Cyber-Libertarianism: The Case For Real Internet Freedom (Ver 1.0 - Thierer & Szoka)

01000111011010010111011001100101001000
Cyber‐Libertarianism (Ver. 1.0) Thierer & Szoka
00011011010110010100100000011011000110
10010110001001100101011100100111010001

11100100100000011011110111001000100000

01100111011010010111011001100101001000

00011011010110010100100000011001000110
Cyber‐Libertarianism
010101100001011101000110100000100001
The Case for Real Internet Freedom

01000111011010010111011001100101001000
Version 1.0 ‐ Summer 2009

00011011010110010100100000011011000110
Adam Thierer & Berin Szoka

10010110001001100101011100100111010001
11100100100000011011110111001000100000

01100111011010010111011001100101001000
00011011010110010100100000011001000110
010101100001011101000110100000100001
01000111011010010111011001100101001000
00011011010110010100100000011011000110
10010110001001100101011100100111010001
11100100100000011011110111001000100000
01100111011010010111011001100101001000
00011011010110010100100000011001000110
010101100001011101000110100000100001
01000111011010010111011001100101001000

1
00011011010110010100100000011011000110
CYBER‐LIBERTARIANISM:
THE CASE FOR REAL INTERNET FREEDOM
by
Adam Thierer & Berin Szoka
(Ver. 1.0 – Summer 2009)
We are attempting to articulate the core principles of cyber‐libertarianism to provide the public
and policymakers with a better understanding of this alternative vision for ordering the affairs
of cyberspace. We invite comments and suggestions regarding how we should refine and build‐
out this outline. We hope this outline serves as the foundation of a book we eventually want to
pen defending what we regard as “Real Internet Freedom.”
TABLE OF CONTENTS
I. What is Cyber‐Libertarianism? ....................................................................................................... 3
A. Definition of Cyber‐libertarianism .................................................................................................... 3
B. Application in Social & Economic Contexts ....................................................................................... 3
C. How “Code Failures” Are to Be Addressed ....................................................................................... 3
D. General Relationship to “Internet Exceptionalism” .......................................................................... 4
II. The Intellectual Foundations of Cyber‐Libertarianism .................................................................... 4
A. Traditional Libertarian Philosophy .................................................................................................... 4
B. Modern Cyber‐Libertarian Theorists................................................................................................. 4
C. Internet Exceptionalists [see Sec. IV below] .................................................................................... 4
III. The Contrast with Cyber‐Collectivism............................................................................................. 5
A. Cyber‐Collectivism Defined ............................................................................................................... 5
B. General Relationship to “Information Commons” Movement ......................................................... 5
C. Exponents of Cyber‐Collectivism ...................................................................................................... 5
IV. Relationship between Cyber‐Libertarianism & Internet Exceptionalism ......................................... 6
V. Cyber‐Libertarianism’s Early Legal Foundations & Victories ........................................................... 7
VI. Applications: How Cyber‐Libertarians Think about Various Policy Issues ........................................ 7
VII. Prospects for Cyber‐Libertarianism ................................................................................................ 8
A. The Pessimistic View ......................................................................................................................... 8
B. The Optimistic View .......................................................................................................................... 8
VIII. Related Reading on Cyber‐Libertarianism & Internet Exceptionalism ........................................ 8

2

I. WHAT IS CYBER‐LIBERTARIANISM?
A. Definition of Cyber‐libertarianism
Cyber‐libertarianism refers to the belief that individuals—acting in whatever capacity they
choose (as citizens, consumers, companies, or collectives)—should be at liberty to pursue their
own tastes and interests online.
Generally speaking, the cyber‐libertarian’s motto is “Live & Let Live” and “Hands Off the
Internet!” The cyber‐libertarian aims to minimize the scope of state coercion in solving social
and economic problems and looks instead to voluntary solutions and mutual consent‐based
arrangements.
Cyber‐libertarians believe true “Internet freedom” is freedom from state action; not freedom
for the State to reorder our affairs to supposedly make certain people or groups better off or to
improve some amorphous “public interest”—an all‐to convenient facade behind which
unaccountable elites can impose their will on the rest of us.
B. Application in Social & Economic Contexts
The cyber‐libertarian draws no distinction between social and economic freedom when
applying this vision:
• Social Freedom: Individuals should be granted liberty of conscience, thought,

opinion, speech, and expression in online environments.
• Economic Freedom: Individuals should be granted liberty of contract, innovation,
and exchange in online environments.
Cyber‐libertarians also argue that social and economic freedoms are inextricably intertwined: It
is not enough to support liberty of action in one sphere; foreclosing freedom in one sphere will
eventually affect freedom in the other.
C. How “Code Failures” Are to Be Addressed
The cyber‐libertarian believes that “code failures” (the digital equivalent of so‐called “market
failures”) are better addressed by voluntary, spontaneous, bottom‐up, marketplace responses
than by coerced, top‐down, governmental solutions. From a practical perspective, the decisive
advantage of the market‐driven approach to correcting code failure comes down to the rapidity
and nimbleness of those responses. Stated differently, cyber‐libertarians have a strong
aversion to the politicization of technology issues and efforts to replace market processes with
bureaucratic processes.
Importantly, the cyber‐libertarian defines “markets” broadly to include monetary and non‐
monetary transactions as well as proprietary and non‐proprietary modes of production. To be
clear, collaborative, non‐proprietary technologies and efforts (e.g., Wikipedia and open source
software) are not at odds with cyber‐libertarianism. But the cyber‐libertarian does reject the
notion these models are the only acceptable model or that they should be imposed on us by
law. The proper policy position with regards to the “open vs. closed” or “proprietary vs. non‐
3

proprietary” debate should be one of techno‐agnosticism. Lawmakers and courts should not be
tilting the balance in one direction or the other.
More generally speaking, instead of seeking to define or impose a single utopian vision, the
cyber‐libertarian seeks to enable what libertarian philosopher Robert Nozick called a “Utopia of
Utopias:” a framework within which many different models of organizing commerce and
community can flourish alongside, and in competition with, each other.
D. General Relationship to “Internet Exceptionalism”
Internet exceptionalists are first cousins to cyber‐libertarians: They believe that the Internet
has changed culture and history profoundly and is deserving of special care before
governments intervene. [See Section IV for an expanded discussion.]
II. THE INTELLECTUAL FOUNDATIONS OF CYBER‐LIBERTARIANISM
A. Traditional Libertarian Philosophy
• Natural Rights philosophers –John Locke, Ayn Rand, The Founders
• Utilitarian philosophers – John Stuart Mill (On Liberty), Herbert Spencer
• “Austrian School” of Economics – Ludwig von Mises, F.A. Hayek, Murray Rothbard
• Milton Friedman (Free to Choose)
• Robert Nozick – argument for a minimalist state; “utopia of utopias” notion
• Thomas Sowell – critique of “The Vision of the Anointed”
• Richard Epstein – vision of “Simple Rules for a Complex World”
B. Modern Cyber‐Libertarian Theorists
• Ithiel de Sola Pool (Technologies of Freedom)
• Alvin Toffler (The Third Wave, Future Shock)
• George Gilder (Microcosm, Telecosm)
• Peter Huber (Law & Disorder in Cyberspace)
• Tom W. Bell
• Technology Liberation Front bloggers
C. Internet Exceptionalists [see Sec. IV below]
• Nicholas Negroponte (Being Digital)
• John Perry Barlow (“Declaration of the Independence of Cyberspace”)
• David Post
• Eric Goldman
• H. Brian Holland
4

III. THE CONTRAST WITH CYBER‐COLLECTIVISM
A. Cyber‐Collectivism Defined
Cyber‐collectivism is the opposite of cyber‐libertarianism. Cyber‐collectivism refers to the
general belief that cyber‐choices should be guided by the State or an elite class according to
some amorphous “general will” or “public interest.” The distant influence of Plato, Rousseau,
and Marx can often been seen in the work of cyber‐collectivists.
Cyber‐collectivism comes in many flavors, however. “Left”‐leaning cyber‐collectivists, for

example, are more focused on social concerns than economic ones. Some “Right”‐leaning
cyber‐collectivists are focused on controlling the impact of the Internet on culture or security.
In other words, cyber‐collectivism is not as philosophically coherent as cyber‐libertarianism—
which, though it comes in many flavors, shares a larger core of common agreement
B. General Relationship to “Information Commons” Movement
There is a close relationship between the Leftist variant of cyber‐collectivism and the “digital
commons” or “information commons” movement, which generally refers to the belief that
digital resources should be shared or perhaps commonly owned instead of held privately—both
because cyber‐collectivists think this is more equitable and because they generally think such
arrangements will ultimately work better.
Cyber‐collectivists are typically not Marxists; few of them call for state ownership of the
information means of production. Rather, cyber‐collectivists might better be thought of a
“cyber social Democrats” (in a European sense) or “Digital New Dealers” (in the American
tradition). They advocate a generous role for law and regulation in many online matters, but do
not typically resort to full‐blown nationalization.
C. Exponents of Cyber‐Collectivism
Some notable cyber‐collectivists or information commons adherents (and their key works):
• Lawrence Lessig (Code, Free Culture)
• Tim Wu (Who Controls the Internet?)
• Yochai Benkler (The Wealth of Networks)
• Jonathan Zittrain (The Future of the Internet & How to Stop It)
• David Bollier (Viral Spiral)
• Harvard Berkman Center*
• New America Foundation*
• Public Knowledge*
(*We are, of course, generalizing a bit here. Not everyone in these institutions is a cyber‐
collectivist and, again, there are many flavors of cyber‐collectivism, just as there are many
flavors of cyber‐libertarianism. Individuals in some of these organizations diverge significantly
in attitudes towards technological change and the proper scope of government influence
throughout the high‐tech sector.)
5

IV. RELATIONSHIP BETWEEN CYBER‐LIBERTARIANISM & INTERNET EXCEPTIONALISM
Some non‐libertarians occasionally join ranks with cyber‐libertarians out of a belief that the
Internet is different and deserving of special consideration and care. This is commonly referred
to as “Cyber‐Exceptionalism” or “Internet Exceptionalism.” John Perry Barlow’s 1996
“Declaration of the Independence of Cyberspace” was probably the earliest (and most extreme)
articulation of “Internet Exceptionalism”:
Governments of the Industrial World, you weary giants of flesh and steel, I come
from Cyberspace, the new home of Mind. On behalf of the future, I ask you of
the past to leave us alone. You are not welcome among us. You have no
sovereignty where we gather.
We have no elected government, nor are we likely to have one, so I address you
with no greater authority than that with which liberty itself always speaks. I
declare the global social space we are building to be naturally independent of
the tyrannies you seek to impose on us. You have no moral right to rule us nor
do you possess any methods of enforcement we have true reason to fear.
Governments derive their just powers from the consent of the governed. You
have neither solicited nor received ours. We did not invite you. You do not
know us, nor do you know our world. Cyberspace does not lie within your
borders. Do not think that you can build it, as though it were a public
construction project. You cannot. It is an act of nature and it grows itself
through our collective actions.
You have not engaged in our great and gathering conversation, nor did you
create the wealth of our marketplaces. You do not know our culture, our ethics,
or the unwritten codes that already provide our society more order than could
be obtained by any of your impositions.
You claim there are problems among us that you need to solve. You use this
claim as an excuse to invade our precincts. Many of these problems don't exist.
Where there are real conflicts, where there are wrongs, we will identify them
and address them by our means. We are forming our own Social Contract. This
governance will arise according to the conditions of our world, not yours. Our
world is different.
Similarly, in 1994, The Progress & Freedom Foundation brought together four leading
technology visionaries (Esther Dyson, George Gilder, George Keyworth, and Alvin Toffler) to pen
A Magna Carta for the Knowledge Age. In that manifesto, the authors argued:
Cyberspace is the land of knowledge, and the exploration of that land can be a
civilization’s truest, highest calling. The opportunity is now before us to
empower every person to pursue that calling in his or her own way.
6

The challenge is as daunting as the opportunity is great. The Third Wave has
profound implications for the nature and meaning of property, of the
marketplace, of community and of individual freedom. As it emerges, it shapes
new codes of behavior that move each organism and institution—family,
neighborhood, church group, company, government, nation—inexorably beyond
standardization and centralization, as well as beyond the materialist's obsession
with energy, money and control.
Turning the economics of mass‐production inside out, new information

technologies are driving the financial costs of diversity—both product and
personal—down toward zero, “demassifying” our institutions and our culture.
Accelerating demassification creates the potential for vastly increased human
freedom.
It also spells the death of the central institutional paradigm of modern life, the
bureaucratic organization. (Governments, including the American government,
are the last great redoubt of bureaucratic power on the face of the planet, and
for them the coming change will be profound and probably traumatic.)
As that last paragraph suggests, this “Magna Carta” for cyberspace contained some hints of
cyber‐libertarian thinking, but the general thrust of the document was more generally of the
Internet Exceptionalist school of thought.
Internet Exceptionalists are sometime critiqued for sounding like techno‐utopians, but it is a
mistake to conflate the two. There are not always synonymous.
V. CYBER‐LIBERTARIANISM’S EARLY LEGAL FOUNDATIONS & VICTORIES
• Section 230 of the Communications Decency Act of 1996 is probably the best
example of cyber‐exceptionalism in practice. It grants broad immunity to online
intermediaries for third party content except for criminal and IP law—breaking with
traditional tort liability standards. Specifically, Sec. 230 rejected the “deputization
of the middleman” model of liability.
• Overturning of the Communications Decency Act’s indecency & obscenity
provisions in Reno v. ACLU decision
• Various court decisions blocking enforcement of the Child Online Protection Act
(COPA) of 1999
• The encryption wars & the defeat of the “Clipper Chip”
• The Internet Tax Freedom Act of 1998
VI. APPLICATIONS: HOW CYBER‐LIBERTARIANS THINK ABOUT VARIOUS POLICY ISSUES
• Free speech & online child safety: Favor parental empowerment and industry self‐
regulation over censorship. “Household standards” should trump “community
standards.”
7

• Privacy policy & online advertising: Privacy is a subjective condition and efforts to
regulate to “protect privacy” could have unintended consequences for freedom of
speech and the growth of online content and commerce. User empowerment and
industry self‐regulation represent the superior way to address privacy concerns.
• Net neutrality / infrastructure regulation: “Open access” regulation is nothing
more the infrastructure socialism. Network operators should be free to own,
operate, and price their systems and services as they see fit, subject only to
enforcement of their terms of service and other voluntary disclosures as contracts
with their users. New entry and innovation are better alternative to regulating
yesterday’s networks and technologies.
• Internet taxation: No special taxes should be imposed on online services or Internet
access. To the extent the Net disrupts traditional tax bases that should be seen as
an opportunity to reform those tax systems.
• Online gambling: People should be free to do what they want with their money and
Internet gambling is likely impossible to shut down entirely anyway, given the
nature of the Internet.
• Antitrust: “Market power” and “code failures” are best dealt with by spontaneous
evolution of markets and new entry, not bureaucratic micro‐management of old
technologies or market structures. Regulation often creates, or tends to foster,
most monopolies. As Ithiel de Sola Pool once noted, “The force that preserves most
monopoly privilege is law…. most would vanish in the absence of enforcement.”
• IP issues: Cyber‐libertarians are deeply divided over IP issues (especially copyright)
and this reflects a long‐standing division within libertarian ranks on these issues
more generally. Some believe IP rights are a natural extension of traditional
property rights and/or a sensible way to incentivize scientific and artistic creativity.
Others believe no one has a right to “property‐tize” intangible creations or that
copyright is simply industrial protectionism. And there are many views in between.
VII. PROSPECTS FOR CYBER‐LIBERTARIANISM
A. The Pessimistic View
• Government’s will quash online freedom and bring the Internet under their thumbs.
• Regulatory efforts are expanding at a breathtaking pace and will not slow anytime soon.
B. The Optimistic View
• “Technologies of Freedom” (tools and methods to avoid online regulation, censorship
and control) will ultimately triumph.
• Technology is evolving faster than government’s ability to regulate it.
VIII. RELATED READING ON CYBER‐LIBERTARIANISM & INTERNET EXCEPTIONALISM
• John Perry Barlow, Declaration of the Independence of Cyberspace (1996).
8

• Tom W. Bell, Free Speech, Strict Scrutiny, and Self‐Help: How Technology Upgrades
Constitutional Jurisprudence, 87 U. Minn. L. Rev. 743 (2003).
• Esther Dyson, George Gilder, George Keyworth, & Alvin Toffler, The Progress & Freedom
Foundation, A Magna Carta for the Knowledge Age (1994).
• Eric Goldman, The Third Wave of Internet Exceptionalism, Santa Clara Magazine (Winter
2008).
• H. Brian Holland, In Defense of Online Intermediary Immunity: Facilitating Communities
of Modified Exceptionalism, Kansas L. Rev. (2007).
• Peter Huber, Law & Disorder in Cyberspace: Abolish the FCC and Let Common Law Rule
the Telecosm (1997).
• Ithiel de Sola Pool, Technologies of Freedom (1983).
• David Post, In Search of Jefferson’s Moose: Notes on the State of Cyberspace (2009).
• Adam Thierer, The Pragmatic Internet Optimist’s Creed, Technology Liberation Front
Blog (Nov. 11, 2008).
• Technology Liberation Front Blog, About the Technology Liberation Front (August 2004,
revised 2008).

9

Cyber-Libertarianism: The Case For Real Internet Freedom (Ver 1.0 - Thierer & Szoka)

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Cyber-Libertarianism: The Case For Real Internet Freedom (Ver 1.0 - Thierer & Szoka)

Uploaded by

Copyright:

Available Formats

01000111011010010111011001100101001000

• Social Freedom: Individuals should be granted liberty of conscience, thought,

Cyber‐collectivism comes in many flavors, however. “Left”‐leaning cyber‐collectivists, for

Turning the economics of mass‐production inside out, new information

You might also like