The Challenge(s) of Cyberlaw1

David G. Post2

Many years ago, when I was a practicing physical anthropologist, I spent a couple of

years watching and studying a group of yellow baboons in the Amboseli National Park in Kenya.

My research was focused on the baboons’ feeding and ranging behavior: what they ate, where

they went to find the right food, how they decided to go one place rather than another, how

they knew which food was “right” and which “wrong,” and, ultimately, whether there was any

demonstrable relationship between the various things they ate and their survival and

reproduction. I was very fortunate to be taken in by a group of scientists from the University of

Chicago who had, several years before, set up a research station in the park, one that they were

hoping (successfully, as it turned out) to continue to operate for purposes of long-term study of

this baboon population. Very wet behind the ears, I went to join them for my first summer in

the field, and one of them, a fellow by the name of Glenn Hausfater, was assigned the task of

orienting me, of helping me get my bearings in a new and very strange environment. I ended

up spending the first three or four weeks that I was there just following Glenn around as he did

his work. Glenn was studying “dominance” relationships – basically, who had sex with whom,

when, how often, and how that did, or did not, reflect other social relationships (including

family relationships) within the group. It was incredibly interesting stuff (and Glenn went on to

write a fascinating and pioneering monograph on the subject3). One afternoon, while I was still

following him around, he was describing, into a tape recorder, a particularly spectacular

kerfuffle that had broken out among a number of the animals in the group – complete with

chasing and hiding and sex and screeching and screaming and bared canines and all the rest –

after which he turned to me and said: “Why in heaven’s name would anybody study anything

else?”

1 This paper was presented as the Keynote Address at the “Bits Without Borders” conference at Michigan State University College of Law, Sept. 24, 2010.2Professor of Law, Beasley School of Law, Temple University.David.Post@Temple.edu. Comments welcome.3GLENN HAUSFATER, DOMINANCE AND REPRODUCTION IN BABOONS (PAPIO CYNOCEPHALUS): A QUANTITATIVE ANALYSIS(1975).

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I know how he felt; I sometimes feel the same way, these days, when talking to

colleagues working in other sub-fields of the law.

Having now been working in “cyberlaw” since before there really was a “cyberlaw,” I

thought that this would be a good time to take stock of where we’re at, as a field – on what

we’ve learned over the past 15 years, and what we need to be thinking about over the next 15.

It’s horribly presumptuous of me – I realize that nobody appointed me the official rapporteur

for cyberlaw. But I’m counting on a friendly crowd here, one that will forgive me if I step out of

line a little, and one that will at least consider (even if ultimately rejecting) what I have to say.

I’ll try to be as brief as possible; I don’t want to interrupt the conversations around the tables,

having attended my share of conferences where the keynote speech turns out to be

considerably less interesting and informative and enlightening than the table-talk.

One more baboon story, if I may. When I was working, many years later, on my book

about Thomas Jefferson and the Internet,4 I had occasion to return to a number of the debates

and controversies that had so pre-occupied me, back in the late ‘70s and early ‘80s, in

evolutionary biology and animal behavior. Nothing was more interesting to Jefferson than the

natural laws governing the distribution and growth of animal and plant populations –

“biogeography,” we’d call it today – and it seemed important to me, in trying to understand his

ideas, to understand where they stood in relation to what we now know about the distribution

and growth of animal and plant populations. And when I did so, I realized that, over the

previous 25 years or so, those fields (biogeography, evolutionary biology, animal behavior) had

made real and impressive strides. Some disputes that had been central to the fields had been

resolved; ideas that had been disputed, or marginal, or simply too heterodox to be admitted

into the “central canons” of the fields, were, by 2005, firmly entrenched in the groundwork;

other more widely-accepted notions had, by 2005, been cast aside.5 Controversies had been 4DAVID G. POST, IN SEARCH OF JEFFERSON’S MOOSE: NOTES ON THE STATE OF CYBERSPACE (2009).5 The notion, for instance, that you could use evidence of the differences in DNA sequences between two living species as a means to assign a specific date to the time of their evolutionary divergence – in other words, that DNA evolution could function as a kind of evolutionary clock – deeply divided the physical anthropology and evolutionary biology communities in 1975, but was a widely-accepted technique by 2005. Even more dramatically, Robert May’s challenge to an assumption that had been taken entirely for granted for decades – the assumption that complex ecosystems (like rainforests) are stable because they are complex, that complexity somehow breeds stability – published in his 1974 book on “complexity and stability in model ecosystems,” had not yet been digested by 1980; indeed, I recall that many of us, to be candid, found May’s work entirely indigestible and

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resolved – spawning new controversies, of course, but different ones.6(And all by means of the

extraordinary-when-you-think-about-it process involving thousands, sometimes hundreds of

thousands, of researchers and scientists all around the globe, arguing with each other).

Progress in the study of legal systems is probably inherently less straightforward than in

the physical or biological sciences; it’s easy to see how the astronomers, or physicists, or

biologists of today know more than Galileo or Newton or Pasteur knew about the structure of

their universe, but I’m really not at all sure that we know more about the fundamental

structure of law and legal systems than, say, Cicero, or Holmes, or (one of Jefferson’s favorites)

Pufendorf. But we have made some progress; I think the things that will occupy us for the next

15 years are different than the things that occupied us for the last 15 years precisely because

we have made progress on some fronts.

Here, then, is my take on what we have yet to sort out in this field, the big challenges

that we should be thinking about for the next while.

Challenge 1

Challenge 1 will not come as a surprise to those who’ve read In Search of Jefferson’s

Moose: We need to think harder, and better, about the principles governing the way law

scales.

Whenever I say that, I expect to see raised eyebrows and even uncomprehending stares:

“Principles governing the way law scales”? That’s precisely the problem; we don’t even have a

vocabulary to ask the questions or to talk about the issue beyond a few very obvious points

(which I’ll now make), and yet there may be nothing more important in understanding the

fundamental nature of Internet legal problems than understanding their scale.

incomprehensible. Fast forward thirty years, and his ideas have become canonical – not only have they been absorbed into the study of animal and plant populations, but they have helped spawn a number of new sub-fields (chaos theory, complexity) entirely unknown in 1980.6 The process by which this occurs is rather astonishing, and worth marveling at, if only for a moment; that thousands, or even hundreds of thousands, of scientists around the globe, communicating with one another by means of journal articles, conference presentations, letters, email, and all the rest, can somehow reach a rough consensus on basic and contested questions about how the world actually works is something that we’d probably deem impossible were it not for that fact that it happens so often.

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James Grimmelmann put it wonderfully well: “The Internet is sublimely large; in

comparison to it, all other human activity is small.” He continues:

It has more than a billion users, who’ve created over two hundred million websites with more than a trillion different URLs, and who send over a hundred billion emails a day. American Internet users consumed about ten exabytes of video and text in 2008—that’s 10,000,000,000,000,000,000 bytes (that’s 10-with-18-zeroes-after-it bytes). Watching all the videos uploaded to YouTube alone in a single day would be a full-time job—for fifteen years. The numbers are incomprehensibly big, and so is the Internet.7

We’re operating at a scale here that is orders of magnitude larger than anything that has

ever come before it in human experience. That’s what I learned from all that Jefferson stuff:

not (obviously)that the Internet is big, but that it really matters that it’s big, that an

understanding of size and scale will help us understanding the new conditions in the world

we’re living in here.

Size and scale, after all, is why the Internet is “the Internet” – it’s not big because it’s

“the Internet,” it’s “the Internet” because it’s big. There’s a reason we’re here at this

symposium talking about Internet law and not Ethernet law, or Novell Netware law, or X.25

law, or OSI law, or IBM SNA law . . . . It is because it was the Internet – one network among

many, the one built around TCP/IP – and not any of the others that got to be so big, so fast.

Does this matter for our understanding of law and policy and regulation? How could it

not matter? It’s not just a fact about the place, it’s a constitutive fact about the place and must,

inevitably, affect the law there. The question of whether and how law operates at this scale is a

very serious one, and yet we spend hardly any time thinking about it, because we have no

framework or vocabulary to do so. We need one, badly.8

It would be astonishing if, say, the copyright law created in the early 1970s were able to

cope at this new scale; that would be like expecting a bridge built to carry 1000 vehicles an hour

to carry 10 billion vehicles an hour. It might work – but I’m not driving over that bridge until

7 James Grimmelmann, The Internet is a Semicommons,78 FORDHAM L. REV 2799, 2803 (2010).8I should pause here to acknowledge Peter Swire’s pioneering early cyberlaw paper, Of Elephants, Mice, and Privacy: International Choice of Law and the Internet, 32 INT'L LAW. 991 (1998), which was very much a push in this direction.

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the engineers (who do, incidentally, understand a great deal about scale and scaling) tell me

that it’s OK.

And in fact, of course, the copyright law created in the early 1970s doesn’t cope at this

new scale. I assume this point doesn’t need a great deal of elaboration for this crowd (though if

you think I’m wrong about that assumption, we can talk about that, too, afterwards). In the

time since I began this talk twenty minutes ago, tens of millions – possibly billions, for all we

know – of new copyright-protected works were created on the Net. That’s how copyright law

works these days; copyright protection begins the moment a work is created, without the

necessity of the author doing anything: no registration, no copyright notice, no deposit with

the Library of Congress, no nothing.9 Every blog posting, every email message, every Photoshop

file, every word document, every video or mp3 file, etc. etc. – created anywhere on the planet10

in the last 20 minutes has copyright rights already attached to it.

And every time one of these 22.4 million, or 2.7 billion, copyrighted works created in the

last 20 minutes is reproduced, an infringement has occurred – possibly excused by some

exception or defense, but infringing unless excused. Now, the reproduction of information is

fundamental to the Internet’s very existence – part of its nature, of the way things are, on this

Internet. You don’t have an Internet – at least, not this Internet -- without the reproduction of

information on a vast scale. The Internet doesn’t really do anything other than reproduce

information. That’s how it does its job – that is its job, getting information from one corner of

the network to another. Each step, a reproduction and a transmission; each step,

presumptively infringing, a violation of the copyright holder’s rights.

So now we’re talking about truly colossal numbers, as the billions upon billions of

copyrighted works created every hour of every day fly around the Internet, getting reproduced

and transmitted billions and billions of times – each work protected, each reproduction

presumptively infringing.

9See 17 U.S.C. §§102(a) (“Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression . . .”), 101 (setting forth that a work is “created” when it is “fixed . . . for the first time”), and 302(a) (setting forth the general rule that copyright in a work “subsists from its creation”). Requirements for copyright registration and copyright notice were eliminated as part of the accession of the United States to the Berne Convention on Literary Property in 1989. 10See 17 U.S.C. §104.

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Those are very odd rules to have, in a place where original works of authorship are

being created and reproduced in such unimaginable numbers. You couldn’t keep track of 20

minutes worth of copyright ownership and infringement questions, of who owns what and

whose rights are being violated by which acts, on the Internet if you wanted to – there’s no

processor big enough or powerful enough to keep track of it all, not at this scale, with these

numbers.11I think it is self-evident that these are not the rules we’d choose if we were starting

fresh, writing copyright law that makes sense for this place, for the Internet – making every act

of reproducing and transmitting every file presumptively a violation of someone’s already-

existing rights. It is a system that will be not just difficult, but impossible, to keep track of. Why

in heaven’s name would we start there?

Those are, however, the rules we have inherited, and those rules don’t scale. However

well suited they may have been to the world of atoms, they’re ill-suited for the networked

ecosystem of bits, because they don’t scale. The amount of processing you would need to

manage this system is beyond imagining, truly astronomical; you’d need decades to keep track

of the copyright implications of an hour’s worth of activity on the Internet. Why would we, if

we were starting fresh, set the system up that way?

It’s not, you may be thinking, aterribly profound point; so there are lots and lots and lots

of copyright-implicating transactions, every second. Well, it’s not a terribly profound point until

the bridge falls down.

How are we to get copyright law to scale? That’s a good question12 – but we don’t yet

have good ways of talking about that, because we don’t yet understand much about the

principles by which law scales, so we don’t know what we’re looking for or how to talk

intelligently about it.

11 For another example (thanks to Lawrence Lessig) of the failure of copyright law to scale, take a look at the video REMIX: buy the remix, posted at http://www.lessig.org/blog/2009/03/remix_buy_the_remix.html (also available at http://www.youtube.com/watch?v=tprMEs-zfQA). Clearing the rights to create this work would take hundreds, perhaps thousands, of hours (if it could be accomplished at all), requiring tracking down the copyright owners of each of the sound recordings and musical works and audiovisual works mashed together in the final product – longer, almost certainly, than it took to create the work itself. (I thought copyright was supposed to empower creators?) Multiply that inefficiency by 100 million (or so). Every day.12 See Annemarie Bridy, Is Online Copyright Enforcement Scalable?,13 VAND. J. ENT. & TECH. L. 695(2011).

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(And speaking of scale, one other point: Of all the astonishing things about the Net –

and there are many – perhaps the most astonishing is the way in which its fundamental

governing rules and protocols were developed. Talk about scaling! Who, in 1980, say, would

believed that you could successfully complete what is by far the largest international

engineering project of all time by allowing “rough consensus” to govern the design process!

That you could allow anyone on earth to participate who was interested in participating, and

reach agreement on the governing rules?! It’s astonishing that it worked – and I regard it as

just an incidental benefit that what they came up with looks more like the Brooklyn Bridge, in

its beauty and simplicity, than like, say, the FBI Building in Washington DC).

Challenge 2

Challenge 2 has a pretty ugly name, but it’s deeply important. It’s what Paul Schiff

Berman calls “jurisdictional hybridity.”13We live in a world, Berman writes in his forthcoming

book Law Beyond Borders: Jurisprudence for a Hybrid World, “where a single act or actor is

potentially regulated by multiple legal and quasi-legal regimes”:

Law often operates based on a convenient fiction that nation-states exist in autonomous, territorially-distinct, spheres and that activities therefore fall under the legal jurisdiction of only one legal regime at a time. Thus, traditional legal rules have tied jurisdiction to territory: a state could exercise complete authority within its territorial borders and no authority beyond it. In the twentieth century, such rules were loosened, but territorial location remains the principal touchstone for assigning legal authority. . . .

But a simple model that looks only to territorial delineations among official state-based legal systems is now simply untenable (if it was ever useful to begin with). Thankfully, debates about globalization have moved beyond the polarizing question of whether the nation-state is dying or not. But one does not need to believe in the death of the nation-state to recognize both that physical location can no longer be the sole criterion for conceptualizing legal authority, and that nation-states must work within a framework of multiple overlapping jurisdictional assertions by state, international, and even nonstate communities.

13See, e.g., Paul Schiff Berman, From International Law to Law and Globalization, 43 COLUM. J. TRANSNAT'L L. 485 (2005), Paul Schiff Berman, Towards a Cosmopolitan Vision of Conflict of Laws: Redefining Governmental Interests in a Global Era, 153 U. PA. L. REV. 1819 (2005); and Paul Schiff Berman, The Globalization of Jurisdiction, 151 U. PA. L. REV. 311 (2002).

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Each of these types of overlapping jurisdictional assertions creates a potentially hybrid legal space that is not easily eliminated.14

This one looks a lot more familiar than the challenge of legal “scale.” Indeed, we’ve

talked about this one for years, perhaps talked it to death – why, it’s our old friend the Yahoo!

case!

That we have been talking about the problem so much – in the law reviews,15 in the

casebooks, in the blogs, in our classrooms and seminar halls – should not, however, lead us to

conclude that we have actually solved it. I think we all would admit that we have not done so. I

think we all say the same thing when our students ask, as they inevitably do, the simple, but

hard, question: what law, or whose law, applies here? We say: “Well, that’s a really

complicated question. . . .”

It’s a complicated and a genuinely difficult problem, because the questions at its core

are not merely the ones (difficult enough) that ask: “Who can obtain a legal remedy in this

circumstance? In what courtroom? Under what law?”; rather, they are also the ones that ask

“How do people interacting in this strange new way use ‘law’ to order their behavior and their

lives online? What kind of ‘law’ is it, and how does it get made?” To pretend that we have put

that problem to bed – that we can wave our magic lawyer’s wand and make it go away –

doesn’t actually do so, and it diminishes the very richness and profundity of the problem to

pretend that it does.

That is not to say, though, that we haven’t made real progress towards unraveling it. I

think that the conversation we’ve been having over the last 15 years on this score has been a

very valuable one – maybe I have to think that, given that I was a participant in it. But I do think

that at this point, we can say: We are all Exceptionalists, and we are all Un-Exceptionalists.16

No, the Internet is not a separate space, independent of the rest of the world as we know it, in

which law will somehow spontaneously emerge to solve all problems. But neither is the

14PAUL SCHIFF BERMAN, LAW BEYOND BORDERS: JURISPRUDENCE FOR A HYBRID WORLD (forthcoming 2011) (on file with the author).15A search of the Lexis “Law review” database turns up 312 hits for the terms “(LICRA or Ligue) & Yahoo & Internet & jurisdiction.”16See David G. Post, Against ‘Against Cyberanarchy’,17 BERKELEY TECH. L.J. 1365 (2002) (characterizing the two sides of the Yahoo! debate as “Unexceptionalist” and “Exceptionalist”); cf Thomas Jefferson , First Inaugural Address (March 4, 1801) (“We are all Republicans, we are all Federalists”).

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Internet just like smoke signals, or the telephone, or the telegraph, and its legal and regulatory

problems cannot all be crammed into existing pigeonholes developed to handle these earlier

technologies. No, the hybridity problems the Internet presents to us are not entirely new;

they’ve been slowly developing over the last 200 years or so, and we do have tools, legal and

analytic, to bring to bear on them. But they have new features and present new problems, on

the Net, if only because here they are operating at a different scale, a different order of

magnitude; they’ve exploded in a way that we’ve never had to deal with before.

The answers surely lie somewhere in between the polar Exceptionalist and

Unexceptionalist positions. That makes it something of a mess, to be sure, with participation

from State and non-State actors, extra-territorial assertions of law coming from many quarters,

complex and evolving international norms and customs, difficult problems of personal

jurisdiction, etc. all playing a role; but it’s a mess we must sort out if we are to truly understand

the role that law plays and will play in Internet interactions.17

Challenge 3

Challenge 3 also has an unfortunate label – but I do hope that we can get past the label

to the very important principles underneath. Because the label may be so off-putting to you, so

encumbered by baggage (whether necessary or unnecessary baggage, I’m not sure) I won’t tell

you what it is quite yet; let me first try to describe the idea, and why I think it matters.

Let me start with an observation the great Lon Fuller made many years ago, an

observation I like so much I’ve put it somewhere in probably half the things I’ve ever published.

Fuller wrote, at the end of a discussion of the future of international law:

“[L]ike many other precious human goals, the rule of law may best be achieved by not aiming at it directly. What is perhaps most needed is not an immediate expansion of international law, but an expansion of international community, . . .

17 A number of the contributions to this Conference suggest that some have already begun taking up this challenge of finding a new and more nuanced framework for discussing these “hybridity” problems. The HavenCo – Sealand story in James Grimmelmann’s telling is a good deal more interesting than the cartoonish “Exceptionalism runs Amok” story that most of us were content with during the early stages of the discussion. See James Grimmelmann, Michigan State University College of Law “Bits without Borders” Conference:Sealand and Havenco: A New Interpretation(Sept. 24, 2010). And the efforts to deal with the implications of the “cloud” for law and regulation,see supra Anupam Chander, Law in the Cloud and Daniel Gervais, Culture, Cloud(s), and IP, similarly suggest the directions that this new scholarship could take us.

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When this has occurred – or rather as this occurs – the law can act as a kind of midwife; or, to change the [metaphor], the law can act as a gardener who prunes an imperfectly growing tree in order to help the tree realize its own capacity for perfection. This can occur only when all concerned genuinely want the tree to grow, and to grow properly. Our task is to make them want this.

What did he mean? And what does it have to do with what we’re doing? The tree can

“realize its own capacity for perfection,” but only when “all concerned genuinely want it to

grow properly,” and our task is “to make them want this.” ?

What it means, to me, is this: Our task, as lawyers and law professors and “experts” on

these difficult matters, is not to solve the many problems bedeviling “Internet law” – problems

of scale, of hybridity, and the many others that are lurking out there. Rather, our task is to help

others to think about those problems and to galvanize them into doing so, to make them want

the tree, as it were, to grow properly. If the Internet and its law – whatever that is, and

whomever is responsible for making it in its many forms – is to evolve sensibly (whatever we

may mean by that), everyone with a stake in it needs to care about it, and to attend to it – to

give a damn, and to set the wheels in motion whereby sensible law might – might – get made.

That happens, I’d suggest, when people start to think of themselves as “citizens” of this

new place, this “imagined community.” Because that is what citizens do: they care – they have

standing to care, a kind of entitlement to care – about events, especially legally significant

events, transpiring in faraway places, because those events affect them as citizens of a common

place. People may, of course, care about events affecting others with whom they do not share

the bond of citizenship – about floods in Pakistan, and war in Darfur, and repression in Iran –

but they care about those things in a different way, a non-participatory way.

And the other thing that citizens do is they defend their place when it is threatened or

under attack.

I think, in short, that our task is to somehow help people to think of themselves as

“Netizens.” There – I’ve said it.

Like a lot of good ideas (and, I suppose, a lot of bad ones, too), this one will prove easy

to ridicule, especially in its more ridiculous formulations. But we should resist the temptation.

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Just to be clear, here’s what I don’t mean by it. I don’t mean that we will or should cast off the

shackles of this earthly existence, renounce our citizenship in the dinosaur-like nation-states we

have been bequeathed, and begin building the New Jerusalem online. And I don’t mean that

we should consider ourselves citizens of the Net in lieu of, or in contrast to, or in conflict with,

our status as citizens of the United States (or France, or Brazil, or wherever).

That’s not what being a Netizen means. What it does mean is that we are all now

members of a global community with a very specific, very particular shared interest in the

health and well-being of this network, and that we should begin thinking and acting as such;

that we all have a stake, along with all the other members of that community, equally, in what

happens on and to that network, and that we have a right, and possibly even a duty, to find

ways to participate in shaping and governing it so that it remains as vibrant and open as we

want it to be (whatever we collectively think that means).

Citizenship on the Net will not look exactly like citizenship in real space, but something

new – a kind of fragmented citizenship for a fragmented world. I’m not entirely sure what it

does look like – but I think that’s for us to figure out, over the next decade or so.

The idea actually has been around for awhile, and has a pretty distinguished pedigree,

though it’s been in a kind of hiding.

Larry Lessig’s Code and Other Laws of Cyberspace was surely a book – perhaps the book

– that helped lay out the roadmap for the first 15 years of scholarship and analysis in cyberlaw;

we all read it, and we all took from it the (important) idea that “code is law,” and all that

entails. But less-commented upon was the idea Lessig advances at the very end of Code, where

he tells the story of Daniel Webster who, in the midst of the fight over the Missouri

Compromise, made a speech on the Senate floor in which he began with the words: “Mr.

President, I wish to speak today, not as a Massachusetts man, nor as a Northern man, but as an

American . . .” Lessig wrote:

When Webster said this – in 1850 – the words ‘not a Massachusetts man’ had a significance that we are likely to miss today. To us, Webster’s statement seems perfectly ordinary. . . . But these words came on the cusp of a new time in the United States. They came just at the moment when the attention of American

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citizens was shifting from their citizenship in a State to their citizenship in the nation. Webster spoke just as it was becoming possible to identify yourself, apart from your State, as a member of a nation. . . .

It is easy to forget these moments of transformation, and even easier to imagine that they have happened only in the past. . . . We stand today just a few years before where Webster stood in 1850.We stand on the brink of being able to say, ‘I speak as a citizen of the world,’ without the ordinary person thinking, ‘What a nut.’ We stand just on the cusp of a time when ordinary citizens will begin to feel the effects of the regulations of other governments, just as the citizens of Massachusetts came to feel the effects of slavery and the citizens of Virginia came to feel the effects of a drive for freedom. . . .

As we, citizens of the United States, spend more of our time and money in this space that is not part of any particular jurisdiction but subject to the regulations of all jurisdictions, we will increasingly ask questions about our status there. We will begin to feel the entitlement Webster felt, as an American, to speak about life in another part of the United States. For us, it will be the entitlement to speak about life in another part of the world, grounded in the feeling that there is a community of interests that reaches . . .into the hearts of ordinary citizens. What will we do then? When we feel we are part of a world, and that the world regulates us? What will we do when we need to make choices about how that world regulates us, and how we regulate it?”18

Jonathan Zittrain sounds much the same theme in his recent book – again, at the very

end:

The deciding factor in whether our current infrastructure can endure will be the sum of the perceptions and actions of its users. . . . Our fortuitous starting point is a generative device in tens of millions of hands on a neutral Net. To maintain it, the users of those devices must experience the Net as something with which they identify and belong. We must use the generativity of the Net to engage a constituency that will protect and nurture it.19

And still more recently, Rebecca Mackinnon has taken up this charge. We need, she

writes, to be asking questions like these:

What do people need to know in order to be informed participants in shaping the future of our global network? What do people need to know in order to determine what their own interests are within the network, and to understand who and what is affecting those interests either negatively or positively? What do people need to know in order to figure out what kind of Internet they want? What do people need to know in order to understand and debate what is possible? What do people need to know about the

18LAWRENCE LESSIG, CODE AND OTHER LAWS OF CYBERSPACE226 (1999).19JONATHAN ZITTRAIN, THE FUTURE OF THE INTERNET – AND HOW TO STOP IT246 (2008).

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players, institutions, companies, and politics so that they can figure out how they as citizens of the network can take action?"20

Those are really hard questions, hard enough so that I’m not even sure I can envision

the shape the answers might take. But I believe that our progress over the next decades will be

measured by our ability to help the people of the world find answers to them. And, like my

colleague Glenn Hausfater said – why in heaven’s name would anyone want to work on

anything else?

20Rebecca McKinnon, In Search of Internet Freedom,RCONVERSATION(May 20, 2010, 2:46 PM), http://rconversation.blogs.com/rconversation/2010/05/in-search-of-internet-freedom.html. Similar sentiments are expressed in The Internet Human Rights Declaration Issued by 15 Chinese Intellectuals,GFW BLOG (Oct. 26, 2009, 10:03 PM) http://www.chinagfw.org/2009/10/blog-post_1344.html(translation available at http://rconversation.blogs.com/rconversation/2009/10/happy-internet-human-rights-day.html):

“We acknowledge the arrival of netizen activism and regard it as an irreversible trend. . . . We believe it is a citizen’s responsibility to be concerned about public affairs, and a netizen’s responsibility to care about freedom of speech on the Internet. Netizens are exercising their civil rights when they legally express their opinions or when they report the truth of what has actually happened. The best way to rejuvenate an ancient civilization is to inject it with new core values based on the advancement of happiness and of basic human rights for individuals. It is also the best way to improve well-being for everyone in China. For these reasons, freedom of speech on the Internet should be encouraged, nurtured and tolerated.”

See also Center for Democracy & Technology, The Defense and Celebration of the Online Commonwealth, http://petition.cdt.org/ (last visited April 27, 2011).

David G. Post, The Challenge(s) of Cyberlaw Page 13