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.