NEIL W. NETANEL
University of Texas, Austin
The idea that cyberspace should be presumptively self-governing has resounded in thoughtful scholarship. It has also precipitated the recent, dramatic withdrawal of the United States government from significant portions of Internet administration and regulation. This Article critiques a central prong of the argument for cyberspace self-governance: the claim that a self-governing cyberspace would more fully realize liberal democratic ideals than does nation-state representative democracy. That "cyberian" claim, in turn, has two parallel components: first, that the Internet creates possibilities for "bottom-up private ordering" that are a superior form of liberal democracy, and second, that a truly liberal nation-state must grant considerable autonomy to cyberspace "communities." These claims of liberal perfectionism and community autonomy pose an intriguing challenge to traditional democratic theory. But I believe that they ultimately fail. I argue, indeed, that an untrammeled cyberspace would prove inimical to the ideals of liberal democracy. It would free majorities to trample upon minorities and would serve as a breeding ground for invidious status discrimination, narrow casting and mainstreaming content selection, systematic invasions of privacy, and gross inequalities in the distribution of basic requisites for citizenship in the information age. Accordingly, I argue, that selective state regulation of cyberspace is warranted to protect and promote liberal ideals. I maintain as well that in the absence of regulation by a democratic state, cyberians would be forced to try to invent a quasi-state institution to legislate and enforce meta-norms governing critical aspects of cyberspace organization and operation. Even if cyberians were successfully to establish such an institution, it would, at best, suffer from much the same democratic deficit as, according to cyberians, characterizes nation-state representative democracy.