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David Post, Jefferson and a moose

Jonathan Zittrain introduces David Post of Temple Law School as “one of the framers of the field” of cyberspace governance. With David Johnson, Post laid down much of the track for an argument sometimes referred to as “internet exceptionalism”, an argument that the Internet won’t be – or shouldn’t be – governed in the same way that other spaces are governed by states. Zittrain argues that this argument was strong enough that it took Jack Goldsmith and Tim Wu ten years to develop their counterargument, articulated in their influential book “Who Controls the Internet“.

If Goldsmith and Wu can be summarized on a bumpersticker – “States have guns, and you don’t” – David Post’s new book is much harder to summarize. His recent work, “In Search of Jefferson’s Moose: Notes on the State of Cyberspace”, is a conversation with Jefferson’s ideas about building representative, republican government and the implications of those ideas for cyberspace.

The book has been a long time coming. In 1995, Post put a proto-blog post on the Electronic Frontier Foundation’s newfangled “web site” called “Jefferson in Cyberspace”. It’s hard to know which facet of Jefferson’s intellect to apply to the Internet – after all, John F. Kennedy once told a gathering of nobel laureates, “I think this is the most extraordinary collection of talent, of human knowledge, that has ever been gathered together at the White House, with the possible exception of when Thomas Jefferson dined alone.” Post references an aphorism by Archilochus, “The fox knows many things, but the hedgehog knows one big thing.” Jefferson may be one of those rare intellects who knew many huge things – he was a leading expert on linguistic evolution, viniculture, plow design, cartography, architecture and other fields. “He may not have all the answers, but was asking the right questions.”

Post takes his title from an extremely quirky Jeffersonian story. In 1787, when Jefferson was serving as American ambassador to France, he had the carcass, bones and antlers of a male moose, seven feet tall at the shoulders, shipped to him and reassembled in the entry hall of his residence. Jefferson’s letters and notes suggest that the moose was extremely precious to him.

There was a point to the moose. Jefferson was engaged in a debate with European scientists about the size of animals in the “new world”. European scientists advanced a theory that new world animals were smaller, “degenerate” versions of their European cousins, a view that Jefferson strongly disputed. “The moose was the coup de grace,” Post tells us. “He wanted a bison as well, but couldn’t get one.”

It turns out that Jefferson was right on this debate. And this study of scale of animals helped give Jefferson the solution to one of the great problems of government, the scaling of republican government to cover an entire continent. Many wise political thinkers argued that representative government could only work in small communities – Montesquieu believed this so strongly that there’s a law to that effect named for him. Alexander Hamilton believed a republic couldn’t scale and worried that the thirteen colonies might already be too large to be governed as a republic. The Whiskey Rebellion suggested this might be true – if we can’t control Pittsburgh, how can we govern an even larger country?

But Jefferson figured it out, guiding US expansion westward, by proposing a model that allowed groups of 20,000 people to hold their own constitutional conventions and found states that would enter the union as equals to the original colonies. This allowed for radical expansion, like the Louisiana Purchase, and ultimately enabled a nation that spans from the Atlantic to the Pacific.

The internet, Post argues, is a phenomenon defined entirely by scale. There are hundreds of thousands of interconnected networks – this particular one grew to the size to cover the entire globe. “The internet is not big because it’s the internet, it’s the internet because it’s big.”

It’s not obvious that the internet should be able to scale this smoothly – “If the internet was a bridge carrying ten thousand cars a day, it’s not obvious that it can carry a billion, or ten billion cars a day.” But the internet has shown an amazing ability to add capacity and processing power to keep growing. But we might be facing some real hard limits, like a limit to IP address space.

As we bring the internet to a large scale, other problems come into play. Copyright law breaks down at this level, Post argues. “Songsmith videos – if I were Larry Lessig, one would magically appear behind me and start playing – videos made using Microsoft’s songsmith system and old video footage,” present incredibly complex legal problems. “I’m a pretty good copyright lawyer and it would take me ten or twenty hours of legal advice to figure out how to clear one of these videos… all for a video that might have taken 15 minutes to create.”

Post tells us that we need to scale our institutions to a global scale so we can govern this new space, and that we don’t know how to do it. When we talk about these things, we tend to talk about institutions like the UN, and that’s not an especially promising model to govern the space.

Before opening the floor to a flood of questions, Post assures us that the omens surrounding his book are good ones. “The day I sent of the manuscript, a male moose stood in the driveway of my house in southern Vermont”. It stood there for a day and a half, inspiring his neighbors to call him and see if the animal was ill or confused. A week after the book was published, Post continues, news comes from San Diego where they’re excavating the foundation for the Jefferson Law School. Excavators discover the skeleton of a mammoth. Under that, they find the skeleton of a baleen whale, and under that the skeleton of a giant ground sloth, an animal from the same genus that Jefferson described in a scientific paper. (Zittrain terms this confluence of skeletons “Jefferson’s turducken”.) “If that doesn’t convince you to buy my book, I don’t know what will.”

My Berkman colleagues and I had ample opportunity to ask Post about the implications of his work, both during his public talk and in a smaller conversation at the Berkman Center. Most of our questions focused on asking Post the practical implications of his work – what would we need to move to a constitutional moment on the internet? What might a contitutional moment look like? Is this realistic to talk about given how much regulation and censorship is already affecting the internet?

Post responds to these challenges with an answer that’s both inspiring and mildly frustrating – if we don’t ask for a constitutional moment, we won’t get it. He references “the Tinkerbell effect” – if we believe in the possibility that an internet that governs itself in a representative fashion is possible, it can become true. “You get in a trap if you think that the is is the ought”, if we never get the opportunity to rethink the ways in which we govern cyberspace. People thought the constitutional moment to create a republican government controlling tens of thousands of people in the New World was crazy – is it as crazy to think that such a movement could happen online?

Pressed for where this movement might emerge from, Post points to small communities online that are finding ways to govern themselves. He references Wikipedia, acknowledging the critique that some argue that dissenters are driven out of the Wikipedia community (see Wikitruth.info), as well as communities developing within Second Life. Given the ability of these communities to self-organize and self-regulate, Post sees the possibility that real-world courts may acknowledge decisions made within these systems and accept the governance mechanisms within these spaces as valid for settling disputes. I.e., imagine a version of Second Life that’s truly democratic and self-governing, rather than ultimately controlled by Linden Labs – it’s possible that US courts would defer to the internal governing mechanism of such a community rather than trying to settle property disputes within the US legal system.

I’m always intrigued by the willingness of lawyers to talk about constitutional moments. As an activist, I wonder whether the place to start these discussions is at a moment of revolution, not at the moment of lawmaking. What would inspire participants in online tools to demand actual self-government? It seems like there have been many rapidly quashed revolutions: Facebook changes terms of service by fiat, users threaten to revolt, Facebook changes TOS again by fiat and revolt quiets. Will these movements ever erupt into full-fledged rebellion? Will Facebook users rise up and build their own republican online community?

Post suggests that they will, once the issues become more serious. Once we’re living more of our life online, once the consequences for behavior in virtual worlds are more serious, once we’re making more money in these spaces, we might see such a revolution emerge. “If institutions aren’t worth taking seriously, won’t be taken seriously.” I’m far from convinced, but that’s why I bought the book and hope to spend some quality time this week with Jefferson and his moose.