we eventually want to pen defending what we regard as “Real Internet Freedom.” [Note:  Here's a printer-friendly version, which we also have embedded down below as a Scribd document.]

I. What is Cyber-Libertarianism?

Cyber-libertarianism refers to the belief that individuals—acting in whatever capacity they choose (as citizens, consumers, companies, or collectives)—should be at liberty to pursue their own tastes and interests online.

Generally speaking, the cyber-libertarian’s motto is “Live & Let Live” and “Hands Off the Internet!”  The cyber-libertarian aims to minimize the scope of state coercion in solving social and economic problems and looks instead to voluntary solutions and mutual consent-based arrangements.

Cyber-libertarians believe true “Internet freedom” is freedom from state action; not freedom for the State to reorder our affairs to supposedly make certain people or groups better off or to improve some amorphous “public interest”—an all-to convenient facade behind which unaccountable elites can impose their will on the rest of us.

B.  Application in Social & Economic Contexts

The cyber-libertarian draws no distinction between social and economic freedom when applying this vision:

  • Social Freedom: Individuals should be granted liberty of conscience, thought, opinion, speech, and expression in online environments.
  • Economic Freedom: Individuals should be granted liberty of contract, innovation, and exchange in online environments.

Cyber-libertarians also argue that social and economic freedoms are inextricably intertwined:  It is not enough to support liberty of action in one sphere; foreclosing freedom in one sphere will eventually affect freedom in the other.

C.  How “Code Failures” Are to Be Addressed

The cyber-libertarian believes that “code failures” (the digital equivalent of so-called “market failures”) are better addressed by voluntary, spontaneous, bottom-up, marketplace responses than by coerced, top-down, governmental solutions.   From a practical perspective, the decisive advantage of the market-driven approach to correcting code failure comes down to the rapidity and nimbleness of those responses.  Stated differently, cyber-libertarians have a strong aversion to the politicization of technology issues and efforts to replace market processes with bureaucratic processes.

Importantly, the cyber-libertarian defines “markets” broadly to include monetary and non-monetary transactions as well as proprietary and non-proprietary modes of production.  To be clear, collaborative, non-proprietary technologies and efforts (e.g., Wikipedia and open source software) are not at odds with cyber-libertarianism.  But the cyber-libertarian does reject the notion these models are the only acceptable model or that they should be imposed on us by law.  The proper policy position with regards to the “open vs. closed” or “proprietary vs. non-proprietary” debate should be one of techno-agnosticism.  Lawmakers and courts should not be tilting the balance in one direction or the other.

More generally speaking, instead of seeking to define or impose a single utopian vision, the cyber-libertarian seeks to enable what libertarian philosopher Robert Nozick called a “Utopia of Utopias:” a framework within which many different models of organizing commerce and community can flourish alongside, and in competition with, each other.

D.  General Relationship to “Internet Exceptionalism”

Internet exceptionalists are first cousins to cyber-libertarians:  They believe that the Internet has changed culture and history profoundly and is deserving of special care before governments intervene.  [See Section IV for an expanded discussion.]

II. The Intellectual Foundations of Cyber-Libertarianism

A.  Traditional Libertarian Philosophy

B.  Modern Cyber-Libertarian Theorists

C.  Internet Exceptionalists[see Sec.  IV below]


III. The Contrast with Cyber-Collectivism

A.  Cyber-Collectivism Defined

Cyber-collectivism is the opposite of cyber-libertarianism.  Cyber-collectivism refers to the general belief that cyber-choices should be guided by the State or an elite class according to some amorphous “general will” or “public interest.”  The distant influence of Plato, Rousseau, and Marx can often been seen in the work of cyber-collectivists.

Cyber-collectivism comes in many flavors, however.  “Left”-leaning cyber-collectivists, for example, are more focused on social concerns than economic ones.  Some “Right”-leaning cyber-collectivists are focused on controlling the impact of the Internet on culture or security.  In other words, cyber-collectivism is not as philosophically coherent as cyber-libertarianism—which, though it comes in many flavors, shares a larger core of common agreement

B.  General Relationship to “Information Commons” Movement

There is a close relationship between the Leftist variant of cyber-collectivism and the “digital commons” or “information commons” movement, which generally refers to the belief that digital resources should be shared or perhaps commonly owned instead of held privately—both because cyber-collectivists think this is more equitable and because they generally think such arrangements will ultimately work better.

Cyber-collectivists are typically not Marxists; few of them call for state ownership of the information means of production.  Rather, cyber-collectivists might better be thought of a “cyber social Democrats” (in a European sense) or “Digital New Dealers” (in the American tradition).  They advocate a generous role for law and regulation in many online matters, but do not typically resort to full-blown nationalization.

C. Exponents of Cyber-Collectivism

Some notable cyber-collectivists or information commons adherents (and their key works):

(*We are, of course, generalizing a bit here. Not everyone in these institutions is a cyber-collectivist and, again, there are many flavors of cyber-collectivism, just as there are many flavors of cyber-libertarianism. Individuals in some of these organizations diverge significantly in attitudes towards technological change and the proper scope of government influence throughout the high-tech sector.)

IV. Relationship Between Cyber-Libertarianism & Internet Exceptionalism

Some non-libertarians occasionally join ranks with cyber-libertarians out of a belief that the Internet is different and deserving of special consideration and care. This is commonly referred to as “Cyber-Exceptionalism” or “Internet Exceptionalism.” John Perry Barlow’s 1996 “Declaration of the Independence of Cyberspace” was probably the earliest (and most extreme) articulation of “Internet Exceptionalism”:

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.

Governments derive their just powers from the consent of the governed. You have neither solicited nor received ours. We did not invite you. You do not know us, nor do you know our world. Cyberspace does not lie within your borders. Do not think that you can build it, as though it were a public construction project. You cannot. It is an act of nature and it grows itself through our collective actions.

You have not engaged in our great and gathering conversation, nor did you create the wealth of our marketplaces. You do not know our culture, our ethics, or the unwritten codes that already provide our society more order than could be obtained by any of your impositions.

You claim there are problems among us that you need to solve. You use this claim as an excuse to invade our precincts. Many of these problems don’t exist. Where there are real conflicts, where there are wrongs, we will identify them and address them by our means. We are forming our own Social Contract. This governance will arise according to the conditions of our world, not yours. Our world is different.

Similarly, in 1994, The Progress & Freedom Foundation brought together four leading technology visionaries (Esther Dyson, George Gilder, George Keyworth, and Alvin Toffler) to pen A Magna Carta for the Knowledge Age. In that manifesto, the authors argued:

Cyberspace is the land of knowledge, and the exploration of that land can be a civilization’s truest, highest calling. The opportunity is now before us to empower every person to pursue that calling in his or her own way.

The challenge is as daunting as the opportunity is great. The Third Wave has profound implications for the nature and meaning of property, of the marketplace, of community and of individual freedom. As it emerges, it shapes new codes of behavior that move each organism and institution—family, neighborhood, church group, company, government, nation—inexorably beyond standardization and centralization, as well as beyond the materialist’s obsession with energy, money and control.

Turning the economics of mass-production inside out, new information technologies are driving the financial costs of diversity—both product and personal—down toward zero, “demassifying” our institutions and our culture. Accelerating demassification creates the potential for vastly increased human freedom.

It also spells the death of the central institutional paradigm of modern life, the bureaucratic organization. (Governments, including the American government, are the last great redoubt of bureaucratic power on the face of the planet, and for them the coming change will be profound and probably traumatic.)

As that last paragraph suggests, this “Magna Carta” for cyberspace contained some hints of cyber-libertarian thinking, but the general thrust of the document was more generally of the Internet Exceptionalist school of thought.

Internet Exceptionalists are sometime critiqued for sounding like techno-utopians, but it is a mistake to conflate the two. There are not always synonymous.

V. Cyber-Libertarianism’s Early Legal Foundations & Victories

VI. Applications: How Cyber-Libertarians Think about Various Policy Issues

  • Free speech & online child safety: Favor parental empowerment and industry self-regulation over censorship. “Household standards” should trump “community standards.”
  • Privacy policy & online advertising: Privacy is a subjective condition and efforts to regulate to “protect privacy” could have unintended consequences for freedom of speech and the growth of online content and commerce. User empowerment and industry self-regulation represent the superior way to address privacy concerns.
  • Net neutrality / infrastructure regulation: “Open access” regulation is nothing more the infrastructure socialism. Network operators should be free to own, operate, and price their systems and services as they see fit, subject only to enforcement of their terms of service and other voluntary disclosures as contracts with their users. New entry and innovation are better alternative to regulating yesterday’s networks and technologies.
  • Internet taxation: No special taxes should be imposed on online services or Internet access. To the extent the Net disrupts traditional tax bases that should be seen as an opportunity to reform those tax systems.
  • Online gambling: People should be free to do what they want with their money and Internet gambling is likely impossible to shut down entirely anyway, given the nature of the Internet.
  • Antitrust: “Market power” and “code failures” are best dealt with by spontaneous evolution of markets and new entry, not bureaucratic micro-management of old technologies or market structures. Regulation often creates, or tends to foster, most monopolies. As Ithiel de Sola Pool once noted, “The force that preserves most monopoly privilege is law… most would vanish in the absence of enforcement.”
  • IP issues: Cyber-libertarians are deeply divided over IP issues (especially copyright) and this reflects a long-standing division within libertarian ranks on these issues more generally. Some believe IP rights are a natural extension of traditional property rights and/or a sensible way to incentivize scientific and artistic creativity. Others believe no one has a right to “property-tize” intangible creations or that copyright is simply industrial protectionism. And there are many views in between.

VII. Prospects for Cyber-Libertarianism

A. The Pessimistic View

  • Government’s will quash online freedom and bring the Internet under their thumbs.
  • Regulatory efforts are expanding at a breathtaking pace and will not slow anytime soon.

B. The Optimistic View

  • “Technologies of Freedom” (tools and methods to avoid online regulation, censorship and control) will ultimately triumph.
  • Technology is evolving faster than government’s ability to regulate it.

VIII. Related Reading on Cyber-Libertarianism & Internet Exceptionalism

_____________________

Cyber-Libertarianism: The Case for Real Internet Freedom [Ver 1.0 - Thierer & Szoka]

Tagged as: advertising, antitrust, Austrian School, Barlow, Bell, Benkler, Berkman, CDA, child safety, Clipper Chip, code, collectivism, commons, content, contract, COPA, cyber-libertarian, cyber-libertarianism, cyberlibertarian, cyberlibertarianism, declaration of independence, digital, Dyson, economics, encryption, Epstein, exceptionalism, First Amendment, free speech, freedom, Friedman, Gilder, Goldman, Harvard, Hayek, Holland, Huber, immunity, Information Age, infrastructure, intermediary, Internet, internet exceptionalist, jurisprudence, keyworth, law, Lessig, libertarian, libertarianism, Locke, Magna Carta, Marx, Mill, Mises, net neutrality, Nozick, online, Plato, Pool, Privacy, property rights, Rand, regulation, rights, Rousseau, section 230, Sowell, speech, tax, taxation, technology, technology liberation front, Third Wave, Toffler, utilitarian, worldviews

Comments Posted in: Advertising & Marketing, Antitrust & Competition Policy, Broadband & Neutrality Regulation, Digital Policy Reading List, E-Commerce Taxation & Regulation, First Amendment, Free Speech & Online Child Safety, Innovation & Entrepreneurship, Intermediary Deputization & Section 230, Philosophy & Cyber-Libertarianism, Privacy, Security & Government Surveillance, Telecom & Cable Regulation, What We're Reading, Wireless & Spectrum Policy

  • Adam & Berin- I like the general thrust of your effort here. I'm not sure, though, that support for an information commons is incompatible with libertarianism (cyber or otherwise). Maybe it's just a semantic problem, but to me the commons includes works that fall into the public domain or that are otherwise dedicated to the public domain (e.g. via Creative Commons licenses). It's important for cultural and technical innovation that this commons is kept healthy. Copyright term extensions and laws like the DMCA shrink that commons. I don't see anything unlibertarian or collectivist about defending the commons against those types of attacks.
  • Jerry, to some extent, I think we address this concern in Section I.C. when we say:

    Importantly, the cyber-libertarian defines “markets” broadly to include monetary and non-monetary transactions as well as proprietary and non-proprietary modes of production. To be clear, collaborative, non-proprietary technologies and efforts (e.g., Wikipedia and open source software) are not at odds with cyber-libertarianism. But the cyber-libertarian does reject the notion these models are the only acceptable model or that they should be imposed on us by law. The proper policy position with regards to the “open vs. closed” or “proprietary vs. non-proprietary” debate should be one of techno-agnosticism. Lawmakers and courts should not be tilting the balance in one direction or the other.


    Of course, there are differing definitions of "digital commons" and the particular application of that term in the copyright context makes it a more complicated debate. But the digital commons movement as we define it here is much broader than just a copyright movement. That's clearly a big part of "the commons movement" today, but that movement also makes it clear they wish to minimize the role of property rights and monetary transaction in many other contexts, and often by force of law. Think the spectrum battles you have been involved in, of the net neutrality wars. Or media ownership policies.
  • Well, I do think what we have here is a semantic disagreement, which hopefully means it's easy to resolve.

    The reason a spectrum commons, for example, is a problematic concept is that spectrum is a scarce resource (no matter how much technology we throw at it) and so it's not infinitely shareable. The same cannot be said about information, however. For all the reasons Tim cites, the playing field has been tilted heavily in favor of excessive IP protection, and thus against a vibrant commons. As a result I for one cannot be techno-agnostic on the issue.

    That all said, you're right that some proponents of a stronger information commons make the semantic leap and apply the commons language to scarce and rivalrous resources like spectrum and networks. That's a mistake. But I think it might also be a mistake to talk about an all-encompassing "commons movement" that includes the information commons. Lets carve that one out. It's a perfect opportunity to demonstrate to our friends on the left that if markets and government non-intervention in that sphere is good thing, it might work elsewhere, too.
  • Adam, I certainly agree in principle with the idea that "lawmakers and courts should not be tilting the balance in one direction or the other." But I don't understand how that's a critique of Lessig et al. The history of copyright law over the last 40 years has been a history of Congress repeatedly tilting the balance away from an information commons in favor of proprietary means of cultural production. The 1976 term extension and removal of formalities, the AHRA's regulations of digital media devices, the 1992 elimination of renewal requirements, the 1998 term extension, the DMCA, and various (thankfully unsuccessful) efforts to mandate the "broadcast flag" and remove the "analog hole" have all been examples of lobbyists trying to increase the role of the legal system in the production of culture, and tilt the balance away from free culture and toward proprietary means of cultural development. From where I sit, the free culture movement is largely devoted to restoring some of the balance that existed in earlier copyright acts.

    Now, obviously many free culture types are left-wingers who want to see greater government regulation in lots of other areas. And some of them make arguments that equate these two. But that doesn't mean it's a good idea to lump them together yourself. There are lots of people who are sympathetic to libertarian ideas and who also like free software, Wkipedia, open access to science, etc. All putting "Free Culture" and "Viral Spiral" on your list of "cyber-collectivist" books is going to accomplish is to make them think that that they must be cyber-collectivists since they agree with Lessig about copyright law. That doesn't seem like a good idea.
  • Guys,

    I wonder if you're painting with too broad a brush when you talk about "cyber collectivism." This is especially evident in your list of cyber-collectivists and their works. For example, Tim Wu certainly has some views you could describe as "cyber-collectivist," but the particular work you cite, "Who Controls the Internet" is about protecting the Internet from government censorship--obviously in the cyber-libertarian camp.

    Likewise, nothing Lessig says in "Free Culture" could be plausibly described as "cyber-collectivism." Whether you agree with his argument or not, it's plainly about reducing, not increasing, the government's role in the production of culture.

    As far as the Berkman Center goes, they're a pretty large organization without an official ideology. There are certainly some people there pushing "cyber-collectivist" policy agendas, but they're also doing a ton of important work in other areas, many of which are better described as "cyber-libertarian." They employ people like Ethan Zuckerman who focus on using the Internet to resist government oppression overseas.

    Finally, you mention in passing that there are cyber-collectivists on the right, but you don't mention any of them. What about the right-wingers who want more government regulations to keep smut off the Internet? Adam, those are the people you spend a lot of your time critiquing, so shouldn't they be on the list?

    I wonder if it wouldn't make more sense to focus on specific arguments made by specific individuals, rather than trying to pigeon-hole every non-libertarian into one giant opposing ideology.
  • Thanks for your thoughts, Tim. Again, this is just a first cut and we will work to refine it with helpful suggestions like yours. A couple of thoughts, however, about what you had to say...

    I understand what you are saying when you note that, "there are cyber-collectivists on the right, but you don't mention any of them." First, however, we do at least point out that "Some 'Right'-leaning cyber-collectivists are focused on controlling the impact of the Internet on culture or security." But the reason we do not cite specific people is because there are very few scholars we can point to as having articulated this vision as part of a broader, coherent worldview. There are plenty of cyber-conservatives who have written in favor of greater intervention to curb objectionable content, and many others who favor increased gov't regulation of the Net for national security purposes, etc., but I can't really name any one thinker who brings it all together in a unified way. If you can, please tell us. But I don't think there really is a coherent "cyber-conservative" movement out there the same way we see a rising "Digital Commons" movement. Nonetheless, you are right to point out that we need to do more to highlight those individuals on the Right who espouse such cyber-collectivist views.

    Now, regarding your point about Goldsmith & Wu's "Who Controls the Internet"... sorry, but I have a very different reading of that book. It's practically a celebration of "the death of the dream of self-governing cyber-communities" as they say on pg. 1. The point of the book is absolutely not "about protecting the Internet from government censorship" as you suggest. Quite the contrary, in fact: It's an apology for strong state control of the Net. "[T]he geographically bordered Internet has many underappreciated virtues," they argue. They glorify "a bordered Internet" and "the power of places--nations and regions--to protect the way they are, or want to be." This is the very antithesis of "cyber-exceptionalism" and it's what Prof. Goldsmith has spent a great deal of time wrangling with cyber-libertarian David Post about. (See Cato's 2004 book, "Who Rules the Net" for an excellent exchange between them on these issues.) One final thing I just have to add... Tim Wu is now chairman of the Free Press, an organization that is squarely cyber-collectivist in orientation (some might even say it espouses cyber-Marxism). I think that settles where Prof. Wu belongs on the spectrum we have outlined above.

    Finally, regarding your concern about the grouping of Berkman Center in the cyber-collectivist camp... Did you happen to notice the little asterisk next to their name? Here's what followed below it: (*We are, of course, generalizing a bit here. Not everyone in these institutions is a cyber-collectivist and, again, there are many flavors of cyber-collectivism, just as there are many flavors of cyber-libertarianism. Individuals in some of these organizations diverge significantly in attitudes towards technological change and the proper scope of government influence throughout the high-tech sector.) Nonetheless, with Lessig, Benkler, & Zittrain all residing there, Berkman is practically a shrine to cyber-collectivism. That does not mean I disagree with these guys on everything. (Matter of fact, I have done some work with some Berkman folks on online free speech & child safety issues). But that doesn't take away from the fact that many of them there espouse a very clear worldview that I think can fairly be labeled cyber-collectivist.
  • Thanks, Tim. Again, this is v 1.0 of work we expect to revise substantially in the future. The sections you refer to are in outline form and therefore particularly "rough." As for your comment about pointing out the hypocrisy of some conservatives who want to regulate the 'Net, see our recent piece about What Unites Advocates of Speech Controls & Privacy Regulation?, where we note:

    What is particularly interesting about all this is the way these two issues expose a sort of intellectual schizophrenia at work on both the Left and Right of the political spectrum. Left-leaning policymakers and intellectuals typically decry censorship efforts (except where “commercial speech,” “hate speech” and “bias” are at issue), but are quick to rally around proposals to layer privacy regulations on the Internet. The opposite is often true of many on the Right of the political spectrum: They typically declare privacy regulations to be paternalistic and antithetical to free enterprise (or perhaps just erosive of efforts to legislate morality), but in the next breath advocate controls on content they find objectionable.

    Few on either side stop to consider the relationship between speech and privacy. In fact, they are but two sides of the same coin. After all, what is your “right to privacy” but a right to stop me from observing you and speaking about you? “Protecting privacy,” therefore, typically means restricting speech rights in the process. Advocates of privacy regulation often insist that the use, processing and collection of information are “conduct” unprotected by the First Amendment, but in fact, the First Amendment broadly protects the gathering and distribution of information as part of the process of communication (“speech”). Similarly, attempts to “clean up” speech or “protect The Children,” often require regulations that would betray the privacy of adults by expanding the role of government, and impose serious burdens on businesses and markets—such as age verification mandates or extensive data retention requirements.
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