Foucault in Cyberspace

James Boyle
2 YALE SYMP. L. & TECH. art. no. 2

There is a predominantly libertarian slant to political discussion on, and about, the Net. This libertarian slant comes, in part, from the notion that states are helpless to regulate the Net and, in part, from a set of assumptions that the Net is both naturally and structurally a hospitable place for libertarian ideals. Today I want to make the unorthodox claim that libertarianism on the Net is actually surprisingly blind to the potential exercise of state power. That is to say that the central Net libertarian ideas, which I shall call “The Internet Trinity,” are actually incorrect because they assume too easily that the Net cannot be regulated. They assume there is no way for the state to control the Internet and thus no reason to fear regulation. So, whether we want it or not, libertarianism will be the regime, or at least there will be no regulation of any extensive kind. From there, the Internet prophets move to arguments about what our community should actually be doing. I am going to argue that the underlying assumptions of these beliefs are incomplete, and in some cases, just wrong.