MXIV. Digital Libertarianism

And now I am ready to return briefly, by way of conclusion, again to James Boyle’s essay, “Foucault in Cyberspace,” written in 1997 and available online. In this essay, recall that Boyle delineates and critiques the “set of political and legal assumptions” that he calls “the jurisprudence of digital libertarianism.”

He proposes as key elements within this perspective both a belief “about the state's supposed inability to regulate the Internet,” as well as “a preference for technological solutions to hard legal issues on-line.” Both of these propositions should be quite familiar by now. And there is no question that it is importantly a consequence of the article of faith expressed in the first of these propositions that the libertarians about whom Boyle is writing here express the preference of the second proposition.

Boyle makes what he calls a “familiar criticism” of what he is labeling digital libertarianism, namely, that its advocates manifest a certain “blindness towards the effects of private power” deriving from their rather monomaniacal focus on abuses of state power, but then appends to this the “less familiar” criticism that “the conceptual structure and jurisprudential assumptions of digital libertarianism lead its practitioners to ignore the ways in which the state can often use privatized enforcement and state-backed technologies to evade some of the supposed practical (and constitutional) restraints on the exercise of legal power over the Net.” Boyle’s point is that techno-libertarians like the cypherpunks have been distracted by their monolithic conception of an overbearing sovereign state from grasping the diffuse, fine-grained, multilateral, technical mechanisms through which authorities, whether governmental or not, exercise oppressive power over individuals in fact.

When such libertarians think of law, Boyle declares, “they tend to conjure up a positivist, even Austinian image.” For them it would seem that “law is a command backed by threats, issued by a sovereign who acknowledges no superior, directed to a geographically defined population which renders that sovereign habitual obedience.” And for Boyle this is significant because it makes libertarian technology enthusiasts cockier and hence considerably more vulnerable than they would otherwise be. “[T]hey think of the state's laws as blunt instruments incapable of imposing their will on the global subjects of the Net and their evanescent and geographically unsituated transactions,” he writes. “Indeed, if there was ever a model of law designed to fail at regulating the Net, it is the Austinian model.” But, as luck would have it, such an “Austinian model is both crude and inaccurate…” for the “actual experience of power [is] exercised through multitudinous non-state sources, often dependent on material or technological means of enforcement.”

This disastrously distracting “Austinian image” of the fantastic sovereign State will be a familiar one by now, since it corresponds exactly to an image of the sovereign individual about whom I have written already at length. It is intriguing to contemplate the prospect that the libertarian project simply stages an interminable confrontation between what amount to two utterly illusory antagonists -– two sovereign models of agency –- one public, one private -– two presumably perfect self-sufficiencies, but both of which depend for their intelligibility and normative force in fact on the ongoing conjuration of the other.

And so, when libertarians obsessively array the individual against the state, they find the very image of the unattainable state of efficacious autonomy they attain to in the image of the State itself, even while it is to this image of monstrous and monolithic power that they assign the primary or even solitary blame for their failure to attain it. For libertarians it sometimes seems as if the agencies of the individual and the State endlessly both mirror and antagonize one another, so that the shoring up of privacy becomes not so much a withdrawal of the individual from public life, as a withdrawal from the public of a life-giving power that otherwise the individual is always only deprived of by the State. It is to networks that I will suggest we may turn to better discern the image of an empowering (inter)dependency that confounds the bind of these imaginary interminably contending sovereign agencies. But before I turn from the pancryptic libertarian-cypherpunk utopia/dystopia altogether, I want first to discuss its curious complement, the panoptic “cheerful libertarian” utopia/dystopia of David Brin’s Transparent Society.

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