Internet Utopianism and the Practical Inevitability of Law

12 Pages Posted: 25 Nov 2019

See all articles by Julie E. Cohen

Julie E. Cohen

Georgetown University Law Center

Date Written: April 17, 2019

Abstract

Writing at the dawn of the digital era, John Perry Barlow proclaimed cyberspace to be a new domain of pure freedom. Addressing the nations of the world, he cautioned that their laws, which were “based on matter,” simply did not speak to conduct in the new virtual realm. As both Barlow and the cyberlaw scholars who took up his call recognized, that was not so much a statement of fact as it was an exercise in deliberate utopianism. But it has proved prescient in a way that they certainly did not intend. The “laws” that increasingly have no meaning in online environments include not only the mandates of market regulators but also the guarantees that supposedly protect the fundamental rights of internet users, including the expressive and associational freedoms whose supremacy Barlow asserted. More generally, in the networked information era, protections for fundamental human rights — both on- and offline — have begun to fail comprehensively.

Cyberlaw scholarship in the Barlowian mold isn’t to blame for the worldwide erosion of protections for fundamental rights, but it also hasn’t helped as much as it might have. In this essay, adapted from a forthcoming book on the evolution of legal institutions in the information era, I identify and briefly examine three intersecting flavors of internet utopianism in cyberlegal thought that are worth reexamining. It has become increasingly apparent that functioning legal institutions have indispensable roles to play in protecting and advancing human freedom. It has also become increasingly apparent, however, that the legal institutions we need are different than the ones we have.

Keywords: cyberspace, cyberlaw, utopianism, Barlow, fundamental rights, human rights

JEL Classification: K30, K40

Suggested Citation

Cohen, Julie E., Internet Utopianism and the Practical Inevitability of Law (April 17, 2019). Duke Law & Technology Review, Vol. 18, No. 1, 2019. Available at SSRN: https://ssrn.com/abstract=3486392

Julie E. Cohen (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States
202-662-9871 (Phone)
202-662-9411 (Fax)

HOME PAGE: http://www.law.georgetown.edu/faculty/jec/

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