10 Big Pieces: Post, In Search of Jefferson’s Moose

In Search of Jefferson’s Moose: Notes on the State of Cyberspace
David G. Post
Oxford University Press, Oxford UK 2009

Summary

Post’s goal is to provide “a Jeffersonian natural history of cyberspace…. to explore, to try to understand something about the way life proceeds there, so that we can begin the process of imagining, and perhaps bringing into being, the new structures and institutions that can help us govern it wisely and well.” (18)

Post compares Jefferson’s demographic analysis of Virginia to the growth of the internet, noting that both displayed exponential growth for similar reasons: network effects resulting from an efficient point-to-point network for the transmission of information. He then uses a fundamental distinction between Jeffersonians (liberty, chaos, the many, diffusion, centrifugal thinking) and Hamiltonians (authority, order, the few, concentration, centripetal thinking) to frame a debate over “The Problem of the Extended Republic.” (108-110) Hamilton argued that scaling democratic government across a continent necessitated a strong central authority, while Jefferson argued that scaling could actually benefit a democratic structure.

Post frames the history of the West (and of the settlement of cyberspaces) as “Hamiltonians, though, inevitably make their way to Jeffersonian places (certainly once gold is discovered there!), claims of order and authority and power assert themselves, and struggles over the shape of the place begin in earnest.” (117) Similarly, Post borrows Lessig’s dichotomy of “East Coast Code:” statutes and regulations, and “West Coast Code,” software protocols, as the basis for an analysis of the governance of the internet.

From there, he discusses the governing rules and processes of the Internet Engineering Task Force, which functions on a combination of “rough consensus” and “running code:” testing changes by open engineering and political processes simultaneously. Noting that “the rules for a common global language were developed by consensus,” he concludes that Jefferson was right in hypothesizing that “consensus government can scale,” because of the especial legitimacy (citing Froomkin on Habermas) of the IETF’s open processes, compared with similar efforts by the UN using traditional, closed, bureaucratic decsionmaking in its Open Systems Initiative. (139-140)

He analyzes ICANN’s “Uniform Dispute Resolution Policy” as a body of law, or quasi-law as the basis for a discussion of theories of internet jurisdiction, here contrasting Unexceptionalists (e.g., Easterbrook) who reduce internet law questions to matters of underlying state jurisdiction, and Exceptionalists who regard the internet as a realm unto itself, calling for a coalition around the notion of “bring[ing] law to the inter-network community while preserving the diversity of values and viewpoints that characterize the global community.” (170)

He argues that the current Unexceptionalist system of competing jurisdictions fails as law, in that it is impossible “for the participants in any transaction to know, in advance, what the law governing the transaction might turn out to be.” His solution is self-governing communities on the Internet deciding for themselves what rules to apply to their own conduct. (184-5)

Critique and Analysis

Post’s strength is in examining law as a technology in itself –a set of tools for solving specific problems in specific circumstances. This view is utterly foreign to many writing about law and politics, who attempt to find timeless, universal solutions. Grounding this view in a close reading of Jefferson’s work solidifies Post’s case: the analogy between the search for new solutions of governance in the unique circumstances of the early United States and that of the internet is a strong one in many ways. I would have preferred a more extensive description of the counter-argument, but the work is short and the citations extensive.

Utility

Post’s standards converge with those of Sclove and Sicart, while staying closer to the workings of the underlying technological processes of governance than either author. While his treatment of the counterarguments is brief, he presents them more openly (and with vastly better citations) than other authors: a cogent case for using strong democratic design processes to develop a game of strong democratic design processes will need to come to grips with Hamiltonian and Unexceptionalist arguments, and Post will be the gateway to addressing them.