Reading list: Julie Cohen on internet exceptionalism's failures

Julie E. Cohen, Internet Utopianism and the Practical Inevitability of Law, 18 Duke L. & Tech. Rev. 85 (2019)

From the Introduction:

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: utopianism about platforms for distributed cultural and political production (and concomitant failure to reckon with the transformative force of informational capitalism); utopianism about anonymity as a force for institutional disruption (and concomitant failure to acknowledge the essential role of institutions in cabining the human capacity for malice and mayhem); and utopianism about the relationship between information and communication networks and human freedom (and concomitant failure to contend with the powerful and inherently informational mechanisms by which existing protections for human rights are increasingly outflanked and coopted). 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.