In Defense of Rule of Law & "Cyber-Conservatism"

Many thanks to Adam Thierer of the Technology Liberation Front, for selecting my book, Search & Destroy, as a top twenty most Important Cyber-Law & Info-Tech Policy books of 2011 because “it represented the beginning of an articulation of a philosophy of “cyber-conservatism.”  I also thank Adam for his critical and insightful review of Search & Destroy, which clearly delineates his principled cyber-libertarian differences with my principled “cyber-conservative” views.

I have great respect for Adam as a thinker, as an exceptionally well-read scholar, and as a resource/mentor to me personally when I have been in the process of reaching my own conclusions on some emerging issues. While we are in strong philosophical alignment as most libertarians and conservatives are in defense of liberty, free enterprise and limited government generally, Adam’s review of Search & Destroy was correct in that we disagree quite sharply in our specific philosophical views concerning the actual limits of Government’s limited role when it comes to the specific issues of online security, property rights, and privacy, and to the general issue of antitrust enforcement overall. We disagree to a sufficient extent that Adam accurately categorized my cyber-conservative views as separate and distinct from his cyber-libertarianism, and the left’s cyber-progressivism.

As usual, Adam was tremendously insightful to glean that my book, Search & Destroy: Why You Can’t Trust Google Inc., was: “nominally about Google, but is really a profoundly skeptical look at the modern information economy as we know it. Indeed Cleland’s book might have been more appropriately titled, “Second Thoughts about Cyberspace. In a sense, it represents an outline for an emerging “cyber-conservative vision that aims to counter both “cyber-progressive” and “cyber-libertarian” schools of thinking.”

You are right and insightful Adam. I like most others embrace the extraordinary positives and transformative innovations and benefits of the Internet, but “cyber-conservatives” are unwilling to turn a blind eye to the growing lawless dark side of the Internet: cyber-crime, cyber-attacks, cyber-terrorism, cyber-theft, cyber-fraud, cyber-stalking/manipulation etc.

At bottom the Internet is simply a tool, which can be used for good or wrongdoing. Where conservatives and libertarians begin to part ways is when their unified goal of limiting government goes so far as to become tolerance for, or acceptance of, lawlessness.

Google, as the single most pervasive, powerful, and leading force and scofflaw on the Internet, was certainly the example, device and organizing principle of my book; but Adam was spot on to recognize that my book was intended to be much more.  I and my co-author, Ira Brodsky, wanted to produce an important and broad critique of the Internet from the many fundamental perspectives of: privacy, property rights, security, antitrust, conflicts of interest, accountability, ethics, politics, policy and the future.

Cyber-conservatives and cyber-libertarians both strongly believe in limited government because there can be no liberty in anarchy, where people and property are not safe or secure; where there is no rule of law or enforceable contracts; and where there is no protection from, or recourse against, bad actors’ fraud or harms.

If we agree that there is some necessary basic limited function of government, which I believe we do, then the differences between cyber-libertarians and cyber-conservatives narrow to this point: What are the legitimate uses and limits of government to preserve liberty against the clear and present danger caused by the misuse of technology? Apparently many cyber-libertarians see little to no role for government in protecting people via protecting their online cyber-security, property, and privacy, and no role for enforcement against abuse of monopoly power or deceptive business practices. Cyber-conservatives, on the other hand, see a limited law enforcement role for Government in protecting individuals in the arenas of security, property rights, privacy and antitrust.

Adam has liked a binary frame of Internet thinkers: on one side there are cyber-optimists, he and other cyber-libertarians, and on the other side there are cyber-pessimists, who have concerns about Internet bad acts and harms. I know Adam appreciates the binary frame is overly simplistic, because he forthrightly recognizes my work to define a cyber-conservative view that does not neatly fit into the optimist/pessimist frame.

I consider cyber-conservatives as cyber-realists, who appreciate the need to strongly limit government’s natural bureaucratic tendency toward excessive, intrusive, centralized and “Mother-may-I?” economic regulation of the Internet (like for example net neutrality), in order to foster free enterprise, innovation, growth, and solutions to problems. However, at the same time we cyber-realists/conservatives see the need for some limited role for government rule of law and law enforcement in order to protect individuals from the stark and undeniable reality of the many bad actors and bad acts on the Internet. It is realistic, not pessimistic, that there are some protections of individuals and law and order that only our constitutionally-limited government can provide.

Let me repeat my core differentiating philosophical point here: technology is simply a tool. Technology is not inherently good or bad, it is how the technology is used or misused by people or entities, which determines if it is good or bad. Where I and other cyber conservatives part ways with cyber-libertarians is when some apparently put a principle of “tech freedom,” or liberty for technology, above or ahead of individuals’ or human liberty. Liberty is among the deepest human needs. But in any civil society, there is no unfettered liberty to harm others, because that undermines another’s individual liberty. And since any tool, technology, or innovation ultimately can help or hurt others, there is no basis for unfettered “tech freedom” or liberty of technology from the rule of law.

Why there is a need and an opening for cyber-conservatism is when cyber-libertarians wittingly or unwittingly put technology’s needs, or the tool of the Internet, ahead of individuals’ or society’s needs. Personifying inanimate technology and imbuing it with importance, freedoms and rights on par with or above human’s individual liberty appear to cyber-conservatives as a misapplication and stretch of the cherished principle of human liberty.

Cyber-conservatives look to the Constitution (and the rule of law it creates) as the best practical guide for sorting out what the actual limits should be on government -- and on individuals’ freedoms. Our American right to bear arms and defend ourselves confers no right to murder or to commit armed robbery. Our American right to freedom of speech confers no right or freedom to steal others’ constitutionally-protected property. Our American right to freedom of press does not confer the freedom to slander or libel. Our American right to freedom of assembly is not the freedom to riot or permanently occupy public property. And our American Constitutions’ strong protection of individual liberty, private property, creation/innovation, and free enterprise confers no right or freedom to defraud or harm others. Constitutional-limited government cyber-conservatives, like myself, believe that the rule of law applies to the Internet, so there is no Internet or “tech freedom” to trample on the liberties of individuals.

In sum, limited government is not absence of government. Limited government protects against anarchy and lawlessness. It appears to be increasingly untenable for cyber-libertarians to maintain there is no legitimate role for limited government to protect individuals’ safety, security, privacy, and property from the reality of bad actors, bad acts and real harm in cyberspace. The Internet, despite what some ideally may hope or presume, is not exempt from the reality of the rule of law.