: Code 2.0

Problems with Legislators

Problems with Legislators

At a conference in former Soviet Georgia, sponsored by some Western agency of democracy, an Irish lawyer was trying to explain to the Georgians what was so great about a system of judicial review (the system by which courts can strike down the acts of a parliament). Judicial review, he enthused, is wonderful. Whenever the court strikes down an act of parliament, the people naturally align themselves with the court, against the parliament. The parliament, people believe, is just political; the supreme court, they think, is principled. A Georgian friend, puppy-democrat that he was, asked, So why is it that in a democracy the people are loyal to a nondemocratic institution and repulsed by the democratic institution in the system? You just dont understand democracy, said the lawyer.

When we think about the question of governing cyberspace when we think about the questions of choice Ive sketched, especially those raised in Part III we are likely to get a sinking feeling. It seems impossibly difficult, this idea of governing cyberspace. Who is cyberspace? Where would it vote? The very idea seems abhorrent to cyberspace itself.

But the problem here is not with governance in cyberspace. Our problem is with governance itself. There is no special set of dilemmas that cyberspace will present; there are only the familiar dilemmas of modern governance, but in a new place. Some things are different; the target of governance is different; the scope of international concerns is different. But the difficulty with governance will not come from this different target; the difficulty comes from our problem with governance.

Throughout this book, Ive worked to identify the choices that cyberspace will present. Ive argued that its very architecture is up for grabs and that, depending on who grabs it, there are several different ways it could turn out. Clearly some of these choices are collective about how we collectively will live in this space. One would have thought that collective choices were problems of governance, but very few of us would want government to make these choices. Government seems the solution to no problem we have, and we should understand why this is. We should understand the Irish lawyer in all of us.

Our skepticism is not a point about principle. Most of us are not libertarians. We may be antigovernment, but for the most part we believe that there are collective values that ought to regulate private action. ( Collective just in the sense that all individuals acting alone will produce less of that value than if that individual action could be coordinated.) We are also committed to the idea that collective values should regulate the emerging technical world. Our problem is that we do not know how it should be regulated, or by whom. And we fear that the values that will be embraced are not the correct ones.

Like the Irish lawyer, we are weary of governments. We are profoundly skeptical about the product of democratic politics. We believe, rightly or not, that these processes have been captured by special interests more concerned with individual than collective values. Although we believe that there is a role for collective judgments, we are repulsed by the idea of placing the design of something as important as the Internet into the hands of governments.

The examples here are many, and the pattern is arresting. The single unifying message in the governments own description of its role in cyberspace is that it should simply get out of the way. In the area of Internet commerce, the government says, commerce should take care of itself. ( Of course, at the same time, the government is passing all sorts of laws to increase the protections for intellectual property.) The government is also seemingly enthusiastic about regulating indecent content regardless of the thriving commerce in it.

A perfect example of this point is the governments hand-off of control of the management of the domain name system. For some time the government had been thinking about how best to continue the governance or control of the domain name system.[24] It had originally farmed the work out under National Science Foundation contracts, first to a California nonprofit organized by the late Jon Postel, and then to a private for-profit corporation, Network Solutions.

The contracts were due to lapse in 1998, however, and for a year the government thought in earnest about what it should do. In June 1998 it released a White Paper calling for the establishment of a nonprofit corporation devoted to the collective interest of the Internet as a whole and charged with deciding the policy questions relating to governing the domain name system. Policy-making power was to be taken away from government and placed with an organization outside its control. In 1998, that policy was effected through the creation of the Internet Corporation for Assigned Names and Numbers (ICANN), which, according to its webpage, is

dedicated to preserving the operational stability of the Internet; to promoting competition; to achieving broad representation of global Internet communities; and to developing policy appropriate to its mission through bottom-up, consensus-based processes. ICANN, a public benefit, non-profit entity, is the international organization responsible for the management and oversight of the coordination of the Internets domain name system and its unique identifiers.[25]

Think about the kinds of questions my Georgian friend might ask about this move. A nonprofit corporation devoted to the collective interest? Isnt that just what government is supposed to be? A board composed of representative stakeholders? Isnt that what a Congress is? Indeed, my Georgian friend might observe that this corporate structure differs from government in only one salient way there is no ongoing requirement of elections.

This is policy making vested in what is in effect an independent agency, but one wholly outside the democratic process. And what does this say about us? What does it mean when our natural instinct is to put policy-making power in bodies outside the democratic process?

First, it reflects the pathetic resignation that most of us feel about the products of ordinary government. We have lost faith in the idea that the product of representative government might be something more than mere interest that, to steal the opening line from Justice Marshalls last Supreme Court opinion, power, not reason, is now the currency of deliberative democracy.[26] We have lost the idea that ordinary government might work, and so deep is this despair that not even government thinks the government should have a role in governing cyberspace.

I understand this resignation, but it is something we must overcome. We must isolate the cause and separate it from the effect. If we hate government, it is not because the idea of collective values is anathema. If we hate government, it is because we have grown tired of our own government. We have grown weary of its betrayals, of its games, of the interests that control it. But we must find a way to get over that weariness.

One central cause of the dysfunction of government is the corruption suggested by the way government is elected. I dont mean corruption in the traditional sense that saps the energy from so many developing nations. I dont believe congressmen are on the take (Californias Randy Cunningham is an exception, of course[27]); I dont believe their motives are impure. They are trying to do the best they can in the world they inhabit. But it is that world that is the problem.

For with that world, money controls attention. To become a member of the House of Representatives, you have to run. In 2004, if you ran in an open district, then you spent on average $1,086,437. If you won, you spent $1,442,216. If you ran against an incumbent in 2004, then theres a 97.5 percent chance you didnt win. (Only eight challengers won.) In the Senate, only one challenger defeated a sitting senator in 2004. Incumbency means life tenure in the United States. The average term for a member of Congress rivals the average term for a Supreme Court Justice.[28]

To raise this money, members of Congress must spend their time making those with money happy. They do this by listening to their problems, and sometimes, pushing legislation that will solve those problems. That sounds harmless enough, until you begin to realize just how much time they spend doing this fundraising. Former Senator Hollings estimated that one-third of a senators time is spent fundraising.[29] Thats probably a significant underestimate.[30]

Now just think about how absurd these priorities are. Congressmen work for us. If an employee of a restaurant spent 33 percent of her time arranging to get to work, shed be fired. But thats essentially what happens in Washington. The most significant chunk of time for members of Congress is time spent to raise money to remain members of Congress. Is this really what we pay them for?

The problem here is not so much that members of Congress arent doing their work. The problem is the way their work gets queered by this need to raise money. The easiest targets for fundraising are the clientsof the lobbyists, and the lobbyists have lots of ideas about how to bend the law to benefit their clients.

And so Congress bends, andthe law gets changed to benefit the most powerful in the economy. This is not capitalism as much as lobby-ism. Our economy is defined by a combination of laws benefiting some and power benefiting some.

To crack through lobbyism, you need a way to get the attention of members of Congress. But until the system is changed, the only way to get their attention is money. This is the cycle. Its results for democracy are vicious. Our Congress sees only what a small set want them to see. And what they see often has no obvious connection to the truth.

If there is a decision to be made about how cyberspace will grow, then that decision will be made. The only question is by whom. We can stand by and do nothing as these choices are made by others, by those who will not simply stand by. Or we can try to imagine a world where choice can again be made collectively and responsibly.


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