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Chapter 14. Sovereignty

Chapter 14. Sovereignty

Vietnam is a Communist nation. It is one of the few remaining Communist states, and, of course, its communism is nothing like the communism that gave birth to the Cold War. But nonetheless, it is a sovereign nation that still links its identity to Marx and Lenin (through Chairman Ho).

The United States is not a Communist nation. Defeated by Vietnam, but a victor in the Cold War, we are a nation that in large part defines itself in opposition to the ideology of Marx and Lenin. Vietnam sets the state in service of the withering of the state as its ideal; the United States sets the withered state in the service of liberty as its ideal. Control is the model of communism; freedom is the model of the United States.

Or so we are to think.

I confess a certain fascination with Communist states. In the early 1980s I wandered through every European Communist state that would let me in. In the early 1990s, I worked with constitutionalists in Georgia as they drafted their constitution. And in 1996, I spent much of the summer wandering through Vietnam. Alone and e-mail-free, I tried to understand this place that in my childhood fell victim to my nation’s exported struggle with the Cold War.

Though I’ve been to many different places around the world, I’ve never been to a place more spectacular. One is always overwhelmed by forgiveness, and an American can’t help being overwhelmed by this nation’s warmth and welcome. Perhaps had we “won” the war forgiveness would not be so forthcoming. But it apparently comes easily to those who did win.

I wasn’t there, however, to understand forgiveness. I wanted to learn something about how the place ran. I wanted to understand how this state exercises control over its citizens; how it continues to regulate; how it qualifies as one of the last remaining Communist states. So I spent time talking to lawyers, businessmen, and managers of the emerging Net in Vietnam ( “NetNam”). Very quickly, a surprising picture emerged.

Though the ideology of a Communist state admits very little limitation on the power of the state; though the Vietnamese state sets as its ideal a common good rather than the good of individuals or individual liberty; though on paper there is no “liberty” in Vietnam in the sense that we in the West like to imagine it — though all this is true, I could not escape the feeling that people in Vietnam, in their day-to-day existence, are far less “regulated” than people in the United States. Not all people, of course: Political opponents undoubtedly feel the power of the state quite forcefully. But I sensed that ordinary people in their ordinary lives, many running small shops, had no conception of the control that government can exercise; no experience of having their wages reported to a central bureaucracy once a quarter; no understanding of what it is like to live under the (relative) efficiency of the regulation we have here. Life there is remarkably free from governmental control. It was hard to imagine how it would have been different had Nixon won the war. Pornography was banned and hippies were harassed, but in the main, people and business got on with very little direct or effective regulation by government.

This fact (if you’ll allow random observations of an untrained anthropologist to count as fact) is not hard to understand. The “law” on the books in Vietnam may or may not be a stricter or more extensive regulator than the “law” in the United States. But the architecture of life in Vietnam clearly makes any real regulation by the state impossible. There is no infrastructure of control — there is barely any infrastructure at all. Whatever the regulations of the state may be, there is no architecture that could make them effective. Even if there is more regulation there than here (and frankly I doubt that there is), Vietnam has an effective “freedom.”

This makes perfect sense. The power to regulate is a function of architecture as much as of ideology; architectures enable regulation as well as constrain it. To understand the power a government might have, we must understand the architectures within which it governs.

The preceding chapters have all been about this very point. We can have an idea of sovereign power — the power of the sovereign to regulate or control behavior — but the significance of that power gets realized in a particular context. The state’s power may be “absolute”, but if the architecture does not support regulation, the state’s effective power is quite slight. On the other hand, the state’s power may be limited, but if the architectures of control are very efficient, this limited power can be extraordinarily extensive. To understand a state’s power to regulate we must ask: How well does its infrastructure support regulation?

This is the question we should ask about cyberspace, as a first step to understanding sovereignty there. What power do sovereigns have to regulate life in cyberspace? How do the modalities of regulation help or limit that power?

We’ll consider this question in three parts, two of which are the subject of this chapter. First, what is the nature of the sovereignty in cyberspace? How is it different from the sovereignty of France? Second, what limits the sovereignty of cyberspace? And third, the subject the next section, how will sovereigns interact in the regulation of cyberspace, not so much to control behavior there as to control the effects of that behavior here? How will they compete?

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