Governing Cyberspace: Law

As explained in the "Note to the Reader," this article is excerpted from Professor Post's forthcoming book, In Search of Jefferson's Moose: Notes on the State of Cyberspace (Oxford University Press, 2008). t David G. Post is the 1. Herman Stem Professor of Law at the Temple University Beasley School of Law, where he teaches intellectual property law and the law of cyberspace. He is also a Fellow at the Institute for Information Law and Policy at New York Law School, an Adjunct Scholar at the Cato Institute, and a regular contributor to the Volokh Conspiracy blog. See http://www.davidpost.com. He can be reached at David.Post@temple.edu. 884 SANTA CLARA COMPUTER & HIGH TECH. L.J. [Vol. 24 We hold these truths to be self-evident, that .... governments are instituted among men, deriving their just powers from the consent of the governed.... The present King of Great Britain... has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws .... I The inhabitants of the several States of British America are subject to the laws which they adopted at their first settlement, and to such others as have since been made by their respective Legislatures, duly constituted and appointed with their own consent. No other Legislature whatever can rightly exercise authority over them; and these privileges they hold as the common rights of mankind .... 2 I. A NOTE TO THE READER What follows is the penultimate chapter of a forthcoming book entitled In Search of Jefferson's Moose: Notes on the State of Cyberspace (Oxford, 2008). Because it wasn't written to be read on a stand-alone basis, it probably loses-at least, I hope it loses!something from being taken out of context, and a few words about where it stands in relation to the rest of the book would probably be helpful. The book looks at the Internet by following the outline of Jefferson's "Notes on the State of Virginia." A Prologue sets out the plan: to put Jefferson's ideas to work, to use them to help think about cyberspace, following his blueprint-asking the questions he asked about his complicated, strange place to help us understand ours: "Notes on the State of Cyberspace." Part I of the book ("Chaos") is a kind of natural history of the TCP/IP network what it is, how it works, and most particularly why and how it (rather than some other network) became "the Internet" i.e., why and how it got to be so big. An "Interlude" introduces the central problem of scale facing the Founders as they contemplated the growth of the new nation, the so-called Problem of the Extended Republic: How could a government remain true to "republican" principles that the governed rule their governors, and that ultimate I. THOMAS JEFFERSON, THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776). 2. Thomas Jefferson, Resolution of Albemarle County (July 26, 1774), in 2 THE WORKS OF THOMAS JEFFERSON 42, 43 (Paul Leicester Ford ed., 1904). GOVE'RNING CYBERSPACE: LAW power is lodged in the people themselves when spread over large territories and large numbers of people? Part II of the book ("Order") contains three chapters on law and governance: the first expands on Lawrence Lessig's now-familiar idea that "code is law" (and that institutions like the Internet Engineering Task Force are "law-makers") in cyberspace, the second focuses on ICANN and the scope of its law-making activities exercised via control over the Internet's naming system, and the third the one that follows on broader questions of jurisdiction and the law of virtual worlds. In addition, because the book is intended for a non-scholarly audience, you will forgive, I hope, the absence of the usual appurtenances of scholarly writing in this article. Finally, note that everything in italic type is quoted directly from Jefferson.