Earlier this year I read Scott Cleland’s new book, Search & Destroy: Why You Can’t Trust Google, Inc., after he was kind enough to send me an advance copy. I didn’t have time to review it at the time and just jotted down a few notes for use later. Because the year is winding down, I figured I should get my thoughts on it out now before I publish my end of year compendium of important tech policy books.

Cleland is President of Precursor LLC and a noted Beltway commentator on information policy issues, especially Net neutrality regulation, which he has vociferously railed against for many years. On a personal note, I’ve known Scott for many years and always enjoyed his analysis and wit, even when I disagree with the thrust of some of it.

And I’m sad to report that I disagree with most of it in Search & Destroy, a book that is nominally about Google but which is really a profoundly skeptical look at the modern information economy as we know it. Indeed, Cleland’s book might have been more appropriately titled, “Second Thoughts about Cyberspace.” In a sense, it represents an outline for an emerging “cyber-conservative” vision that aims to counter both “cyber-progressive” and “cyber-libertarian” schools of thinking.

After years of having Scott’s patented bullet-point mini-manifestos land in my mailbox, I think it’s only appropriate I write this review in the form of a bulleted list! So, here it goes..

The Central Irony of the Book

• The central irony of the book — and one that he never confronts — is that, in the name of dealing with what he regards as “Big Brother, Inc.,” Cleland thinks we must call in Big Government to deal with Google and the digital economy in general.
• Cleland has spent the last decade railing against the “cyber-collectivist” or “digital commons” movement (I’ll just call them “cyber-progressives”) and yet, ironically, in Search & Destroy, he has adopted their tone and tactics in vilifying Google, one of the great capitalist success stories of our time.
• In a sense, Cleland has unwittingly joined his cyber-conservatism with the cyber-progressivism he supposedly detests. His passionate belief in “security” and the Rule of Law quickly devolves into the Rule of Man (or regulators, that is) over a corporate entity that he fundamentally distrusts and loathes. But it also signals his acceptance of a much greater role for government in policing all of cyberspace.

On Privacy as Property & Privacy Regulation in General

• The book is loaded with over-the-top rhetoric and techno-panicky talk — not just about Google but about other issues, like online privacy more generally.
• Cleland has made the grave error of suggesting — again in line with the cyber-progressive movement he typically derides — that privacy should essentially be treated as property right and that extensive regulation is needed in the name of protecting privacy online.
• Importantly, in railing against various types of data collection or advertising practices, Cleland doesn’t seem to appreciate that his book is not just an indictment of Google but of the entire Information Economy as we know it. The data collection and online advertising practices he decries and believes should be regulated are the engines that run not just Google, but a large percentage of the business models for new and old companies alike. (I began wondering at points in the book how Cleland felt about analog era data collection companies like Experian, TransUnion, Equifax, etc.)
• Indeed, there are times while reading the book when I found Cleland’s views on privacy and information policy virtually indistinguishable from those of the radical Left, many of whom he cites favorably in the book! (ex: Frank Pasquale, Mark Rottenberg, GoogleWatch.)
• I know Cleland will cringe at the thought, but there are clear similarities between his book and Tim Wu’s book The Master Switch, with their common fears about “information empires” and “Big Brother, Inc.”  The difference is that Cleland singles out Google as the most problematic.
• Again, this is a dangerous game Cleland is playing since his indictment of Google could be applied to many other Digital Economy operators, just as Wu has done in The Master Switch by suggesting that action needs to be taken against not just Google but also Apple, AT&T, Verizon, Facebook, Amazon, and even Twitter who are all “information monopolists” in Wu’s view.

The False Link to Friedman & Hayek

• Cleland is wildly off-base in enlisting the words and Milton Friedman and F.A. Hayek in support of his indictment of Google.
• Cleland imagines that Google’s “central planning” efforts are roughly equivalent to government central planning. That is horribly misguided and to enlist Friedman and Hayek’s words in defense of this thesis is a travesty.
• Friedman and Hayek’s critique of central planning was squarely focused on the State, not corporations. While it may be the case that elements of their critique could be applied to large private entities that attempt audacious tasks like “organizing the all the world’s information,” it does not follow that the State must take action to counter those business objectives, no matter how quixotic. This is where marketplace trial and error — not anticipatory regulation — is the better way to determine what is efficient and what consumers desire.
• To use a Hayekian term, Cleland is guilty of the “pretense of knowledge” problem by imagining he (or the government) has a more sensible vision for how these digital markets should look or operate. Only ongoing experimentation can tell us that.

On Solutions

• We can all agree that more transparency about privacy/data collection practices (for Google and others) is generally a good idea, but it’s clear that is not enough for Cleland.
• He wants to bring in the wrecking ball of antitrust, thinking that this is the way to better organize the markets that Google serves.
• Again, the irony is that he sees no conflict between this prescription and his general distaste for Big Government in other contexts.  As I noted in my 2009 review of Gary Reback’s tedious screed Free the Market, there are some conservatives who subscribe to the illogical belief that antitrust law is not a form of economic regulation. Sadly, Cleland is one of them. Instead, in his view, antitrust is about “the Rule of Law.” Except that, at root, antitrust is really just as much about the Rule of Men as tradition administrative agency regulation. And those men can make many mistakes, especially when they imagine they can magically concoct a supposedly better plan for fast-moving, high-tech sectors.

Where Cyber-Conservatives & Cyber-Libertarians Part Ways

• Part of what Cleland has done in this book is to further develop a theory of “cyber-conservativism.”
• We are beginning to see a serious schism develop between cyber-conservatives (like Scott) and cyber-libertarians (like myself and many others here at the TLF).
• Over the past decade, cyber-conservatives and cyber-libertarians have been allies on many important economic policy battles (ex: Net neutrality and Net taxes are two good examples).
• But the cyber-conservative desire to make everything subservient to “security and stability,” and their tendency to sometimes extend property right concepts well beyond their natural or practical application, is what leads to a strong break with cyber-libertarians, who value liberty, experimentation, dynamism, and limited government above all else.
• This tension is going to grow more acute in coming years as information control efforts become increasingly onerous and costly (especially on the copyright, privacy, and cyber-security fronts).
• Cyber-conservatives will need to ask themselves just how far they want the State to go to achieve “security and stability,” or to preserve and / or extend property rights into the sphere of intangible information flows.
• Cleland’s book suggests he is willing to make that leap in a fairly aggressive way to take down a company that many cyber-libertarians believe has been a great innovator and prime example of cyber-capitalism at its finest.
• Like some other conservatives, Cleland has also strongly endorsed sweeping copyright regulation that would fundamentally alter the Internet’s architecture in the name of protecting copyright.  Most cyber-libertarians could never accept such “by-any-means-necessary” approaches to copyright protection.
• But the most interesting fight in the short-term will be over privacy controls. Cleland’s book signals the desire of some conservatives to have government take a more active role in the name protecting (or even “property-tizing” personal information). Some conservative policymakers, like Rep. Joe Barton (R-TX), have long been in that same boat. It will be interesting to see how many more conservatives join them and then make alliances with cyber-progressives, who are gung-ho about expanding the power of the State in this regard.
• One thing is certain to me after reading Scott’s book: Any alliances we cyber-libertarians make with cyber-conservatives will be fleeting and fickle affairs, just as they often are when we broker peace treaties with cyber-progressives. I suppose I was naïve to ever have thought we could bring more of either group fully into our liberty-loving camp.  But what concerns me even more is that those other two camps may increasingly (sometimes unwittingly, of course) be joining forces to expand the reach of Big Government’s tentacles until the entire digital economy is smothered in innovation-stifling bureaucracy and red tape.
• “The natural progress of things is for liberty to yield and government to gain ground,” Thomas Jefferson taught us long ago. With conservatives increasingly joining progressives in calling for greater State control of cyberspace, it is now clear to me just how lonely we libertarians will be in calling for government to keep its hands off the Net.

__________

Related Reading:

• Cyber-Libertarianism: The Case for Real Internet Freedom (with Berin Szoka)
• What Cablegate Tells Us about Cyber-Conservatism (by Jerry Brito)
• What Privacy Conservatives & Moral Conservatives Share in Common
• SOPA & Selective Memory about a Technologically Incompetent Congress
• When It Comes to Information Control, Everybody Has a Pet Issue & Everyone Will Be Disappointed
• And so the IP & Porn Wars Give Way to the Privacy & Cybersecurity Wars

I want to thank Tim Wu for continuing to engage in a discussion here about his book, The Master Switch, with his various comments to my ongoing rants.  After pouring out about 15,000 words over the past 4 days, I suspect I’m beginning to sound a bit like his cyber-stalker!  I feel a bit bad about this because I really do like Tim a lot and find him to be one of the all-around coolest and most laid-back guys in the Net policy business.  But, as I’ve noted in my ongoing series [see parts 1, 2, 3, & 4], we have profoundly different worldviews when it comes to information history and policy. And some of the recent comments he made to my 3^rd post deserve a serious response.

In one of those comments he asks, “The question, then, is how you get, essentially, limited, controlled government in regulatory affairs; how you duplicate, in some sense, the limits imposed on other dangerous gov’t functions like the army. I don’t think this is having things both ways; I think this is trying to learn from what has gone wrong in the past.”  In the other, he says: “The question I’m asking in the end of the book is whether we can do better; try to have rules against the worse forms abuse without a creeping regulation that turns into capture. I suspect you think that’s impossible, but I don’t.”

So, here’s my response (and I’m making it a new, dedicated post here instead of just a comment in an old thread because I feel we are getting to the heart of the difference between cyber-libertarians (like myself) and cyber-collectivists (or whatever Tim would call himself).

To be clear, I don’t think corporations are angels or that there is never a time when a market can’t be naturally subject to a great deal of control by one company or a handful of companies.  The difference between us comes down to two things primarily.

First, as I have already noted in a couple of these essays (especially this one), I believe regulatory capture, mismanagement, or other shenanigans have more to do with creating and / or maintaining “monopoly” or lasting / harmful “market power” than natural market forces.   By definition, a “purely economic laissez-faire approach” does not exist in markets characterized by regulatory capture and bureaucratic mismanagement.  And you won’t ever get less regulatory capture and bureaucratic mismanagement by increasing the scope of government control over a market.

Second, to the extent that any company or set of companies is able to achieve “market power” is a largely natural fashion (think IBM in 70s or Microsoft in late 90s), I believe that markets can and do act to evolve around those situations quite rapidly, even more rapidly when the market is built on code.

I spent time developing these points in detail in this two-part debate [1, 2] with Lawrence Lessig, which I hope Prof. Wu will take the time to read since I went to great pains to clearly delineate the differences that separate our worldviews.  Ultimately, as I said there in response to Prof. Lessig, what really separates the cyber-libertarian and cyber-collectivist schools of thinking comes down to a belief that “market failures” or “code failures” are ultimately better addressed by voluntary, spontaneous, bottom-up, marketplace responses than by coerced, top-down, governmental solutions. Moreover, the decisive advantage of the market-driven approach to correcting code failure comes down to the rapidity and nimbleness of those response(s).

Does that mean cyber-libertarians believe everything will be all wine and roses in a truly free marketplace?  Absolutely not.  There will be short term spells of what many of us would regard as excessive market power.  The difference between us comes down to the amount of faith we would place in government actors versus market forces / evolution to better solve that problem.  We cyber-libertarians would obviously have a lot more patience with markets and technological change, and would be willing to wait and see how things work out.  We believe, as I have noted in my previous responses to Wu, that it is during what some regard as a market’s darkest hour when some of the most exciting disruptive technologies and innovation are developing.   We are bullish on what I have called experimental, evolutionary dynamism.  People don’t sit still; they respond to incentives, including short-term spells of “market power.”

Is this blind faith in the market?  I suspect Prof. Wu and others would accuse us of that.  But I would argue it isn’t blind faith but informed fact.  It’s interesting, for example, that one of the “information empires” Wu doesn’t spend much time on in his book is IBM.  Back in the 60s and 70s, (as I have documented here before) IBM was the big, bad dog of the computing world, with significant “market power” in mainframes — the only computers that really counted at the time.  Big Blue’s market power was achieved in a fairly natural way, however.  Importantly, there isn’t much regulatory capture or interference I could point to that helped cause or maintain the power IBM had. So, it’s certainly a better case study than others Wu uses in his book, most of which were subject to early meddling by government that tipped the balance in unnatural directions.

Anyway, back in the 1960’s, some folks at the time feared IBM might “leverage” their significant market power into new fields. As a result, the Department of Justice opened an antitrust case against Big Blue in 1969 that would become a 13-year quagmire, with little to show for all the legal wrangling by the time the case was abandoned in 1982.  Here’s how CNet staff writer Rachel Konrad summarized the fiasco back in 2000:

In January 1969, the government began a sweeping antitrust investigation into IBM’s dominance and attempted to break it into smaller companies that would compete against one another. During the six most critical years of the trial, from 1975 to 1980, the parties called 974 witnesses and read 104,400 pages of transcripts, according to Emerson Pugh’s 1995 book “Building IBM: Shaping an Industry and Its Technology.” The 13-year investigation, which required IBM to retain 200 attorneys at one point, fizzled in the early ’80s as the computing landscape shifted from mainframes to personal computers. The government abandoned the tainted effort entirely in 1982, as clones of the IBM PC eroded Big Blue’s dominance. But the company, still fearful of the watchful eye of the Justice Department, took pains to avoid the appearance of a monopoly long after it relinquished its hold on the market. People who worked for IBM in the ’80s and early ’90s said the company routinely fell victim to “pricing death strategy”–a reluctance to lower prices below cost, even on products that weren’t selling–to avoid what the government would call predatory pricing. By the mid-’80s, the company was in bad shape. The antitrust troubles, combined with ill-timed product failures such as the Future System, pinched revenues. The company began a nearly decade-long financial slide. In retrospect, the antitrust case against IBM seemed laughable.

IBM had become the victim of a classic “disruptive technology” paradigm shift that few could have foreseen in 1969.  As Peter Pitsch noted in his 1996 PFF book The Innovation Age, “In 1981 the Department of Justice was still pressing their case against IBM while market forces were about to lay waste to the company.” Pitsch continued:

IBM certainly did not expect to see PCs erode the market share and profitability of its venerable mainframe computers, but the fall of the old “big iron” machines was rapid and spectacular. The revenue of IBM’s mainframe unit fell from roughly $9 billion in 1990 to an estimated $4.5 billion in 1994… [T]he parties destined to become players in the PC revolution were unknown when the PC was introduced, and the experts’ predictions of a much-ballyhooed computer face-off between IBM and AT&T never materialized. Innovative companies that did not exist at the beginning of the revolution rose rapidly. Few people had ever heard of a small company named Microsoft. Nor had they heard of Intel, Novell, Compaq, Dell, or Netscape.

Pitsch went on to summarize how IBM’s manufacturing capacity was slashed in the years that followed and also notes that, astonishingly, “in the space of five years after 1987, IBM lost two thirds of its market value — more than $70 billion.”  In sum, new marketplace innovation and competition handled the short-term market power concern that antitrust regulators had about Big Blue.  Pitsch goes on to explain what the antitrust regulators missed:

A dominant firm can lose its “King of the Hill” status in two ways. First, if it does not continually improve, it will lose market share and profits to low-cost imitators. For example, the ability of low-end PC manufacturers to make IBM clones fostered robust price competition in the PC market. Second, today’s market leaders must worry that some established and well-financed competitor or possibly an upstart produce a technical breakthrough that will displace them. This situation reflects [the] fact that gains from innovation are so powerful and beneficial to consumers that they outweigh the higher prices dominant firms can charge. Indeed, attempts to eliminate these high profits by regulating prices would almost certainly disserve consumers even if the regulations dampened the incentives for innovation only slightly.

What Pitsch is talking about here is dynamic competition, not the static competition. And what the history of IBM shows is the power of evolutionary dynamism in action.  Markets are a learning experience; a “discovery process” as Austrian economists have taught us. Those of us who believe in dynamic competition and evolutionary dynamism see markets in a constant state of flux and expect that sub-optimal market developments or configurations are exactly the spark that incentivizes new form of market entry, innovation, price competition, and so on. Experimentation and evolution happen if you let them happen.

Others, however – and I suspect this includes Prof. Wu – would argue that’s not good enough. They want action, and they want it now!  Every short-term hiccup deserves a policy response in the name of protecting “the public interest,” however they define it through regulation.  But what about the costs and trade-offs associated with early, preemptive, or prescriptive regulation?  What of the danger of regulation steering markets in unnatural or inefficient directions? The possibility of picking technological winners and losers, or technological lock-in?  The possibility of regulatory capture and the creation of a special interest, lobbying hell inside the Beltway?

Somehow these factors often go out the window for those who subscribe to the more static, snapshot-oriented view of markets and competition that is so prevalent in cyber-collectivist circles.  But the cyber-libertarian can’t let those go.  Those factors lie at the core of the problem, we would argue. Actions have consequences. Regulations have costs. And those costs typically outweigh the benefits of preemptive strikes by the State.

And that, at root, is what separates the cyber-libertarian and cyber-collectivist worldviews when it comes to concerns about “market power” and what to do about it.

[Jump to Part 6 in the series.]

I’m thrilled to hear that the Economist has just launched a new column about business, innovation and entrepreneurship in honor of Joseph Schumpeter (1883-1950), the brilliant Austrian economist who,

argued that innovation is at the heart of economic progress. It gives new businesses a chance to replace old ones, but it also dooms those new businesses to fail unless they can keep on innovating (or find a powerful government patron). In his most famous phrase he likened capitalism to a “perennial gale of creative destruction”. For Schumpeter the people who kept this gale blowing were entrepreneurs. He was responsible for popularising the word itself, and for identifying the entrepreneur’s central function: of moving resources, however painfully, to areas where they can be used more productively. But he also recognised that big businesses can be as innovative as small ones, and that entrepreneurs can arise from middle management as well as college dorm-rooms.

Schumpeter’s work on the dynamism of high-tech markets (later married with Clayton Christensen‘s concept of “disruptive innovation“) is one of the most persistent themes across cyber-libertarian thinking of all stripes on a wide variety of issues. You can listen to an interview with the new column’s author on the Economist podcast here (MP3). One important point the author makes is that Schumpeter realized that celebrating capitalism did not preclude criticizing individual capitalists when justified and vice versa—something all too often forgotten today.

Five years ago today the Technology Liberation Front (the “TLF”) got underway with this post.  The idea for the TLF came about after I asked some tech policy wonks whether it was worth put together a blog dedicated to covering Internet-related issues from a cyber-libertarian perspective.  The model I had in mind was a “Volokh Conspiracy for Tech Issues,” if you will. I wanted to bring together a collection of sharp, liberty-loving wonks (most of whom worked in the think tank world) to talk about their research on this front and to give them a place to post their views on breaking tech policy developments.  It was to be a sort of central clearinghouse for libertarian-oriented tech policy analysis and advocacy.

At first, Tim Lee and I debated whether it even made sense to have that sort of narrow focus, but I think the passage of time and the rise of plenty of competition on this front shows that it was worthwhile.  And I’ve been very pleased with the tag-team effort of all our TLF contributors and the way—without anyone planning it, in true libertarian fashion—we’ve sort of developed a nice division of labor on various tech policy issues.

Perhaps a few stats are in order on this occasion to mark our progress 5 years in. The best indication of our success is the fact that our Pagerank (Google’s logarithmic scale of website importance based on links to that site) has reached 7/10—the same score shared by the Volokh Conspiracy (our model), as well as Techmeme (the leading tech news aggregator), the Cato Institute, CDT, etc. (For comparison: ArsTechnica and EFF are 8s.) Unfortunately, we’ve only been using Google Analytics for three of the past five years, so it’s impossible to get a authoritative accounting of traffic growth since Day 1. But here are few markers:

• 4,450+ posts
• 29,000+ comments
• 2,698 RSS subscribers
• 15,763 unique visitors per month
• 1,000,000 pageviews since Nov. 2006 when we started using Google Analytics
• Besides organic search and direct links, we get the bulk of our traffic from other tech-oriented sites (in order of hits) TechDirt, Freedom to Tinker, Ars Technica, GamePolitics.com, TechMeme, Slate, etc., and aggregators such as reddit, Fark, and StumbleUpon

So, what’s our #1 post of all-time? That would be Jim Harper’s “Where to Get Your Fake ID,” proving that if you play Google search terms wisely, you can build a link goldmine!  18,200+ pageviews and counting!  (Harper… You finally have something to list on your resume that lots of people have read!)  Sometimes silly posts like that can net a lot of traffic. For example, another top 5 TLF post was my piece on “The Most Powerful Computer Ever,” which has netted over 7,700 pageviews.  It was just an old magazine ad that Wayne Crews had found years ago and sent me a copy of.

In case you’re interested, some of our other most popular TLF posts include:

• My post “Grouping Recent Net Books: Internet Optimists vs. Pessimists” (6,631 views)
• Jim Harper’s “Social Hack on Gmail Users” (3,756 views)
• My rant on “Video Games & Moral Panic” (3,408 views)
• Berin Szoka’s look at “The Right Way to Allow Cell Phone Jammers” (3,322 views)
• Tim Lee’s piece on the tech community & civil liberties: “Pissing on Their Graves” (2,828 views)
• Harper’s “ID Checks are About Control, Not Security” (2,870) and his look at “Border Biometrics” (2,402 views)
• Cord Blomquist’s “Sirius XM Bankruptcy: Thank Washington for the Delay” (2,069 views)
• Alex Harris’s look at the “Best and Worst Supreme Court Decisions” (1,714 views)
• My book review of  “Zittrain’s Future of the Internet” (1,689 views)

I want to thank all my TLF blogging colleagues for their contributions over the past 5 years. As I noted in that very first post here back in 2004, “this blog is not a one-man show.”  Almost all of us here have our own personal or organizational blogs, but when we come together here on the TLF, it helps us show the world that there is another vision for ordering the affairs of cyberspace beside the command-and-control, hands-all-over-the-Net mentality that dominates today: real Internet freedom!

There are a couple of people who deserve special thanks for what they have done for the TLF:

PJ Doland has not only generously hosted our site all these years and donated endless hours of his time to keeping it running through waves of spam attacks, but he also designed our unique TLF banner. His use of Soviet-style art for libertarian purposes is the perfect compliment to our “Liberation Front” theme.  PJ also provided that awesome TLF tagline: “The real problem is not whether machines think but whether men do.” (It’s a B.F. Skinner quote, incidentally).

Jerry Brito has also been enormously helpful with the back office stuff, including getting our podcast off the ground. He is also is responsible for the wonderful site redesign and improvements that were just rolled out recently. And Jerry has been extremely patient with all the TLF bloggers through the years as he taught us the basics about how to be more effective bloggers.

Tim Lee has been the TLF’s most prolific and popular blogger and, as I noted recently when he announced his departure from the TLF, it is not an overstatement to say that for many of the TLF’s five years the rest of us here have simply been riding on his coat tails. We were just lucky to be along for the ride as he made the TLF more visible to the tech policy world. He brought us a significant portion of the audience and respect that we have to today and I cannot thank him enough for that.

Berin Szoka, my colleague at PFF, came on board just over a year ago but since then has become a prolific force on the TLF and helped spawn several new “ongoing series” features such as the Privacy Solutions Series, “Googlephobia,” and Cutting the Video Cord.  Berin is also helping with the back-office stuff and trying to help me get the podcast going again regularly.

Our Readers! Seriously, we thank each and every one of you who has taken the time to visit our site, read our rants, and leave comments (even the shitty ones!)  We really appreciate it. We know there are countless other blogs out there to occupy your time and we’re honored that you’d give ours even a few minutes of your day. If you’re in D.C. today, we hope you’ll join us for our celebratory happy hour tonight!

Here’s to another 5 great years of technology freedom!  If you haven’t already done so, please subscribe to our blog feed, podcast feed (iTunes), Twitter and Facebook page.

Cheers,

Adam Thierer

P.S. I’m feeling a bit sentimental as I think back and realize all the things that didn’t exist even just 5 years ago: Twitter, the iPhone, FiOS, Facebook, Pandora, Chrome, the PS3 + Wii + 360, YouTube, Hulu, etc…   Just imagine how exciting the next 5 years will be!

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).

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