2009 was not as big of a year for Internet and information technology (“info-tech”) policy books as 2008 was, but there were still some notable titles released that offered interesting perspectives about the future of the Net and the impact the Digital Revolution is having on our lives, culture, and economy.  So, like last year, I figured I would throw together my list of the 10 most important info-tech policy books of the year.

First, let me repeat a few of the same caveats and disclaimers that I set forth last year.  What qualifies as an “important” info-tech policy book? Simply put, it’s a title that many people are currently discussing and that we will likely be referencing for many years to come.  However, I want to be clear that merely because a book appears on my list it does not necessarily mean I agree with everything said in it. In fact, as was the case in previous years, I found much with which to disagree in my picks for the most important books of 2009 and I find that the cyber-libertarianism I subscribe to has very few fans out there.

Another caveat: Narrowly-focused titles lose a few points on my list. For example, if a book deals mostly with privacy issues, copyright law, or antitrust policy, it does not exactly qualify as the same sort of “tech policy book” as other titles found on this list since it is a narrow exploration of just one set of issues with a bearing on technology policy.

With those caveats in mind, here are my choices for the Most Important Info-Tech Policy Books of 2009.

(1) Chris Anderson – Free: The Future of a Radical Price

Chris Anderson’s 2006 book The Long Tail will be remembered as one of the most influential tech policy books of the decade.  It changed the way we talk about the digital marketplace and it instantly garnered a huge audience outside of the nerdy world of Internet policy.  While Free: The Future of a Radical Price will forever live in the shadow of The Long Tail, it too is an important book and in many ways it is a much better one.

In The Long Tail, Anderson tried too hard to invent the latest business theory du jour, and in doing so he went much too far in proclaiming that, as the subtitle of the book argued, “the future of the business is selling less of more.”  That’s just not true. While there’s certainly a lot more action in the long tail than ever before since it is so much more accessible, that does not mean the entire future of business lies in “selling less of more.”  To the contrary, the fat head of the tail is just as profitable as ever.

Free certainly contains some of the flamboyance on display in The Long Tail, but Anderson has matured as a writer and is now far more willing to point out the limitations of his theories in a business sense.  He does a splendid job in Free of creating a taxonomy of free-oriented business models to guide discussions about these issues.  And he explains how “free” can be part of many different business models and strategies. His historical treatment of the issues is outstanding and includes many entertaining examples of how these “free” strategies have been used over time to offer innovative new goods and services.

The reason his book is important for Internet policy discussions is obvious: “free” is increasingly viewed as a threat to many existing companies, industry sectors, and traditional media business models.  For example, battles about the future of journalism and search engine indexing of news sites are obviously tied up with battles over “free.”  And, it goes without saying that the traditional entertainment industry business models are increasingly challenged by “free” as many struggle to adapt to the new realities of the online world, in which “free” (primarily advertising-supported  and “freemium” models) seems to be the only model with any legs.

Much like my top pick for 2008 book of the year, Jonathan Zittrain’s The Future of the Net and How to Stop It, Chris Anderson’s Free is the most important information technology book of the year because it is the one we will still be talking about the most a decade from now.  However, unlike Zittrain’s book and thesis, which I think will be largely discredited in another ten years, Anderson’s book will likely be viewed as an important and lasting contribution to the field.

(2) Larry Downes – The Laws of Disruption: Chaos and Control in Your Virtual Future

The Laws of Disruption is the closest thing you will find to a genuine cyber-libertarian manifesto these days.  But Downes isn’t a rigid ideologue; his skepticism of government regulation of the high-tech economy is based more on practical considerations and the fundamental “law of disruption”: “technology changes exponentially, but social, economic, and legal systems change incrementally.” Downes says this law is “a simple but unavoidable principle of modern life” and that it will have profound implications for the way businesses, government, and culture evolve going forward. “As the gap between the old world and the new gets wider,” he argues, “conflicts between social, economic, political, and legal systems” will intensify and “nothing can stop the chaos that will follow.” In this sense, The Laws of Disruption reads like an addendum to one of Alvin Toffler’s old books on technology and futurism in that Downes is essentially walking us through the practical consequences of life in a “post-industrial society.”

In terms of what it all means for public policy, Downes doesn’t so much fear legal and regulatory over-reach the way many cyber-libertarians do. Rather, he thinks most regulatory schemes just won’t work. In essence, he is a technological fatalist or consequentialist: Progress happens whether we like it or not, so get used to it!  Thus, the “laws of disruption” he articulates serve primarily as “Just-Don’t-Bother” warnings to over-eager government meddlers. “The best way to regulate innovation is to leave it alone,” he counsels.

In terms of structure, The Laws of Disruption resembles Blown to Bits: Your Life, Liberty, and Happiness After the Digital Explosion by Abelson, Ledeen, and Lewis, (which I reviewed here last year and named to my 2008 list). Both books survey a vast swath of territory — privacy, copyright, security, etc — and each chapter offers unique perspectives on each debate. In that sense, the book is useful to readers if for no other reason than you get a taste for how a wide variety of issues are playing out. Downes also owes much to Clayton M. Christensen and his seminal 1997 book The Innovator’s Dilemma: When New Technologies Cause Great Firms to Fail. Like that book, The Laws of Disruption is a business book with a strong policy hook.  That is, both books focus on advice-dishing for companies and innovators looking to “stay ahead of the curve” in the midst of relentless, gut-wrenching technological change, but the books also include important lessons regarding the public policies that should govern high-tech sectors.

I highly recommended The Laws of Disruption and found it to be the most enjoyable of all the books I read this year.

(3) Dawn C. Nunziato – Virtual Freedom: Net Neutrality and Free Speech in the Internet Age

Dawn Nunziato is the perfect foil for Larry Downes. Her book is a manifesto for cyber-collectivism and “media access theory.”  (For those unfamiliar with media access theory, see my old essay: “Your Soapbox is My Soapbox! Thoughts on the Media Access Movement in General and the Media & Democracy Coalition’s ‘Bill of Media Rights’ in Particular.”)  She attempts to bring media access theory up to date by taking the ideas made famous by Jerome Barron, Owen Fiss, Cass Sunstein, and others, and applying them to the Internet and digital technologies.  Like those earlier legal thinkers, she argues for “an affirmative conception” of the First Amendment that would allow government to use the First Amendment to “facilitate the conditions necessary for democratic self-government” (whatever that means). Net neutrality regulation becomes one of many ways she would put this theory into action. Importantly, she would not stop with ISPs. She makes the case for extending the entire regulatory regime to Google and search platforms. Welcome to the Brave New World of the the FCC as the Federal Search Commission or Federal Cloud Commission!

Her attempt to cast Net neutrality as the Internet’s First Amendment is a grotesque contortion of the real First Amendment, and a complete betrayal of the Founder’s original intentions.  As I made clear in my recent essay on “Net Neutrality Regulation & the First Amendment,” the Internet’s First Amendment is the First Amendment, not some new, top-down, heavy-handed regulatory regime that puts the Federal Communications Commission in control of the Digital Economy. Her conception of the First Amendment would convert it from a shield against government control into a sword that the government could use as it wished. It would mean that “Congress shall make no law…” would suddenly be replaced by “Congress shall make whatever law it wants” so long as it serves some amorphous “public interest.” Can you say “tyranny of the majority”?

Regardless, event though I find her views to be morally repugnant and the antithesis of true digital freedom, Nunziato’s book is a concise articulation of that vision and it deserves everyone’s attention. It serves as a blueprint for where the Net neutrality wars are taking us.

(4) David Bollier – Viral Spiral: How the Commoners Built a Digital Republic of Their Own

David Bollier’s Viral Spiral is the first major history of the “digital commons” / “free culture” movement, and despite my many person disagreements with him and this movement, it is an excellent treatment of the topic. Bollier surveys this growing intellectual movement from its early open source days to the rise of the Creative Commons and on into the present.  The cast of characters in this drama will be well-known to anyone involved in modern tech policy debates: Richard Stallman, Lawrence Lessig, Jonathan Zittrain, Yochai Benkler, et al.

There is absolutely no doubt that this intellectual movement is winning the war of ideas in cyberlaw front today, as I noted in a recent debate with Lessig and Zittrain over at Cato Unbound.  As a cyber-libertarian, I find myself occasionally at odds with these guys and this movement on a variety of policy issues, but that didn’t stop me from enjoying David Bollier’s treatment of this movement and these issues.

(5) David Post – In Search of Jefferson’s Moose: Notes on the State of Cyberspace

David Post is one of the early intellectual giants in the field of cyberlaw. Back in the days when most of us were still just trying to get our 14.4 modems to work properly to get on Al Gore’s “Information Highway,” David Post was writing essays and law review articles that were a decade ahead of their time.  In particular, his work on Internet governance and jurisdictional matters was path-breaking, and much of it is updated and extended in Jefferson’s Moose.

I must admit, however, that I was hoping for a bit more from David in this book.  Beyond just being a first-rate intellectual in this space, he is also one of the few remaining defenders of “Internet exceptionalism,” and he has genuine cyber-libertarian leanings.  After waiting almost 10 years for David to wrap this thing up after he first told me about it back around 2000, I was thinking he might come up with the sort of cyber-libertarian manifesto I’ve always hoped he would write.  Although he fell a bit short in that regard, it doesn’t mean it’s not a good book. It is. You will enjoy it no matter what cyber-philosophy you subscribe to.

Read my entire review of Jefferson’s Moose here.

(6) Dennis Baron – A Better Pencil: Readers, Writers, and the Digital Revolution

Baron’s A Better Pencil is a splendid history of techno-pessimism and the endless battles about the impact of new technologies on life and learning, something I have written about here before in my essays on “Internet optimists vs. pessimists” (See: 1, 2, 3).   Baron notes that almost as soon as people learned to put chisel to stone and then quill to paper, a great debate began about the impact of new communications technology on culture and education. And that debate rages on today with a new generation of optimists and skeptics battling over the impact that computing, the Internet, and digital technologies have on our lives and on how we learn about the world.

Baron walks us through a litany of historical examples—the printing press, the telegraph, telephones, typewriters, pocket calculators, personal computers, word processors, webpages, blogs, social-networking sites, and more—and identifies the usual pattern: we greet each new technology with deep distrust and dire warnings, but in time we adapt to the new realities. Indeed, as a species, we have an unparalleled ability to learn new ways of doing things. We don’t always like technological change, and often we deeply resent or fear it, but in the end, we learn to live with it and eventually to embrace it.  With the rise of the Internet and digital technologies, we see this pattern unfolding once again. But Baron counsels patience and understanding instead of the sort f hysteria and backlash we see from the likes of Andrew Keen, Lee Siegel and others.  It’s a refreshing and uplifting perspective.

Highly recommended. See my complete review of Baron’s A Better Pencil over at the City Journal website.

(7) Mark Helprin – Digital Barbarism: A Writer’s Manifesto

No book has been more disappointing to me in recent memory than Mark Helprin’s Digital Barbarism. As someone who still finds a lot to defend in copyright law, I was excited when I learned that one of America’s most gifted authors–and the author of my favorite literary work of the late 20th century (A Soldier of the Great War)–was taking a crack defending copyright in a short manifesto.

Alas, as I argued in my review of the book for National Review, while Helprin occasionally rises to great heights in his defense of copyright, he too often sinks to lamentable lows–by resorting to the same unbecoming rhetorical tactics used by the “cyber-mob” he seeks to condemn. Indeed, his book is filled with gratuitous vitriol and neo-Luddite ramblings about the Internet and Information Age that severely detract from his defense of copyright. Channeling the ghost of the late social critic Neil Postman, Helprin’s critique of copyright skeptics quickly turns into an all-out assault on modern digital culture and cyberspace. He argues that we are witnessing “the decline of culture,” the “mechanization of the soul,” our “intellectual and spiritual destruction,” and the rise of a movement of “wacked-out muppets led by little professors in glasses” that “threatens in a decade or two to dissolve the accomplishments of millennia, reordering the ways in which we think, write, and communicate.” And it just gets worse from there. Much like recent rants by Andrew Keen and Lee Siegel, Helprin speaks repeatedly about the “surrender of human nature” to “the machine revolution” and the corresponding need to “control the machine.”

How a man who has penned some of the most beautiful prose in modern times could craft an off-the-rails screed of this magnitude remains incomprehensible  to me.  What’s worse is that he set back the cause of defending what’s best about copyright in the process. Luckily for Helprin, there’s plenty of hysteria on the other side, as the next book on my list makes clear.

(8) William Patry – Moral Panics and the Copyright Wars

Bill Patry is an angry man. He is the anti-Helprin. The vitriol that Helprin directs against the copyright-haters is reversed in this screed and turned against not just copyright holders and content creators, but against the entire capitalist system. Patry, who is the author of a multi-volume treatise on copyright law, has done the intellectual equivalent of “going postal” within his own intellectual community. He has turned his intellectual guns on anyone and everyone who has ever had a kind word to say about copyright. He cannot find one nice thing to say about copyright or anyone who defends copyright in this book. Not one.

What’s most ironic about the book is that Patry seems utterly oblivious to the fact that in the process of critiquing the inflammatory rhetoric and “misuse of language” occasionally emanating from some copyright defenders, he goes completely over the top himself and engages in even more egregious rhetorical flourishes. Choice gems from the book include: “digital guillotines,” copyright as “cancer,” “copyright dwarves,” Maoism, the “sins” of copyright, “socialism for the wealthy,” and a comparison of the DMCA to “Mussolini’s Fascist Italy.”  Apparently when it comes to the “misuse of language,” Patry believes that two wrongs make a right.

And then there is his mind-boggling conclusion that: “I cannot think of a single significant innovation in either the creation or distribution of works of authorship that owes its origins to the copyright industries.”  Apparently, every great book, every great movie, every great video game, and ever great musical composition of the past century was done solely for the love of it all. Copyright had apparently had absolutely nothing to do with it according to Patry’s logic. That is just an astonishingly naive notion, in my opinion. Apparently this man’s hatred for copyright-related industries is so intense that it has blinded him to any potentially positive effects of copyright law. If nothing else, it would have been nice to see Mr. Patry address how it is that America is the world’s leading creator and exporter of creative arts.  Certainly copyright law must have had something to do with that!

Chapter 5 of his book makes it clear that Patry’s critique of copyright is actually rooted in a much deeper suspicion about capitalism itself.  He speaks of “the myth of economic freedom” and claims that “free market fundamentalism… destroyed much of the world’s economies.”  He then launches into a neo-Marxist critique of property rights more generally, treating property as a zero-sum game of winners and losers.  At times it all begins to sound like a rant from an old Herbert Marcuse book with questions like: “why are the interests of one social group favored over another?” and “What social objective is being furthered by the decision to privilege one group over another?”  And there’s all sorts of talk about “regulation in the public interest,” which I have critique as a meaningless non-standard here many times before.

In the end, Patry’s book will–along with Helprin’s–long be remember as marking the nadir in the “copyright wars;” a moment when grown men of great intelligence decided to trade in their integrity for the opportunity to engage in below-the-belt rhetorical cheap shots that would typically be reserved for college student debating politics over beers and shots at two in the morning.  They should both be ashamed of themselves.

(9) Gary Reback – Free the Market!  Why Only Government Can Keep the Marketplace Competitive

Gary Reback’s over-the-top ode to antitrust as the great savior of capitalism reads like an extended love letter. As I noted in my lengthy critique of his book, his fairy tale narrative of antitrust as the savior of capitalism is hopelessly one-sided, and his recommendations to expand antitrust enforcement wouldn’t “Free the Market” as he argues in his book’s shameful title, but would instead wrap it in regulatory chains.

He repeatedly insults the intelligence of the reader by claiming antitrust is supposedly not a form of economic regulation and that is can only have beneficial effects. He wants antitrust officials to intervene early and often in high-tech markets to guide markets to a supposedly better place. Reback considers just about everything “the Chicago School” taught us to be antitrust apostasy and he would like to erase four decades worth of economic literature and evidence that suggests antitrust law is a form of economic regulation and does have unintended consequences that often hurt consumer welfare.  Even if you are not an inherent antitrust skeptic like me, I think most people would hope for a better treatment of the other side of this story.

Read my lengthy review of Reback’s Strangle Free the Market here.

(10) tie – Tyler Cowen – Create Your Own Economy: The Path to Prosperity in a Disordered World and John Freeman – The Tyranny of E-Mail: The Four-Thousand-Year Journey to Your Inbox

OK, so I just couldn’t figure out which of these two to cut from the list so I took the easy way out by having them tie for the last slot!  In this case, however, there’s another reason it makes sense for both of them to round out the list: Both Freeman and Cowen explore how humans are coping with information overload–albeit from two very different perspectives.

As I noted in my lengthy essay on the topic earlier this year, Cowen is an unrepentant optimist. He believes humans have the ability to adapt to new technological realities and a world of information abundance. In fact, Cowen argues, new tools and information gathering and processing technologies actually “lengthens our attention spans in another way, namely by allowing greater specialization of knowledge.”

John Freeman, by contrast, wants us all to take a high-tech time out. Like other Internet skeptics, he is worried that cyberspace and digital technologies are reshaping humanity–and not for the better. “If we are to step off this hurtling machine, we must reassert principles that have been lost in the blur,” he argues. “It is time to launch a manifesto for a slow communication movement, a push back against the machines and the forces that encourage us to remain connected to them.”

Unlike most other Internet pessimists, however, Freeman’s tone is more measured and his recommendations more reasonable.  Of course, it helps that he is magical wordsmith. Even if you find yourself disagreeing with many of his ultimate conclusions–as I did–you should read The Tyranny of E-Mail for a lesson in how to construct an argument and to appreciate the gift of fine writing. It’s easily the best tract by any Net skeptic since Nick Carr’s The Big Switch, and a much better one in many ways. It will force you to ask tough questions about the impact of the Information Age on you and the world around you.  Nonetheless, I remain an unrepentant techno-optimist (albeit a pragmatic one)!

Honorable Mentions: Here are a couple of other books that I couldn’t fit on my list but that you might want to also consider adding to your bookshelf:

• Manuel Castells – Communication Power
• James Boyle – The Public Domain: Enclosing the Commons of the Mind
• Randall Stross – Planet Google: One Company’s Audacious Plan to Organize Everything We Know [my review]
• Ken Auletta – Googled: The End of the World As We Know It [my review]
• Scott Rosenberg- Say Everything: How Blogging Began, What It’s Becoming, and Why It Matters
• John W. Dozier Jr. and Sue Scheff – Google Bomb

Please let me know what titles might be missing from this list and which books you think are the best of the year.

And speaking of bookshelves, here’s my Shelfari digital bookshelf in case anyone is interested. If you hadn’t figured it out yet, I am a bit of book nerd!  My life is spent swimming through oceans of paper.  My friends often ask me, “How can you spend so much time reading?” My question back to them is: “How can you not?”

by 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

• Natural Rights philosophers –John Locke, Ayn Rand, The Founders
• Utilitarian philosophers – John Stuart Mill (On Liberty), Herbert Spencer
• “Austrian School” of Economics – Ludwig von Mises, F.A.  Hayek, Murray Rothbard
• Milton Friedman (Free to Choose)
• Robert Nozick – argument for a minimalist state; “utopia of utopias” notion
• Thomas Sowell – critique of “The Vision of the Anointed”
• Richard Epstein – vision of “Simple Rules for a Complex World

B.  Modern Cyber-Libertarian Theorists

• Ithiel de Sola Pool (Technologies of Freedom)
• Alvin Toffler (The Third Wave , Future Shock)
• George Gilder (Microcosm , Telecosm)
• Peter Huber (Law & Disorder in Cyberspace)
• Tom W.  Bell
• Technology Liberation Front bloggers

C.  Internet Exceptionalists[see Sec.  IV below]

• Nicholas Negroponte (Being Digital)
• John Perry Barlow (“Declaration of the Independence of Cyberspace”)
• David Post
• Eric Goldman
• H.  Brian Holland

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):

• Lawrence Lessig (Code , Free Culture)
• Tim Wu (Who Controls the Internet?)
• Yochai Benkler (The Wealth of Networks)
• Jonathan Zittrain (The Future of the Internet & How to Stop It)
• David Bollier (Viral Spiral)
• Harvard Berkman Center*
• New America Foundation*
• Public Knowledge*

(*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

• Section 230 of the Communications Decency Act of 1996 is probably the best example of cyber-exceptionalism in practice. It grants broad immunity to online intermediaries for third party content except for criminal and IP law—breaking with traditional tort liability standards. Specifically, Sec. 230 rejected the “deputization of the middleman” model of liability.
• Overturning of the Communications Decency Act’s indecency & obscenity provisions in Reno v. ACLU decision
• Various court decisions blocking enforcement of the Child Online Protection Act (COPA) of 1999
• The encryption wars & the defeat of the “Clipper Chip”
• The Internet Tax Freedom Act of 1998

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

• John Perry Barlow, Declaration of the Independence of Cyberspace (1996).
• Tom W. Bell, Free Speech, Strict Scrutiny, and Self-Help: How Technology Upgrades Constitutional Jurisprudence , 87 U. Minn. L. Rev. 743 (2003).
• Esther Dyson, George Gilder, George Keyworth, & Alvin Toffler, The Progress & Freedom Foundation, A Magna Carta for the Knowledge Age (1994).
• Eric Goldman, The Third Wave of Internet Exceptionalism, Santa Clara Magazine (Winter 2008).
• H. Brian Holland, In Defense of Online Intermediary Immunity: Facilitating Communities of Modified Exceptionalism, Kansas L. Rev. (2007).
• Peter Huber, Law & Disorder in Cyberspace: Abolish the FCC and Let Common Law Rule the Telecosm (1997).
• Ithiel de Sola Pool, Technologies of Freedom (1983).
• David Post, In Search of Jefferson’s Moose: Notes on the State of Cyberspace (2009).
• Adam Thierer, The Pragmatic Internet Optimist’s Creed, Technology Liberation Front Blog (Nov. 11, 2008).
• Technology Liberation Front Blog, About the Technology Liberation Front (August 2004, revised 2008).

Cyber-Libertarianism: The Case for Real Internet Freedom [Ver 1.0 – Thierer & Szoka] http://d.scribd.com/ScribdViewer.swf?document_id=18490847&access_key=key-14tt6eb4f2cdcil8wnf2&page=1&version=1&viewMode=

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)

Consequently:

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.

Conclusion

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.

I haven’t been blogging much lately because, along with my PFF colleagues Berin Szoka and Adam Marcus, I’m working on a lengthy paper about the importance of Section 230 to Internet freedom. Section 230 is the sometimes-forgotten portion of the Communications Decency Act of 1996 that shielded Internet Service Providers (ISP) from liability for information posted or published on their systems by users or other third parties. It was enshrined into law with the passage of the historic Telecommunications Act of 1996. Importantly, even though the provisions of the CDA seeking to regulate “indecent” speech on the Internet were struck down as unconstitutional, Sec. 230 was left untouched.

Section 230 of the CDA may be the most important and lasting legacy of the Telecom Act and it is indisputable that it has been remarkably important to the development of the Internet and online free speech and expression in particular. In many ways, Section 230 is the cornerstone of “Internet freedom” in its truest and best sense of the term.

In recent years, however, Sec. 230 has come under fire from some academics, judges, and other lawmakers. Critics raise a variety of complaints — all of which we will be cataloging and addressing in our forthcoming PFF paper. But what unifies most of the criticisms of Sec. 230 is the belief that Internet “middlemen” (which increasingly includes almost any online intermediary, from ISPs, to social networking sites, to search engines, to blogs) should do more to police their networks for potentially “objectionable” or “offensive” content. That could include many things, of course: cyberbullying, online defamation, harassment, privacy concerns, pornography, etc. If the online intermediaries failed to engage in that increased policing role, they would open themselves up to lawsuits and increased liability for the actions of their users.

The common response to such criticisms — and it remains a very good one — is that the alternative approach of strict secondary liability on ISPs and other online intermediaries would have a profound “chilling effect” on online free speech and expression. Indeed, we should not lose sight of what Section 230 has already done to create vibrant, diverse online communities. Brian Holland, a visiting professor at Penn State University’s Dickinson School of Law, has written a brilliant paper that does a wonderful job of doing just that. It’s entitled “In Defense of Online Intermediary Immunity: Facilitating Communities of Modified Exceptionalism” and it can be found on SSRN here. I cannot recommend it highly enough. It is a masterpiece. In the paper, Holland argues that Section 230 has helped give rise to our modern Web 2.0 world and that it “plays a vital role in [the] process of building heterogeneous communities that encourage collaborative production and communication.” Specifically, Holland argues that Sec. 230 immunity allows an online community:

to evolve and structure itself in the most efficient manner. To a limited extent, §230 immunity permits uncoordinated and uncoerced individual choice among different values and among different embodiments of those values. It further allows the intermediary to play an active role in facilitating the market in social norms and in creating enforcement mechanisms as a tool of self-governance. Those enforcement mechanisms can then themselves adapt. This allows not only for the development of distinct community values, but also for a means of tapping into incentives, adapting to evolving norms and conditions, and reducing costs associated with disputes. Within this framework, greater variations in community norms are possible. As communities grow, niche communities are formed at low cost. It… functions as a laboratory for testing social norms and values.

I think that is exactly right. Moreover, reading Professor Holland’s article got me thinking about something my favorite modern political philosopher, the late Harvard University philosophy professor Robert Nozick, said in his brilliant 1974 book, Anarchy, State, and Utopia. In a sense, Section 230 and existing online liability norms have helped foster what Nozick called “a utopia of utopias.”

Because people are all complex and quite different from one another, Nozick argued that, “There is no reason to think that there is one community which will serve as ideal for all people and much reason to think there is not.” Consequently, as a normative matter, it would be preferable for government to allow spontaneous community formation such that individuals can pursue their own interests. Nozick elaborated in the closing chapter of his book as follows:

The conclusion to draw is that there will not be one kind of community existing and one kind of life led in utopia. Utopia will consist of utopias, of many different and divergent communities in which people lead different kinds of lives under different institutions. Some kinds of communities will be more attractive to most than others; communities will wax and wane. People will leave some for others or spend their whole lives in one. Utopia is a framework for utopias, 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.

That last line almost perfectly encapsulates everything that is so wonderful about our modern Web 2.0 world. Netizens are free to pursue their own vision of a good life in a community of their choosing, free from centralized or coerced visions of what “a good life” should entail.

Web 2.0 is Nozick’s utopia of utopias, and Section 230 has been instrumental in fostering and protecting it. We shouldn’t forget that.