T H R E E
is-ism :
is the way it is the way it must be?
The rise of an electronic medium that disregards geographical boundaries throws the law into disarray by creating entirely new phenomena that need to become the subject of clear legal rules but that cannot be governed, satisfactorily, by any current territorially based sovereign.
—David Johnson and David Post, [1]
Some things never change about governing the Web. Most prominent is its innate ability to resist governance in almost any form.
—Tom Steinert-Threlkeldt, [2]
IF THERE WAS A MEME THAT RULED TALK ABOUT CYBERSPACE, IT WAS THAT CYBERSPACE was a place that could not be regulated. That it “cannot be governed”; that its “nature” is to resist regulation. Not that cyberspace cannot be broken, or that government cannot shut it down. But if cyberspace exists, so first-generation thinking goes, government’s power over behavior there is quite limited. In its essence, cyberspace is a space of no control.
Nature. Essence. Innate. The way things are. This kind of rhetoric should raise suspicions in any context. It should especially raise suspicion here. If there is any place where nature has no rule, it is in cyberspace. If there is any place that is constructed, cyberspace is it. Yet the rhetoric of “essence” hides this constructedness. It misleads our intuitions in dangerous ways.
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