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NEW FOUNDATIONS: ON THE EMERGENCE OF SOVEREIGN CYBERSTATES
AND THEIR GOVERNANCE STRUCTURES
by Peter Ludlow

Chapter 1. New Foundations: On the Emergence of Sovereign Cyberstates and their Governance Structures

I. The Sovereignty of Cyberspace.

On February 8, 1996, shortly after the Telecommunications Bill and its Communications Decency Act were signed into law by Bill Clinton, John Perry Barlow uploaded his "Declaration of the Independence of Cyberspace." His declaration (Chapter 2 in this volume) began as follows:

A Declaration of the Independence of Cyberspace

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.

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Great reading, but isn't it just plain crazy? I mean, how can we possibly think of Cyberspace as a "real" place with its own "real" governance structures? More to the point, why is Barlow wasting time with these crazy out-of-touch rants when there are serious political problems to be dealt with? Problems like fighting Internet censorship in court and in Congress. Problems like fighting restrictions on cryptography. Problems like providing Internet access to the poor and disenfranchised -- real problems of every make and stripe. So many real problems to worry about that one has to wonder what could be less productive than Barlow's declaration. Doesn't it just amount to a call for a retreat from reality?

That is certainly how a number of commentators have viewed Barlow's essay. For example, David Bennahum (Chapter 3) argues that we don't actually inhabit Cyberspace and that it is not even clear what it would mean to do so:

I'm wondering what it means to form a social contract in Cyberspace, one with the kind of authenticity and authority of a constitution. Sounds great in theory, but I don't actually "live" in Cyberspace -- I live in New York City, in the state of New York, in the United States of America. I guess I'm taking things too literally. Apparently my "mind" lives in Cyberspace and that's what counts. It's my vestigial meat-package, also known as my body, which lives in New York. Government, geography, my body -- all are obsolete now thanks to "Cyberspace that new home of mind," ...

David Brin (Chapter 4) contends that whatever it might mean, it is clearly a distraction. Brin notes that about the same time Barlow published his Declaration, the government of China was calling for all Internet users to register with the police and that this is the sort of thing we should be concerned about.

If there is a threat worth truly worrying about, note another news item, buried deep below lurid stories about the Telecommunications Act (which despite its flaws will increase competition and routing-diversity, the core of Net independence.) This separate story, wedged on back pages, had the following headline.

CHINA ORDERS NET USERS TO REGISTER WITH POLICE.

This should be sending us all shouting to the ramparts! It is not only a threat to Net freedom, and denial of the future to over a billion people, it could very well manifest danger to our very lives.

Brin closes his essay with the following tag, one expressing views that are no doubt widely shared.

IAAMOAC*

* I Am A Member Of A Civilization -- Try saying it aloud, sometime. It is a mantra against the modern self-doped drug of self-righteousness. Compared to anything else human beings have done, it is the best civilization ever. It's fun. It created the Net. It's earned your loyalty a thousand times over.

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Richard Barbrook (Chapter 5) is no more sympathetic when he argues that Barlow's rant is simply the product of a kind of disillusionment that comes when libertarian ideology collides with the reality of capitalism:

[Barlow's essay] is a symptom of the intense ideological crisis now facing the advocates of free market libertarianism within the online community. At the very moment that cyberspace is about to become opened up to the general public, the individual freedom which they prized in the Net seems about to be legislated out of existence with little or no political opposition. Crucially, the lifting of restrictions on market competition hasn't advanced the cause of freedom of expression at all. On the contrary, the privatisation of cyberspace seems to be taking place alongside the introduction of heavy censorship. Unable to explain this phenomenon within the confines of the Californian Ideology, Barlow has decided to escape into neo-liberal hyper-reality rather than face the contradictions of really existing capitalism.

The critiques by Brin, Bennahum, and Barbrook are precisely the ones we expect to be raised. They reflect the obvious worries about Barlow's manifesto. The only problem is that the obvious worries are not always the correct ones.

In the first place, how fair is it to accuse Barlow of escapism? Surely he is certainly better known than most for concrete work in fighting for online rights. He did, after all, co-found the Electronic Frontier Foundation in response to overly zealous hacker crackdowns by the U.S. Secret Service. And he has taken the lead in fighting for crypto rights, etc. Perhaps, one can both advance a radical thesis and fight in everyday causes.

But what about the claim that we don't really inhabit Cyberspace -- that, in fact, we are inhabitants of Plovdiv, Bulgaria, or Des Moines, Iowa, or Milton Keynes, England. Surely that observation is unassailable. Or is it? In fact, matters are not so simple.

This is actually a point that I've tried to explore elsewhere. In the introduction to Section 5 of High Noon on the Electronic Frontier, I held that maybe the identities we construct online (or virtual reality or VR identities) may be just as important -- indeed, just as real -- as the ones that we have constructed in the so-called real world (hereafter RW). I tied to illustrate that via the example of gender:

If most of my social contacts are in VR rather than the RW, then why wouldn't VR have greater claim to the construction of my gender? That is, if social institutions determine gender and if the bulk of the social institutions in which I participate are VR institutions, then why isn't my VR gender my 'real' gender?"

Of course my claim in that piece wasn't that you swap your gender simply by logging on as a member of the opposite sex. Time has to be spent in the new world and a lot depends on how you are viewed by the other inhabitants of that world. The key idea here is not that VR worlds have the final claim on reality, so much as that the RW has overstated its claim on reality. Maybe RW isn't the final arbiter of what's real after all.

If the social construction of reality has some plausibility for the construction of the self, it has even more plausibility for the construction of political institutions like governments. At least in the case of persons we can point to a physical body and make some sort of claim that the self is to be identified with that physical organism, but in the case of governments there is no genuine physical body that we can identify as the thing we are talking about. Governments and governmental institutions and laws have a kind of reality, but it is pretty clearly a socially constructed reality. It seems to me that this point has been lost on some of the contributors to the debate over the sovereignty of Cyberspace. As we will see, attention to this point can have consequences for discussions of the sovereignty of online communities and for the emergence of online governance structures for those communities.

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II. Crypto Anarchy

'Crypto Anarchy' is a phrase initially coined by Timmothy May (Chapters 6-7) to describe a possible (inevitable?) political outcome from the widespread use of encryption technologies like Pretty Good Privacy. The leading idea is that as more and more of our transactions take place behind the veil of encryption, it becomes easier and easier for persons to undertake business relations that escape the purview of traditional nation states. For example, not only will certain "illegal" transactions become more widespread (or at least easier to carry out), but it will also become increasingly difficult for the nation states to enforce their taxation laws. Indeed, full-fledged "black market" economies may emerge which will eventually become larger and more vibrant than the "legitimate" economies that are controlled by the nation states.

That is a pretty contentious position -- in effect it amounts to a claim that the nation states as we know them are doomed--but it is not a priori false, and one argument in support of the position goes like this: Not only is the Internet undermining the traditional media, but it is also reshaping the nature of our commercial infrastructure. Strictly speaking, it just is our new commercial infrastructure. Whereas in past ages goods were transported by ship or rail or truck, increasingly products of value can be delivered via the Internet. Notice also that the Internet does not respect international borders; Information and software can be transferred to Bulgaria almost as easily as Boston -- on the Internet your business partners can be scattered about the globe. If identity remains hitched to regular trade and commerce (as it has for at least three thousand years), then it is clear that our sense of identity is about to be unhitched from our national borders.

A great example of this phenomenon was reported in the EFF's EFFector Online, (Volume 09 No. 03 Mar. 6, 1996):

A "virtual" software corporation, ACD, with software engineers in both California and Hungary, but no real physical business infrastructure, was recently slapped with an $85 fine by US Customs.

ACD's product, EPublisher for the Web, was developed over the Internet with no physical meetings or other contact between the developers. When Hungarian developers sent versions of the software on diskette to their US counterparts, the shipment was stopped by Customs at LAX (the major Los Angeles airport) for "mark violation". The Hungarians had marked "Country of Origin" on the forms as "Internet", as the product was not decidably made in Hungary or the US, and the owners of the intellectual property rights to the product are in no single physical location. ACD's Laslo Chaki says, "We had to pay an $85 fine for mark violation. Virtual company, in virtual city with $85 real fine!"

The employees for ACD correctly saw that they did not have a home in any "real" nation, but rather their base of operations was simply the Internet. Global boundaries mean nothing in this case.

Also possible is the emergence of different currencies for different trading partnerships. These new currencies, however, would not be confined to specific geographical regions, but would depend rather on networks of business relationships. In a sense, they would be similar to the time-honored practice of barter within industry groups, or to payment with credits for use in company stores.

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Much has been made about the fact that cash will be digital in nature, and that with current encryption technology, it may be possible for underground economies to emerge which escape detection by established nation-states altogether. The Cypherpunks argue that the emergence of such underground economies is not just possible, but in fact is inevitable.

If my business is information intensive, there is no reason I cannot conduct my business from an account off shore, trade with off-shore partners, and bank off shore as well. It is inevitable that there will be future Ross Perots and Bill Gateses who amass billion dollar fortunes, spend little of it, and who conduct their business using off-shore banks on the Internet. This does not make for a mere billion dollar underground economy, however. The underground electronic bank will invest in other ventures, thus expanding the monetary supply in the underground economy. At a certain crucial threshold, enough money will escape the taxation Net of the nation state so that its abilities to operate effectively will erode. If the nation-state chooses to raise taxes, more businesses will slip into the electronic underground, further eroding the viability of the national government. Or so the argument goes.

The Cypherpunk claims about Crypto Anarchy can be challenged on two fronts - whether Crypto Anarchy really is inevitable or even likely, and if it is, whether it is at all desirable. On this latter question, Dorothy Denning (Chapter 9) argues that Timothy May's phrase "Crypto Anarchy" is simply a way of sugar coating an undesirable state of lawlessness:

Although May limply asserts that anarchy does not mean lawlessness and social disorder, the absence of government would lead to exactly these states of chaos.

I do not want to live in an anarchistic society -- if such could be called a society at all -- and I doubt many would. A growing number of people are attracted to the market liberalism envisioned by Jefferson, Hayek, and many others, but not to anarchy. Thus, the crypto anarchists' claims come close to asserting that the technology will take us to an outcome that most of us would not choose.

Crypto Anarchy would not be desirable on Denning's view, but this point is academic, since, on her view, Crypto Anarchy is not going to come about in any case - although her views about why it won't come about have shifted over the last few years. Initially, Denning (Chapter 9) held that Crypto Anarchy would not come to pass thanks to "Key Escrow" encryption technology:

I do not accept crypto anarchy as the inevitable outcome. A new paradigm of cryptography, key escrow, is emerging and gaining acceptance in industry. Key escrow is a technology that offers tools that would assure no individual absolute privacy or untraceable anonymity in all transactions. I argue that this feature of the technology is what will allow individuals to choose a civil society over an anarchistic one.

Key escrow encryption technology involves the introduction of encryption strategies that allow government authorities "back door" access to all encrypted communications. Of course, such technology would be an anathema to Cypherpunks like Eric Hughes (Chapter 8), since it would effectively undermine his concerns about trusting large "faceless" organizations to respect our privacy:

We cannot expect governments, corporations, or other large, faceless organizations to grant us privacy out of their beneficence. It is to their advantage to speak of us, and we should expect that they will speak.

To see why May is concerned, simply consider the trustworthiness of the government officials who would handle the key escrow. Can underpaid government bureaucrats be trusted with keys to all of our encrypted messages? - particularly if those messages involve information of extreme financial value or of great political sensitivity?

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In recent years, as attempts to introduce key escrow encryption have foundered, Denning's studies have shown that even without key escrow, law enforcement agencies have, on balance, been capable of thwarting crime and underground activities - for examples see the essay by Denning and Baum (Chapter 12). Denning (chapter 10) concludes that Crypto Anarchy is not in the cards.

[W]hereas encryption has posed significant problems for law enforcement, even derailing some investigations, the situation in no way resembles anarchy. In most of the cases with which I am familiar, law enforcement succeeded in obtaining the evidence they needed for conviction.

Still, there are those who hold that law enforcement agencies are fighting a losing battle and that Crypto Anarchy remains inevitable - and even desirable. On the latter point, Duncan Frissell (Chapter 11) responds to Denning's claim that she wouldn't want to live in a state of Crypto Anarchy, suggesting that if persons like her prefer to live under strong government control that will remain an option for those who choose it:

Whatever happens, there will always be plenty of cults around (perhaps even one called the Government of the United States of America) to which anyone will be free to belong and at the altars of which one will be free to worship. In fact the deregulation of human interaction will make it easier for more oppressive cults to exist than is possible today as long as they keep to themselves. There will be no shortage of people willing to tell their followers what to do. Nothing will stop anyone from joining such a society.

Of course, as Denning would doubtless observe, the point is not really about worshiping oppresive states, but rather having strong states for the security from crime that they can provide. On this point too, however, Frissell is skeptical. In his view the "security" they can provide is all to often chimeral.

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III. Shifting Borders.

Arguably we don't need to wait for Crypto Anarchy to see the erosion of power of RW governmental and legal institutions - quite independently of encryption technology it is happening already, and it is being driven by the very real loss of revenue being felt by state and local governments. In the words of Nathan Newman (Ch. 15) state and local governments are rapidly becoming "road kill on the information superhighway". This is a byproduct of recent moves in which taxation authority is taken from the federal government and states and handed over to the localities. The problem with the current situation is that the localities are utterly helpless in the face of the multinational corporations currently engaged in e-commerce. Tax collection has been handed to the localities, and they simply can't collect taxes in an information economy.

Taxation and loss of revenue is not the only relevant factor, however. A number of legal questions no longer make sense when viewed from within the framework of territorial boundaries. David Johnson and David Post observe (Chapter 13) it is becoming increasingly clear that an independent legal jurisdiction is emerging for Cyberspace. Obviously disputes can emerge in Cyberspace which cross all existing legal authority. For example, what happens when a dispute arises between business partners that live in the same neighborhood in Cyberspace but which live in radically different parts of the world with radically different legal institutions? Is the dispute to be settled by the RW laws of one of the physical locations? - or is it best resolved by new institutions with new jurisdictions as determined by their virtual "location" in Cyberspace? Some of the thorny issues that will create conundrums for traditional territory-base law include issues about trademark law (which is traditionally territory-based), defamation law, the regulation of net-base professional activities, and copyright law. Johnson and Post conclude that new online legal jurisdictions will emerge:

Global computer-based communications cut across territorial borders, creating a new realm of human activity and undermining the feasibility--and legitimacy--of applying laws based on geographic boundaries. While these electronic communications play havoc with geographic boundaries, a new boundary, made up of the screens and passwords that separate the virtual world from the "real world" of atoms, emerges. This new boundary defines a distinct Cyberspace that needs and can create new law and legal institutions of its own.

David Post (Chapter 14) goes further and suggests that there may emerge a plurality of online rule systems and that a kind of free market in these rule sets might develop - with online networks competing for competing for citizens by optimizing their rule sets:

although each individual network can be constrained from "above" in regard to the rule-sets it can, or cannot, adopt, the aggregate range of such rule-sets in cyberspace will be far less susceptible to such control. A kind of competition between individual networks to design and implement rule-sets compatible with the preferences of individual internetwork users will thus materialize in a new and largely unregulated, because largely unregulatable, market for rules. The outcome of the individual decisions within this market-the aggregated choices of individual users seeking particular network rule-sets most to their liking-will therefore, to a significant extent, determine the contours of the "law of cyberspace."

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The Emergence of Law in Cyberspace

So far we have discussed the possibility that new online legal jurisdictions may emerge, but we have said little about what the character of the laws and institutions themselves might be. While we are largely limited to speculation, it is possible to gain some insight into this question by studying the legal institutions that have emerged to date. For the most part these emerging new systems of laws have appeared in whimsical settings like MUDS (Multi-User Dimensions) and MOOs (MUDS - Object Oriented), which are essentially text-based virtual reality environments. For some people MUDs and MOOs are nothing more than elaborate Dungeons and Dragons games, but others have maintained that these environments foster very real virtual cultures and governance institutions and that we can learn much by studying them.

One famous example is LamdaMOO, which was initially started by Pavel Curtis at Xerox's Palo Alto Research Center (PARC). LamdaMOO's fame is due in large measure to a famous Village Voice article ("A Rape in Cyberspace") by Julien Dibbell (reprinted in High Noon on the Electronic Frontier). As with many MUDs and MOOs, LambdaMOO began as an aristocracy (or "wizardocracy") in which the programmers held absolute power and were responsible for resolving virtually all social conflicts. Then, in a famous posting to a LambdaMOO bulletin board, the head wizzard Haakon (a.k.a. Pavel Curtis), announced "a new direction" for LamdaMOO.

Message 537 on *social-issues (#7233):

Date: Wed Dec 9 23:32:29 1992 PST

From: Haakon (#2)

To: *social-issues (#7233)

Subject: On to the next stage...

[snip]

I realize now that the LambdaMOO community has attained a level of complexity and diversity that I've actually been waiting and hoping for since four hackers and I first set out to build this place: this society has left the nest.

I believe that there is no longer a place here for wizard-mothers, guarding the nest and trying to discipline the chicks for their own good. It is time for the wizards to give up on the `mother' role and to begin relating to this society as a group of adults with independent motivations and goals.

So, as the last social decision we make for you, and whether or not you independent adults wish it, the wizards are pulling out of the discipline/manners/arbitration business; we're handing the burden and freedom of that role to the society at large. We will no longer be the right people to run to with complaints about one another's behavior, etc. The wings of this community are still wet (as anyone can tell from reading *social-issues), but I think they're strong enough to fly with.

[snip]

My personal model is that the wizards should move into the role of systems programmers: our job is to keep the MOO running well and getting better in a purely technical sense.

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Haakon's "New Direction" was soon tested when a dispute arose involving the virtual sexual assault perpetrated by a LamdaMOO denizen named Mr. Bungle. Bungle used a "voodoo doll" -- in effect a software subroutine that allows one to temporarily control the actions of other characters -- to seize control of a number of characters and force them into a number of outrageous (virtual) sexual acts. For the victims -- or rather their RW counterparts -- there was nothing to do but watch their characters be violated (or, of course, stop watching what was happening to their characters).

Of course in the "real world" all that was happening was a number of people were typing on their keyboards over the internet, but the way the participants experienced the episode was quite another matter. A number of them felt violated by the incident and demanded immediate action. One such individual was Legba, who posted the following on a LambdaMOO discussion group that was discussing the event.

``Mostly voodoo dolls are amusing, And mostly I tend to think that restrictive measures around here cause more trouble than they prevent. But I also think that Mr. Bungle was being a vicious, vile fuckhead, and I...want his sorry ass scattered from #17 to the Cinder Pile. I'm not calling for policies, trials, or better jails. I'm not sure what I'm calling for. Virtual castration, if I could manage it. Mostly, [this type of thing] doesn't happen here. Mostly, perhaps I thought it wouldn't happen to me. Mostly, I trust people to conduct themselves with some veneer of civility. Mostly, I want his ass.''

Dibbell later interviewed Legba's "typist" and reported the following:

"Months later, the woman in Seattle would confide to me that as she wrote those words posttraumatic tears were streaming down her face--a real-life fact that should suffice to prove that the words' emotional content was no mere playacting."

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Ultimately, Legba proposed that Mr. Bungle be toaded - i.e. that his character be terminated and that Mr. Bungle's typist should lose his/her/their account. The ensuing discussion saw positions that covered the political spectrum. Dibbell catalogued the positions as including the following:

Parliamentarian legalist types:

"Unfortunately Bungle could not legitimately be toaded at all, since there were no explicit MOO rules against rape, or against just about anything else--and the sooner such rules were established, they added, and maybe even a full-blown judiciary system complete with elected officials and prisons to enforce those rules, the better. "

Royalists:

"Bungle's as-yet-unpunished outrage only proved this New Direction silliness had gone on long enough, and that it was high time the wizardocracy returned to the position of swift and decisive leadership their player class was born to."

Technolibertarians:

"MUD rapists were of course assholes, but the presence of assholes on the system was a technical inevitability, like noise on a phone line, and best dealt with not through repressive social disciplinary mechanisms but through the timely deployment of defensive software tools. Some asshole blasting violent, graphic language at you? Don't whine to the authorities about it--hit the @gag command and the asshole's statements will be blocked from your screen (and only yours). It's simple, it's effective, and it censors no one."

Anarchists:

"Like the technolibbers, the anarchists didn't care much for punishments or policies or power elites. Like them, they hoped the MOO could be a place where people interacted fulfillingly without the need for such things. But their high hopes were complicated, in general, by a somewhat less thoroughgoing faith in technology (``Even if you can't tear down the master's house with the master's tools''--read a slogan written into one anarchist player's self-description--``it is a damned good place to start'').

The consensus that emerged was that Mr. Bungle should be toaded. Shortly thereafter, Haakon terminated the Bungle account. What makes the episode particularly interesting, however, was that it led to the introduction of a system of petitions and ballot initiatives, the ultimate goal of which was to complete the transition from wizardocracy to democracy.

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As Jennifer Mnookin relates (Chapter 16), there was subsequently a debate on LambdaMOO between the "formalizers" and the "resisters", where the formalizers were inclined to codify the laws for LambdaMOO, and the resisters hesitated, arguing that LambdaMOO is supposed to be a game, and therefore shouldn't be taken too seriously. As Mnookin notes, however, the point of view of the formalizers generally held sway, and a number of ballot initiatives were offered (some enacted) which indentified specific MOO crimes. One example which ultimately did not pass (it did not receive a 2/3 majority), was the following initiative, which attempted to define "MOOrape" and to distinguish it from "speech".

A virtual "rape", also known as "MOOrape", is defined within LambdaMOO as a sexually-related act of a violent or acutely debasing or profoundly humiliating nature against a character who has not explicitly consented to the interaction. Any act which explicitly references the non-consensual, involuntary exposure, manipulation, or touching of sexual organs of or by a character is considered an act of this nature.
An "act" is considered, for the purposes of this petition, to be a use of "emote" (locally or remotely), a spoof, or a use of another verb performing the equivalent presentation, whether by a character or by an object controlled by a character.
The use of "say", "page", and "whisper" . . . and other functionality creating an equivalent sense of quotation generally are not considered "acts" under this petition; they are considered "speech". Notes, mail messages, descriptions, and other public media of communication within LambdaMOO that provide a sense of quotation or written expression rather than conveying action are also forms of "speech". This petition should not be interpreted to abridge freedom of speech within LambdaMOO community standards. Communications in the form of speech might still be considered offensive and harassing, but generally are not considered virtual rape unless they explicitly and provokingly reference a character performing the actions associated with rape.
In addition, as Mnookin notes, a number of proposals for legal oversight and mediation were debated and in some instances introduced.
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An interesting question arises when we begin to consider whether MOO crimes in a particular vitual environment should carry over to another virtual environment, or indeed to "real life" (RL). One very interesting instance of this question came about in the "SamIam" incident, in which a judicial decision made on LambdaMOO was carried over to another virtual community - MIT's MediaMOO, which was run by Amy Bruckman. What makes the episode particularly remarkable is that MediaMOO was a rather different environment from LambdaMOO. It did not have its roots in Dungeons and Dragons gaming, but rather was a text-based environment where individuals engaged in media research could meet, socialize and discuss their work. The administrators of MediaMOO were not "wizards" but were rather called "janitors". Like, LambdaMOO, however, dispute resolution had been passed from the administrators (in this case to an elected advisory council).
As discussed by Charles Stivale (Chapter 17) a dispute between two LambdaMOO denizens - SamIam and gru - took place on LambdaMOO in 1994. Because of the delicacy of the charges, the normal dispute-resolution procedures were suspended, and the net result of the deliberation was that SamIam was "newted" or suspended for six months. Shortly thereafter, the advisory council on MediaMOO met and suspended SamIam on the basis of charges "imported from" LambdaMOO. For Stivale one of the key concerns about the SamIam case was that it showed how easy it is for established online judicial procedures to be abrogated:
While these tales may strike some as an insider's view of "As the MOO Turns," the aftermath of these allegations is quite instructive about the delicate balance between laws that regulate site administration, interstate and, indeed, international communication, and the freedom of expression that sustains the very dynamic of these sites, asynchronous and synchronous alike. These tales stand, I would argue, as a sobering lesson of just how limited are the current efforts, however well-intentioned, to develop online cyber-democracy due to concomitant practices of distortion and infringement on rights, practices imported piecemeal from real-time personal and political processes.
Perhaps most interesting, for our purposes, are the questions that arise concerning the interlinking of legal jurisdictions in cyberspace. Despite being decidedly distinct virtual worlds, there was at least some de facto legal/political linkage between them, whether justified or not.
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By way of epilogue it is worth noting that after these events took place the advisory council on MediaMOO disbanded, and a few years after that the return of wizardly fiat on LambdaMOO was announced:

Message 300 from *News (#123):

Date: Thu May 16 11:00:54 1996 PDT

From: Haakon (#2)

To: *News (#123)

Subject: LambdaMOO Takes Another Direction

On December 9, 1992, Haakon posted 'LambdaMOO Takes A New Direction' (LTAND). Its intent was to relieve the wizards of the responsiblity for making social decisions, and to shift that burden onto the players themselves. It indicated that the wizards would thenceforth refrain from making social decisions, and serve the MOO only as technicians. Over the course of the past three and a half years, it has become obvious that this was an impossible ideal: The line between 'technical' and 'social' is not a clear one, and never can be. The harassment that ensues each time we fail to achieve the impossible is more than we are now willing to bear.

So, we now acknowledge and accept that we have unavoidably made some social decisions over the past three years, and inform you that we hold ourselves free to do so henceforth.

1. We Are Reintroducing Wizardly Fiat

=====================================

In particular, we henceforth explicitly reserve the right to make decisions that will unquestionably have social impact. We also now acknowledge that any technical decision may have social implications; we will no longer attempt to justify every action we take.

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No doubt there is good reason to draw pessimistic conclusions from these events, but Stivale for one does not appear ready give up trying to build online communities - although he also anticipates much disappointment and a very steep learning curve:

For those of us committed to participating in and developing online "micro-worlds" and to contributing to the concomitant community-building, however fluid and even ephemeral this conception of "community" may be, the "evidence" of cyber-political indifference, gridlock and lack of appropriate models should not deter us from attempting to pursue modes of governance that fall prey neither to the pitfalls of democracy, nor to the traps of democracy's "alternative," particularly of the dictatorial form. This experimentation with the medium at our disposal is but one phase in a learning process that is far from complete and that might yield some unforeseen results, in some flickering virtual space-time.

I don't mean to give the impression that all of the interesting developments in "cyberlaw" have revolved around dispute resolution in MUDs and MOOs. In section III of this collection we already saw that very real jurisdictional issues are emerging and that kinds cyberlaw may emerge to cover certain domains of online commerce. As David Johnson observes (Chapter 18) we are already into interesting questions of cyberlaw when we consider the issue of the system operator's power to ban someone from an online domain. This might involve a case like SamIam, discussed above, or it may involve removing someone's web site from a certain location, or it may involve banning someone from a particular chat room. Of course users can move to a new virtual community much more easily than they can move to another geographic territory, but as Johnson notes individuals may have invested considerable time in building reputations on a particular site, so an arbitrary decision by a system administrator to terminate an account cannot simply be shrugged off.

Cyberlaw ultimately therefore emerges in response to conflicts between system administrators and users rather than between RW governments and their citizens, and there is a corresponding different fabric to the nature of the laws that will emerge. Johnson, catalogues some of the new legal strategies that will emerge, including online forms of dispute resolution. Some attempts at online dispute resolution (beyond those in communities like LambdaMOO) have already been put into effect, including the online Virtual Magistrate (Chapters 19 and 20).

The scope of all of these efforts is certainly narrow, but it would be a mistake to conclude from this that they will not evolve into full blown legal systems with profound impact on future legal theory worldwide. It is important to remember that our current systems of law have humble and in some cases whimsical beginnings (in the English-speaking world we can look to the laws of the Anglo-Saxon Kingdoms or to the laws of feudalism after the Norman Conquest). Rather than be dismissive, we should perhaps consider the possibility that we are witnessing the birth of the juridical systems and practices of the new millennium.

Even if the outcome is less grandiose, there is certainly much to be learned from the experimentation - a point summed up aptly by Mnookin:

In an often-quoted dissenting opinion, Justice Louis Brandeis wrote, "It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." Sixty years later, it may be virtual spaces that can best serve as laboratories for experimentation, places in which participants can test creative social, political and legal arrangements.

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Utopia, Dystopia, and Pirate Utopias

If we really are constructing new legal systems and institutions (or at least experimenting with them) is it also possible to speculate that we are in a unique position to optimize these institutions? - to actually improve them to the point where genuine utopias might emerge? Here it is easy to get caught up in some of the utopian fervor that is gripping a number of commentators on the digital revolution, from Kevin Kelly, to Douglas Rushkoff, to Lou Rossetto and John Perry Barlow. Karrie Jacobs (Chapter 21) catalogues some of the utopian claims by these individuals, and notes that all the above authors have ignored the fact that "the electronic culture in which they operate is still largely run by white men (and written about by them; see 'Scenarios: the Future of the Future,' published by Wired in October, 1995) and still dominated by big corporations such as ATT, Microsoft and Sony." Things might appear less utopian to Kelly et al if they were not affluent white males. But, referring specifically to Thomas More's Utopia, Jacobs also offers that utopian visions in an of themselves are not always so attractive:

What strikes me as the most oppressive--and familiar--quality of More's island state is the fact that Utopians couldn't escape the confines of their own lives because every place on the island was the same as every other place.

"There are 54 cities on the island, all spacious and magnificent, identical in language, customs, institutions, and laws," More wrote. "So far as the location permits, all of them are built on the same plan and have the same appearance."

More might have been writing about America's shopping malls or Holiday Inns. Or his description could apply to the cities built by Soviet architects 450 years after his death, with their identical apartment blocks punctuated every mile or so by a grim public square, a token shopping area, a pub, and a drab community center.

Reflections of the original Utopia-- a word, by the way, that literally means "no-place"--can also be seen in the way software designers have repackaged the world. You can go anywhere on the Web with Netscape and you will still be within the familiar confines of your "navigator." Like More's Utopia, the Net is a place where "if you know one of their cities, you know them all." Whether hopping from web site to web site or getting money from an ATM, the electronic world is a place with a limited range of gestures.

Of course there is room to take issue with Jacobs on this latter point. While browser interfaces are more or less standardized, the locations that we visit with those browsers are fairly diverse. There is, for example, a big difference between the text based virtual environments of LambdaMOO and MediaMOO, and those two MOOs are in turn quite different from virtual communities like the WELL. The question is not whether the Net will be a utopia, but whether there will be utopias on the Net - and what varieties they will come in.

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Still, there is conceit in thinking that we can make better worlds simply by emigrating to the online world and starting over. This is one of the points that is made by Jedediah Purdy (Chapter 22) when he takes aim at Kevin Kelly et al and in particular at the general the moral perspective of the prophets of Wired magazine. About the flight by some to virtual communities, Purdy is hardly charitable:

A few people, mostly college students, have largely withdrawn from their embodied lives to participate in virtual communities. Kelly wants this practice to go much further, to see more people inhabiting specialized online communities, sometimes of their own making. Creating these worlds extends "life," and "every creative act is no more or less than the reenactment of the Creation." By entering these realms, their programmers reproduce the "old theme" of "the god who lowered himself into his own world." Kelly identifies this theme with Jesus, but one wonders if Narcissus is not a more appropriate touchstone for his ambition.

But more generally, Purdy sees the Wired philosophy as being "contemptuous of all limits-of law, community, morality, place, even embodiment."

The magazine's ideal is the unbounded individual who, when something looks good to him, will do it, buy it, invent it, or become it without delay. This temperament seeks comradeship only among its perceived equals in self-invention and world making; rather than scorn the less exalted, it is likely to forget their existence altogether. Boundless individualism, in which law, community, and every activity are radically voluntary, is an adolescent doctrine, a fantasy shopping trip without end.

This criticism is obviously aimed at Wired magazine and it's techno-libertarian ideals, but there are also lessons for online communities. Are they exclusively going to be retreats where libidos can run wild, or are some of them going to become real communities where persons depend upon each other? In section IV we saw a number of examples where virtual communities like Lambda MOO evolved away from adolescent fantasy worlds into real communities with (in my opinion) real laws. One hopes that many of those who opt for virtual communities will reject the Wired ideology and proceed to build viable communities. In building such communities they need not buy into Kelly's hubris that they are thereby "reenacting the Creation."

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While it is certainly important to identify the Wired ideology and warn of it's corrosive nature, it is also valuable to try and understand its origins and see how it fits into the broader context of American political life. Richard Barbrook and Andy Cameron (Chapter 23) address this question by examining what they call the "California Ideology" underlying much of the thinking exhibited by Kelly, Rossetto, etc. In their view the ideology is the result of a tension faced by "hi-tech artisans" -- the information technology professionals who are well paid, but are under contract and hence face uncertain futures:

Living within a contract culture, the hi-tech artisans lead a schizophrenic existence. On the one hand, they cannot challenge the primacy of the marketplace over their lives. On the other hand, they resent attempts by those in authority to encroach on their individual autonomy. By mixing New Left and New Right, the Californian Ideology provides a mystical resolution of the contradictory attitudes held by members of the 'virtual class'. Crucially, anti-statism provides the means to reconcile radical and reactionary ideas about technological progress. While the New Left resents the government for funding the military-industrial complex, the New Right attacks the state for interfering with the spontaneous dissemination of new technologies by market competition. Despite the central role played by public intervention in developing hypermedia, the Californian ideologues preach an anti-statist gospel of hi-tech libertarianism: a bizarre mish-mash of hippie anarchism and economic liberalism beefed up with lots of technological determinism.

Mark Dery takes aim at another of the digeratti -- Nicholas Negroponte, the former director of the MIT media lab and former essayist for Wired magazine. In Dery's view, Negroponte's utopian visions of the future are striking for the way in which they consistently leave out the social dimension of life:

Troubling thoughts of social ills such as crime and unemployment and homelessness rarely crease the Negroponte brow. In fact, he's strangely uninterested in social anything, from neighborhood life to national politics. Despite his insistence that the Digital Revolutiontm is about communication, not computers, there's no real civic life or public sphere to speak of, in his future.

There, most of the communicating takes place between you and talkative doorknobs or "interface agents" such as the "eight inch-high holographic assistants walking across your desk." In the next millennium, predicts Negroponte, "we will find that we are talking as much or more with machines than we are with humans." Thus, the Information Age autism of his wistful "dream for the interface": that "computers will be more like people." Appliances and household fixtures enjoy a rich social life in Negroponte's future, exchanging electronic "handshakes" and "mating calls": "If your refrigerator notices that you are out of milk," he writes, "it can 'ask' your car to remind you to pick some up on your way home." Human community, meanwhile, consists of "digital neighborhoods in which physical space will be irrelevant": knowledge workers dialing in from their electronic cocoons, squeezing their social lives through phonelines.

As Dery also notes, Negroponte's utopia is often "Jetsonian" in it's fetish for gadgets like holographic assistants and talking appliances -- there is something quaint and old fashioned about it. But the old fashioned nature of Negroponte's utopia is not restricted to the technology. It also robustly manifests itself in the elitism of the digeratti -- the very same elitism which Jacobs, Purdy, Barbrook and Cameron took exception to. Dery sums this point up nicely:

[The digeratti] and the world they inhabit is a memory of futures past: the top-down technocracies of the 1939 World's Fair or Disney's Tomorrowland, socially engineered utopias presumably overseen by the visionary elites who "basically drive civilization," as Stewart Brand famously informed the Los Angeles Times.

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Sometimes we celebrate individuals as being cutting edge thinkers, when in reality they are nothing more than old time hucksters, repackaging tired ideas (perhaps calling them "wired" ideas) but breaking no new ground where it matters. No doubt the media will continue to fete these individuals and their "vision". That does not mean that we must do so as well. The digeratti of the utopian visions of Wired are nothing more than repackaged versions of the Guardians of Plato's Republic and the Samurai caste of H.G. Wells' A Modern Utopia. To suppose that the digeratti are capable of driving civilization anywhere interesting is a mistake born of an old idea, adopted without reflection, and no doubt fueled by the boundless narcissism of this new class of elite. George Orwell once remarked that H.G. Wells' A Modern Utopia was "the paradise of little fat men." We might add that the utopian visions of the digeratti are the paradise of self-absorbed white guys.

So where are we? Are utopian visions passe? Are online encounters really just exercises in alienating ourselves from embodiment and community? I wish to close on an optimistic note, and I think that properly informed by the above critiques we can navigate a path in which life online can be edifying and in which utopian thinking can make sense.

Clearly we don't want the kind of utopia that Thomas More offered -- the kind from which Karrie Jacobs so understandably recoils. There is nothing attractive about a world without diversity. Likewise, there is no genuine appeal to the adolescent male fantasy worlds envisioned by Kelly and Negroponte; there is certainly nothing worthwhile in a world where community withers to the point that household appliances have better social lives than we do. Just as clearly, there is only limited appeal to online communities if we take them as being hermetically sealed off from the rest of our lives or if they can never evolve beyond Dungeons and Dragons role playing.

But we know for a fact that online environments can foster genuine personal relationships and genuine communities, and that these online friendships often spill over into face to face meetings and RW friendships (See Section V of High Noon on the Electronic Frontier for numerous examples). We also know that there can be great variation in the fabric and structure of online meeting places and that the participants can take active roles in improving these meeting places. As we saw in section IV, there has been significant experimentation in law making and conflict resolution. Moreover, I think that it is in this variation and experimentation that we can seriously talk about utopias.

As Dery rightly points out, the utopias envisioned by the digeratti are painfully old-fashioned -- "driven" by elites and engineered around Jetsonian techno-fetish gadgetry. The kinds of utopias that we should rather aspire to may be community based, experimental, dynamic (in the sense that they constantly change), and perhaps shortlived. They may be places carved out of cyberspace and protected by encryption technology, and they may nonetheless be squashed out of existence by government action or by "economic reality." But this makes them no less utopian.

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The final reading (Chapter 25) is part of Hakim Bey's fringe culture classic, Temporary Autonomous Zones -- a book that illustrates some examples of the kinds of utopias I think possible. For Bey, Temporary Autonomous Zones (TAZs) represent an alternative to head-on encounters with entrenched powers -- encounters that lead to martyrdom at best:

The TAZ is like an uprising which does not engage directly with the State, a guerilla operation which liberates an area (of land, of time, of imagination) and then dissolves itself to re-form elsewhere/elsewhen, before the State can crush it. Because the State is concerned primarily with Simulation rather than substance, the TAZ can "occupy" these areas clandestinely and carry on its festal purposes for quite a while in relative peace. Perhaps certain small TAZs have lasted whole lifetimes because they went unnoticed, like hillbilly enclaves--because they never intersected with the Spectacle, never appeared outside that real life which is invisible to the agents of Simulation.

Bey draws an analogy to what he calls the "pirate utopias" of the 18th century:

The sea-rovers and corsairs of the 18th century created an "information network" that spanned the globe: primitive and devoted primarily to grim business, the net nevertheless functioned admirably. Scattered throughout the net were islands, remote hideouts where ships could be watered and provisioned, booty traded for luxuries and necessities. Some of these islands supported "intentional communities," whole mini-societies living consciously outside the law and determined to keep it up, even if only for a short but merry life.

Perhaps there are creases -- "islands in the Net", to borrow a phrase from Bruce Sterling -- in which we can form better worlds, if only for brief periods. Perhaps these islands will be made possible by encryption technology or perhaps they will simply be out-of-the-way MOOs or BBSs that the State cannot concern itself with. Within these spaces experimentation with governance structures will be possible and some of them may lead to communities that seem utopian to their denizens. These episodes will doubtless be temporary and may well dissolve from within, but that does not diminish their value, for some of them will provide alternatives to the top-down elitist would-be utopias led by the Guardians, the Samurai, or the digeratti. Indeed, their transience and permeability is ultimately important, for they should not be locations for escape from the world, but rather places where we can rest, have fun, educate ourselves, yet never lose sight of the business of helping each other (on this last point there is an apparent departure from the original pirate utopias).

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The part about having fun should not be overlooked. It is, I think, one of the root concerns of Hakim Bey, and why shouldn't it be? Bey's language is audacious, of course; some would say it's over the top. But his talk of insurrection and hillbillies and pirate enclaves is at bottom designed to free the imagination and to allow us to have some fun -- to perhaps escape from the boardroom tech-speak of Nicholas Negroponte and infuse our thoughts with images of islands and pirates rather than intelligent toasters. This collection of essays is, by intent, an attempt to do something in that same spirit.

Am I serious when I talk about Crypto Anarchy and the death of the Nation State? Do I seriously think it is plausible to talk about the sovereignty of Cyberspace? Do I really think the wizzardocracy of LambdaMOO is a serious government? Am I serious about the MOO denizens really creating "laws"? The answer to all these questions is both yes and no. It is both because of an ambiguity in the meaning of 'serious'; these are all fundamentally serious questions, but we can have lots of fun while we entertain them.

But, some might ask, are these online institutions "really real"? Questions like this strike me as poorly motivated. Why do we suppose that because there is play and fun involved that "reality" cannot be part of the equation? On this point, the concluding paragraph from Hakim Bey is apt:

Let us admit that we have attended parties where for one brief night a republic of gratified desires was attained. Shall we not confess that the politics of that night have more reality and force for us than those of, say, the entire U.S. Government? Some of the "parties" we've mentioned lasted for two or three years. Is this something worth imagining, worth fighting for? Let us study invisibility, webworking, psychic nomadism--and who knows what we might attain?

Indeed. Who knows?

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