For bravura bravado and bombast, it’s still hard to beat A Declaration of the Independence of Cyberspace, the immediately-viral rant written on February 8, 1996 by John Perry Barlow (1947-2018), who co-founded the Electronic Frontier Foundation but who is probably best remembered as a lyricist for the Grateful Dead.
Disenchanted with the tenor of the proceedings at the World Economic Forum in Davos (Switzerland), Barlow, who (according to his memoir) had years earlier been accepted to Harvard Law School but had instead pursued a variety of other interests, proclaimed:
“Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather. . . .
“We are forming our own Social Contract. This governance will arise according to the conditions of our world, not yours. Our world is different. . . .
“Your legal concepts of property, expression, identity, movement, and context do not apply to us. They are all based on matter, and there is no matter here. . . .
“The only law that all our constituent cultures recognize is the Golden Rule. . . .
“We will create a civilization of the Mind in Cyberspace. May it be more humane and fair than the world your governments have made before.”
In 2006, in a lengthy reflection published in California (U.C. Berkeley alumni) magazine, Barlow recalled that at Davos:
“The self-congratulatory arrogance of my hosts irritated me almost as much as Congress’ and Clinton’s [in creating ‘the ironically named Telecommunications Reform Act, which contained within it the Communications Decency Act’]. Of course, I failed at that time to have a proper appreciation of my own. . . .
“Still, you’ll have a hard time proving to me that I was naïve in suggesting that the Internet created a kind of human immunity to human coercion that we had not seen before. That not all of the results have been positive doesn’t alter my essential point in this regard. . . .
“If I erred, it was in the implication that some miracle of enlightenment might arise as a result of this. That was naïve. We are as we are.”
To sum up: “I’m not sorry I wrote it. One day, I still believe, it will seem true.”
In 2016, he insisted to an interviewer for Wired magazine that, “I do have a kind of Marxist sense of the inevitability of this shift taking place, that there will be a global commons that includes all of humanity. And that it will not be particularly subservient to governments in any way.”
If the issues invoked by Barlow’s attempted haymaker against legislators (and his effort to “make hay while the sun shines” for cyberlibertarianism) still resonate, so do those addressed by a contemporaneous and also-influential, but considerably more conservative, analysis.
In Cyberspace and the Law of the Horse, 1996 U. Chi. Legal F. 207 (downloadable here), Judge Frank H. Easterbrook of the United States Court of Appeals for the Seventh Circuit criticized the concept of a hypothetical course on “The Law of the Horse” (and by extension, on “The Law of Cyberspace,” the very topic of the conference at which he delivered the paper).
First, that type of course would encourage “multidisciplinary dilettantism.” Similarly, “Beliefs lawyers hold about computers, and predictions that they make about new technology, are highly likely to be false. This should make us hesitate to prescribe legal adaptations for cyberspace.”
Second, “the best way to learn the law applicable to specialized endeavors is to study general rules.” A course collecting all legal decisions that happened to involve a horse “is doomed to be shallow and to miss unifying principles.”
Easterbrook, whose own decisions have been recommended as examples of clear and elegant writing, thus urged, “Develop a sound law of intellectual property, then apply it to computer networks.”
“Error in legislation is common, and never more so than when the technology is galloping forward. Let us not struggle to match an imperfect legal system to an evolving world that we understand poorly. Let us instead do what is essential to permit the participants in the evolving world to make their own decisions. That means three things: make rules clear; create property rights where there are none; and facilitate the formation of bargaining institutions. Then let the world of cyberspace evolve as it will, and enjoy the benefits.”
In an ever-evolving era of generative AI, cryptocurrency, and autonomous vehicles, among other advances, law (and pre-law) students should find much of interest in comparing and contrasting Barlow’s and Easterbrook’s brief essays; in considering the ways in which the intervening years have validated, or voided, their assertions; and in assessing their current relevance to law school curricula, to career opportunities, and to efforts to create and enforce rules governing the use of emerging technologies. (A law review might even start planning a thirtieth-anniversary retrospective on these topics.)
At least one of the authors recognized (though in a different context) the inherent imprecision and ambiguity of his work.
Nine years after his Declaration, John Perry Barlow wrote, in an afterword to The Complete Annotated Grateful Dead Lyrics (2005):
“Every time someone would ask me, over the years, what I meant by this line or that, I would say, ‘What does it mean to you?’ . . .
“The fact is, one doesn’t really know himself sometimes.”