ABSTRACT
In his famous address, A Declaration of the Independence of Cyberspace,1
arch-cyber-libertarian John Perry Barlow informed the ‘Governments of the Industrial World’ that ‘you [do not] possess any methods of enforcement we have true reason to fear . . . our identities have no bodies, so, unlike you, we cannot obtain order by physical coercion’. This powerful challenge to traditional regulators reflected the cyber-libertarian ethos, discussed in Chapter 1, that laws could not succeed in cyberspace due to the physical nature of the place. As we saw in that earlier discussion, the cyber-libertarian ethos was founded upon the twin foundations of the ‘unregulability of bits’2 and the ability of internet users to transcend borders without challenge.3 Laws, like all other regulatory control systems, consist of three elements: a director, a detector and an effector.4 Directors are standards, detectors are means of detecting some deviation from the standards and effectors are mechanisms for pushing deviant behaviour back towards the standard. The ‘unregulability of bits’ thesis suggested to cyber-libertarians such as Barlow that there were no functional effectors that could be used to enforce traditional laws in cyberspace as effectors used in traditional legal-regulatory control systems such as
imprisonment, fines and orders for specific performance would prove to be ineffective against digital personae who have no physicality, identity or fiscal funds. Thus traditional laws and law-making, based upon the concept physicality, were rendered ineffective in cyberspace in the true sense of the word. In addition, the lack of borders within cyberspace suggested to cyberlibertarians that traditional state sovereignty, based upon notions of physical borders, would be undermined in cyberspace as individuals could move seamlessly between zones governed by differing regulatory regimes in accordance with their personal preferences. This, the cyber-libertarians believed, would foster regulatory arbitrage and undermine traditional hierarchically structured systems of control. Basing their beliefs upon these two foundational concepts the cyber-libertarians argued that the lack of a physical presence to cyberspace effectively undermined traditional laws and law-making, which are based upon the concept of physicality of goods and persons.5
