"For true liberty is not a matter of ridding oneself of external law. Liberty is consciousness of the law. The free man is not the one who has rid himself of the law, but the one who has made himself master of it." —Miguel de Unamuno

When discussing the many policy issues related to cyberspace, there is the temptation to analyze each one de novo without a holistic context in which to place them. One way to overcome this problem is to use the U.S. Constitution as a framework for policy analysis as well as a model for establishing a governance structure for the Internet. The comparison between the taming of cyberspace, which has been described to be as ungovernable as the Wild West, and the founding of a new nation in need of a new form of government, is a useful paradigm for cyberspace policy analysis. Because the purpose of the U.S. Constitution was to establish the rule of law in a new nation, it provides a "lawful" lens through which to view cyberspace.

The roots of the U.S. Constitution go back to the Magna Carta of 1215 that first established the rights of freemen. In 1776 the colony of Virginia published the Virginia Declaration of Rights, which was quickly followed by the Declaration of Independence for the thirteen colonies. After the Revolutionary War ended, the leaders came together to develop the governing documents for a new nation. The first attempt, the Articles of Confederation, did not create a strong enough central government, lacked a unified currency, and could not protect in times of war.

Thus, a unique governing document, the U.S. Constitution, was adopted in 1789 to establish a balance of power between three branches of a strong federal government, to clearly delineate the powers of the states and the powers of the central government, and to include a Bill of Rights to protect the individual from excessive government power. This amazing document laid the foundation for a democratic society, established the rights and responsibilities of citizens, provided equal protection for all, and established a rule of law and reason. The feature of this form of government that proved to be most enduring was the self-correcting mechanism provided by the checks and balances of its three branches as well as the ability to make new laws and amendments. It is within this same framework that we can analyze policy related to governance and control of cyberspace, a borderless virtual place that has been characterized by some as anarchy and others as despotism.

The first question that must be asked when attempting to examine governance in cyberspace is, "what is so special about cyberspace?" In his famous 1996 paper called "Cyberspace and the Law of Horses," Judge Frank Easterbrook, argued against creating special laws for cyberspace or any specialized issue. Easterbrook cited the concept of the "law of the horse," and stated that the same arguments against niche legal studies applied to cyberlaw: "...the best way to learn the law applicable to specialized endeavors is to study general rules. Lots of cases deal with sales of horses; others deal with people kicked by horses; still more deal with the licensing and racing of horses, or with the care veterinarians give to horses, or with prizes at horse shows. Any effort to collect these strands into a [book] on 'The Law of the Horse' is doomed to be shallow and to miss unifying principles." [3] He stated that general principles and laws should be used to examine specific cases. Lawrence Lessig countered this argument in his follow-up essay in 2001 [7], in which he argued that legal rulings and precedences would need to evolve to keep up with a rapidly changing cyberspace environment. Other experts have also noted that, although many issues are similar to those in the real world, the speed and power of the Internet to magnify situations beyond any previous scope require special attention.

In 2006 in his seminal book, Code: And Other Laws of Cyberspace, Version 2.0 [6], Lessig delineates four regulatory mechanisms that could be applied to cyberspace: law; the marketplace; norms and ethics; and computer code. He had reservations about each of them to be totally effective alone in providing a governance structure for cyberspace. The mechanism of the marketplace would self-regulate by the forces of a free marketplace. The drawback with cyberspace "marketplaces" is that they are controlled by large monopolistic entities that provide the technical infrastructure—such as the telecoms, Google, Microsoft or Amazon—and such entities would not naturally serve the underserved. Marketplaces often exacerbate the economic and digital divide.

Because cyberspace is virtual and borderless, crossing national and cultural boundaries, the power of norms and ethics to govern it turns out to be weak. Norms can exert control for local contexts, but quickly lose influence in a global setting. On the other hand, Lessig stated that code could be a powerful governing force by establishing technical standards and barriers against certain actions, such as copyright infringement. However, he feared that it was the least transparent and democratic of the four mechanisms. The recent debates around net neutrality illustrate Lessig's point about how code can be used to "govern" Internet access and activity.

So in the final analysis, establishing a legal framework to govern actions in cyberspace turns out to have the potential to be the most representative and democratic. Whether you believe that the Internet requires special laws or not, the U.S. Constitution becomes a compelling and helpful model to use to set up a governance framework for cyberspace as well as to discuss Internet policy issues. By examining how issues are framed in the constitution, we may be able to apply the same principles to cyberspace policy.

Since 1996 with the first attempt to pass a law to govern the Internet with the passage of the Telecommunications Decency Act, there have been calls by many people to protect the internet from laws and regulation. The first was by John Perry Barlow, law professor and co-founder of the Electronic Frontier Foundation, who disseminated "A Declaration of the Independence of Cyberspace." [1] Many characterized his polemic as elitist and utopic, but it was the start of the debate about whether the Internet could or should be governed. In 1999 a group of individuals, many from high tech companies, signed on to the Cluetrain Manifesto [4], which was a set of 95 principles to help "clueless" corporations understand a set of principles and dynamics they believed would determine the future experience of both individuals and institutions online. These principles were focused on a new empowerment of the individual by engagement on the Internet against the impersonal nature of large corporations.

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All of this is to illustrate the continuing debate and angst that surrounds the issue of Internet governance.

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In 2010 Jeff Jarvis put forward a Bill of Rights in Cyberspace [5]. In his introduction he stated,

On the one hand, I do not want government regulation of the Internet. On the other hand, I do not want monopoly discrimination against bits on the Internet. I see it as a principle that all bits are, indeed, created equal. But how is this enforced when Internet service is provided by monopolies? Regulation. But I don't want regulation. ...it has been said that regulation is a temporary necessity until the marketplace and technology open up Internet access to competition. In a competitive environment, we won't tolerate the ISP that hampers our service. Now, we're stuck. The other path to fixing this is legislation. But, of course, that is another form of regulation of the Internet: a claim of sovereignty by government over the net that I want to avoid. All this, I believe, is all the more reason to have a set of principles and standards we, the Internet nation, can point to, all the more reason to have a Bill of Rights for Cyberspace.

Most recently, in a March 2014 TED Talk, Tim Berners-Lee, founder of the World Wide Web, called for a Magna Carta for the Internet [2]. All of this is to illustrate the continuing debate and angst that surrounds the issue of Internet governance. It also supports the proposition that the U. S. Constitution could be the ideal model for developing a governance structure for cyberspace. When we consider some of the underlying issues of concern on the Internet today—privacy, free speech, security and law enforcement, copyright and intellectual property—we discover that the U.S. Constitution with its first ten amendments, the Bill of Rights, deals with all of them. Thus, the U. S. Constitution is not only an excellent model for establishing a governance structure for cyberspace, but it is also the ideal framework to use when teaching students about Internet policy issues.

Compared to the constitutions of many other nations, the U.S. Constitution is actually a very limited document, which is also the type of governance document that most would favor for cyberspace. It has been posited that the ideal cyberspace governance structure would do the following: 1) allow all stakeholders to have a voice through representation, 2) provide a way to balance the interests of states against the interests of non-governmental entities against the interests of corporations who are providing the technical infrastructure, and 3) have a self-correcting mechanism to foster continued growth and innovation on the Internet. These same characteristics of representation, balance of power, and self-correction through laws and amendments, describe the U. S. Constitution and make it the enduring governing framework that it is.

The advantage of a lawful approach to Internet governance is that the rule of law is the best way to guarantee equal protection for all stakeholders, including individuals, in cyberspace. The challenge for our time is to identify a modern set of "founding mothers and fathers" with the same sense of higher purpose that the original founding fathers had when they sequestered themselves during a sweltering summer in Philadelphia to create the U.S. Constitution. New founders are needed to produce a Cyberspace Constitution for the 21st century to insure that the internet is a secure, accessible place for all stakeholders. In my next column, I will explore alternative international perspectives to this serious challenge.

References

[1] Barlow, J. P. A Declaration of Cyberspace. (1996); https://projects.eff.org/~barlow/Declaration-Final.html Accessed 27 December 2014.

[2] Berners-Lee, T. TED Talk. (March, 2014); http://www.ted.com/talks/tim_berners_lee_a_magna_carta_for_the_web?language=en Accessed 27 December 2014.

[3] Easterbrook, F. H. "Cyberspace and the Law of the Horse." University of Chicago Legal Forum. v11 (1996): 207–8.

[4] Levine, R. et al. Cluetrain Manifesto. Cambridge, Perseus Books, 2000; See also http://www.cluetrain.com/ Accessed 27 December 2014.

[5] Jarvis, Jeff. Bill of Rights in Cyberspace, amended. (December, 2010); http://buzzmachine.com/2010/12/10/bill-of-rights-in-cyberspace-amended-2/ Accessed 27 December 2014.

[6] Lessig, Lawrence. Code: And Other Laws of Cyberspace. Version 2.0, (Basic Books, 2006).

[7] Lessig, Lawrence. "The Law of the Horse: What Cyberlaw Might Teach." Harvard Law Review (1999). v113: 501–46.

Author

C. Dianne Martin
Vice Provost for Faculty Affairs
The George Washington University
Washington, DC USA

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