CRITICAL FACULTIES Sovereignty in cyberspace Two legal scholars puncture the myth of the borderless, lawless Internet
By Christopher Shea
LESS THAN a decade ago, in his famous "Declaration of the Independence of Cyberspace," the Internet theorist John Perry Barlow wrote, "Governments of the Industrial World, you weary giants of flesh and steel ... You have no sovereignty where we gather."
How quickly things change. In a 2000 case, a French court ruled that Yahoo, an American company, had to follow French law and make sure that no Nazi memorabilia could be purchased online in France via Yahoo auction sites. Yahoo first decried the effort as censorship, then claimed it was impossible to identify French Web surfers. Now, just as French judges demanded, Yahoo uses geographic-filtering software to make sure websites viewable in France comply with French standards. (It uses that same software to give French viewers French-language ads.)
China, another flesh-and-steel giant, has also proved itself surprisingly agile. Chinese officials use Cisco hardware to keep any website with an 'offensive' message from getting through its borders and Microsoft products to screen words like 'democracy' and 'multiparty elections' from blogs. Last fall, Chinese officials demanded that Yahoo trace the identity of a journalist who had leaked information about a Communist Party meeting to an American website. Yahoo complied, and the man is now serving a 10-year sentence.
In other words, forget all that talk about a borderless utopia and about blogs dissolving dictatorships-or at least tamp it down. When it comes to the Internet, "The story of the next 10 years will be one of rising government power," says Tim Wu, a former marketing executive for a Silicon Valley company who now teaches law at Columbia. While some countries are committed to a fundamentally 'closed' Internet, others want it open. Since technology permits both approaches, Wu adds, "I wouldn't be surprised if we saw an Internet version of the Cold War."
Wu is coauthor, with Harvard law professor Jack L. Goldsmith, of the iconoclastic forthcoming book, 'Who Controls the Internet?' (an excerpt of which appears this month in Legal Affairs magazine). The book, to be published in March, could be called an example of 'cyberrealism' in two ways. It grafts the hard-nosed 'realist' school of foreign policy-states and state interests are what matters-onto an analysis of what's going on with the Web today. It also tries to deflate hype by arguing that most of the supposedly unprecedented issues raised by the Internet can be handled by existing concepts in international law.