I’ll take a break from football blogging to adopt and extend Jacqui Lipton’s post about the continuing existence of something called “Cyberlaw.” I do not think that cyberlaw is dead; read, for example, Ann Bartow’s insightful review of Jonathan Zittrain’s recent book, which I noticed initially courtesy of a post by Rebecca Tushnet.
If cyberlaw isn’t dead, however, cyberlaw may be making us stupid. That argument is a subtext of Ann’s review, though she does not make that claim. The idea, to be clear, is that a continuing interest in and focus on cyberlaw leads scholars and practitioners to overlook important bigger questions of governance, and to miss the growing importance of governance at the intersection of putatively “online” and “offline” institutions, interests, and behaviors. Cyberspace used to look and feel like a different and separate place. It never really was separate, even if it had elements of difference, but the fiction of separateness helped scholars sort out the significance of its differences. Now, it seems to me, the more important project is integrative. Whatever we have all learned from exercises in cyberspace separateness and difference, how should those lessons be built into better, legitimate governance writ broadly? Cyberlaw, in other words, continues to focus on the trees; it’s time to focus on the forest.
Both the post title and the proposition expressed in that paragraph are prompted by my keeping track of Nicholas Carr and his recent book, The Shallows. The book follows a widely-known Neil Postman-esque essay that asked the question, “Is Google making us stupid?” Carr’s answer: Yes.
The picture emerging from the research [described in the book] is deeply troubling, at least to anyone who values the depth, rather than just the velocity, of human thought. People who read text studded with links, the studies show, comprehend less than those who read traditional linear text. People who watch busy multimedia presentations remember less than those who take in information in a more sedate and focused manner. People who are continually distracted by emails, alerts and other messages understand less than those who are able to concentrate. And people who juggle many tasks are less creative and less productive than those who do one thing at a time.
For an interesting recent dialogue regarding the question and the answer, take a look at WSJ Online essays by Carr, from which the above quotation is taken, and by Clay Shirky. If you know Shirky’s work, you will anticipate his response:
The case for digitally-driven stupidity assumes we’ll fail to integrate digital freedoms into society as well as we integrated literacy. This assumption in turn rests on three beliefs: that the recent past was a glorious and irreplaceable high-water mark of intellectual attainment; that the present is only characterized by the silly stuff and not by the noble experiments; and that this generation of young people will fail to invent cultural norms that do for the Internet’s abundance what the intellectuals of the 17th century did for print culture. There are likewise three reasons to think that the Internet will fuel the intellectual achievements of 21st-century society. [Shirky describes them.]
In other words, as I read Shirky he actually agrees with Carr. Shirky is simply more optimistic than Carr about the current moment being “trees” and the future being “forest.”
Carr caused a small stir recently when he suggested that some Internet text should be delinkified: links should be reserved to the end of an article, rather than embedded within it.
In the kerfuffle that followed that suggestion, I did not notice anyone making the obvious point that Carr was applying one of the core insights of cyberlaw studies: the essential plasticity of code, and from that starting point, the subjectivity of technology generally. The Internet has no core essence, pace Zittrain, though what some call its “generativity” is something that is often worth preserving. But generativity has costs as well as benefits. It is not heresy to suggest ways that the Internet might itself be made better, using the very flexibility that makes it work.
This may sound facetious, but I don’t intend it that way:
What we need is a Brainerd Currie for cyberlaw.
Many of the problems created by cyberlaw v. mundanelaw are amenable to an interests-based conflict of laws analysis, and reveal false conflicts in substance (to go along with the true conflicts in rhetoric!) at their respective cores. I’ve also found that putting cyberlaw issues into an {n+1}-jurisdictional conflicts framework helps illuminate, and indeed predict the future, of already-live disputes (example: The Pirate Bay).
The biggest problem with this approach is in defining the “interest” of cyberspace. But since defining the non-native jurisdiction’s interest fairly is always the biggest problem with interest analysis in any conflicts framework, I don’t believe that this is a unique problem.
I don’t think cyberlaw is making us stupid, though sometimes I feel like contrarian approaches to IT are stupid, insofar as they play into standard reactionary instincts: those darn kids with their newfangled [insert media]!
Carr isn’t doing that, but no doubt if he had said something closer to his examples, like “people can’t do two things at once” or “skimming through information isn’t the same as deep analysis,” the WSJ wouldn’t have put it on an Op-Ed page, and readers wouldn’t have had their buttons pushed (one way or the other).
The problem with cyberlaw — the problem with law & technology broadly — is that when technologies destabilize legal orders, it can be fairly trivial to spot the legal “news” but fairly difficult to do more than that.
So, e.g., internet jurisdiction problems, the Yahoo! France, Post/Johnson v. Goldsmith debate, are pretty central to cyberlaw studies. But what can cyberlaw say beyond spotting the nature of the jurisdictional problem? The internet problem is the tree. The forest is the philosophy of law.
To solve internet jurisdiction, you need to come up with a story about the state, legitimacy, due process, information regulation, technological regulation, etc., etc. The experts on those issues are not generally the people doing cyberlaw. The challenge, I think, is for cyberlawyer scholars to develop more depth in (non-cyberlaw) legal theory.
I just realized that Ann, in her review of Jon’s book, says the same thing more or less about cyberlaw, even starting with jurisdiction: “Laws concerning jurisdiction, privacy, free speech, copyrights, and trademarks often transmogrify into cyberlaw when they are invoked in an Internet context, but they exist and evolve offline too, which prevents their total capture by cyberlaw scholars.”
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