Here are some of the most thought-provoking reactions to the debate at Cato Unbound this month.
David Post at the Volokh Conspiracy writes,
Code’s a very important book, in my view (and, I think, objectively speaking, in the view of pretty much everyone involved in thinking about law and regulation on the Net). Lessig got a lot of things right in Code; most fundamentally, the idea around which much of the book is organized — that “code is law” on the global network — is a very rich one, and even a profound one, and it has been central to a great deal of very productive thinking in the field. Code got some things wrong, too — most fundamentally, when Lessig argued that it is fruitless (and perhaps even dangerous) to talk about cyberspace’s “nature.” [If I could explain my reasons for saying that he was wrong about that without having to write a whole book, I would do so; but I can’t, so you’ll just have to read the book if you’re interested].
I’ve written a fair bit about Code, in my book and elsewhere, and I won’t repeat what I’ve already said — in fact, one of the interesting things about Code and its role within the cyberlaw debates of the last decade is that the book actually helped move the conversation forward. Lessig positioned the book as an attack on, and a direct response to, the “cyber-libertarians.” The “cyber-libertarians,” in turn — myself among them — took him to task for that. But after duking it out for a while, it turns out that there wasn’t as much there as we thought: that debate isn’t where the interesting action is, in cyberspace. There’s plenty to argue about, regarding cyberspace law and policy; but arguing about the labels isn’t too useful or productive. That’s precisely the interesting thing about cyberspace; as Lessig puts it, “what drew me to cyberlaw originally was that it (originally) obscured politics. It confused intuitions. And in that confusion, people were forced to think. No crude shorthands. No summary judgment based upon a supposed set of affinities with debates almost a century old.”
Timothy B. Lee at Freedom to Tinker writes,
My ideological sympathies are with Declan and Adam, but rather than pile on to their ideological critiques, I want to focus on some of the specific technical predictions Lessig made in Code. People tend to forget that in addition to describing some key theoretical insights about the nature of Internet regulation, Lessig also made some pretty specific predictions about how cyberspace would evolve in the early years of the 21st Century. I think that enough time has elapsed that we can now take a careful look at those predictions and see how they’ve panned out.
Lessig’s key empirical claim was that as the Internet became more oriented around commerce, its architecture would be transformed in ways that undermined free speech and privacy. He thought that e-commerce would require the use of increasingly sophisticated public-key infrastructure that would allow any two parties on the net to easily and transparently exchange credentials. And this, in turn, would make anonymous browsing much harder, undermining privacy and making the Internet easier to regulate.
This didn’t happen, although for a couple of years after the publication of Code, it looked like a real possibility. At the time, Microsoft was pushing a single sign-on service called Passport that could have been the foundation of the kind of client authentication facility Lessig feared. But then passport flopped. Consumers weren’t enthusiastic about entrusting their identities to Microsoft, and businesses found that lighter-weight authentication processes were sufficient for most transactions. By 2005 companies like eBay started dropping Passport from their sites. The service has been rebranded Windows Live ID and is still limping along, but no one seriously expects it to become the kind of comprehensive identity-management system Lessig feared.
Lessig concedes that he was “wrong about the particulars of those technologies,” but he points to the emergence of a new generation of surveillance technologies—IP geolocation, deep packet inspection, and cookies—as evidence that his broader thesis was correct. I could quibble about whether any of these are really new technologies. Lessig discusses cookies in Code, and the other two are straightforward extensions of technologies that existed a decade ago. But the more fundamental problem is that these examples don’t really support Lessig’s original thesis. Remember that Lessig’s prediction was that changes to Internet architecture—such as the introduction of robust client authentication to web browsers—would transform the previously anarchic network into one that’s more easily regulated. But that doesn’t describe these technologies at all. Cookies, DPI, and geolocation are all technologies that work with vanilla TCP/IP, using browser technologies that were widely deployed in 1999. Technological changes made cyberspace more susceptible to regulation without any changes to the Internet’s architecture.
Indeed, it’s hard to think of any policy or architectural change that could have forestalled the rise of these technologies. The web would be extremely inconvenient if we didn’t have something like cookies. The engineering constraints on backbone routers make roughly geographical IP assignment almost unavoidable, and if IP addresses are tied to geography it’s only a matter of time before someone builds a database of the mapping. Finally, any unencrypted networking protocol is susceptible to deep packet inspection. Short of mandating that all traffic be encrypted, no conceivable regulatory intervention could have prevented the development of DPI tools.
Of course, now that these technologies exist, we can have a debate about whether to regulate their use. But Lessig was making a much stronger claim in 1999: that the Internet’s architecture (and, therefore, its susceptibility to regulation) circa 2009 would be dramatically different depending on the choices policymakers made in 1999. I think we can now say that this wasn’t right. Or, at least, the technologies he points to now aren’t good examples of that thesis.
Blaise Alleyne at Unity Behind Diversity writes,
I get so frustrated when people rationalize the locked down nature of the iPhone by saying that they can just unlock it. Unlocking an iPhone is not freedom. (1) It still rewards Apple, the maker of the chains, through the purchase; (2) it’s a disservice to the vast majority of people who don’t have the skills to unlock their devices.
I strongly believe that if geeks want to do something useful to solve the problems that Lessig and Zittrain identify, it has to involve supporting free (libre) technologies that don’t have any chains, instead of just buying into proprietary technologies and removing their own chains.
And finally, Ryan Calo is a fellow at the Center for Internet and Society at Stanford Law School, which Prof. Lessig founded. He writes via e-mail,
I agree that Code remains incredibly salient ten years in. But I question whether the Internet is really where we should continue to look for its impact.
We’re learning to manipulate more than just bits. Construction and design costs are falling, and we’re able to act more and more precisely on the human body and brain. Loitering has long been illegal. Now a municipality in England is ripping out public steps that teens gather to sit on and putting less comfortable stairs in their place. Building owners are using pink lights (which highlight acne) and high-pitch noises (which only the young can hear) to discourage the after school crowd. Vaccines are in development that render cocaine inert. Drugs cause intense nausea upon a sip of alcohol. And so forth.
If anything, the importance of the Internet is that it has expanded the realm of what seems possible. Take the context of online advertising. A central reason online ads continue to gain on traditional ads is that they allow for sophisticated targeting and analytics. You can know where a user has surfed and what she is looking at, so you can advertise to her based on relatively good intelligence about her preferences. And you can follow her clicks and views to determine the most effective sales strategy.
Not coincidentally, it now occurs to outdoor advertising companies to listen to what is playing on your car radio and change the billboards you see accordingly. Suddenly advertisers place cameras in billboards to detect demographic and other information about the people who look at ads. Today’s malls can follow you around using your cell phone signal as you shop to rearrange their store displays for maximum impact. For more on this, including sources, see my blog post of March 30, 2009.
We face scarier social challenges at the precise moment when we begin to overcome major technological obstacles of all kinds. This is Jonathan Zittrain’s great insight. The result is that there is everywhere both a will and a way to regulate by design over law. This presents opportunities to finally win worthwhile wars against destructive conduct, and it presents great dangers around decreased ability to resist and challenge. After all, there is no separation of powers, no civil disobedience, no defense of necessity where the underlying conduct is rendered impossible.
If anything, though, we should be much more worried about offline fallout. A clever hacker can get around digital rights management. Can she rip up stairs or counter a vaccine?
Read: Ten Years of Code: Best of the Blogs
* * *
“Ideologue”: Adam is right. That was a poorly defined word. What I meant it to mean was one who lets a conclusion cloud understanding. I don’t mean that I (or anyone) makes judgments from a value neutral space. Of course we have values. But I do mean that even if we disagree about some things, we don’t disagree about many important things. And I don’t think we should be disagreeing about a core point of Code – that there is an axis of alliance between government and (again the poorly chosen term) “commerce” to evolve the architecture of the Net in ways that benefit both: commerce, by making the net more tractable; government, by making the net more regulable.
This point suggests another that we apparently don’t disagree about: that there can be “code failures” (as Adam nicely puts it) that threaten important values that we all should (another value) hold dear. But that point leads Adam to claim there’s a disagreement between us when I don’t think he’s got the evidence to support the claim. Adam writes:
The cyber-libertarian believes that “code failures” are ultimately better addressed by voluntary, spontaneous, bottom-up, marketplace responses than by coerced, top-down, governmental solutions. Moreover, the decisive advantage of the market-driven approach to correcting code failure comes down to the rapidity and nimbleness of those response(s).
If I say I completely agree with this statement, does this make me a cyber-libertarian? Because of course I believe this. But do I have to believe it is true always? Or is a strong presumption enough? Because again, tutored by reporting such as Declan’s, I am happy to presume code problems work themselves out in the main, more often than government actually solves anything.
But part of the argument in Code was to suggest times when that might not be true. Times when “no law” is the inducement to “bad code,” and where a “good law” would stanch evolution to bad code. Think about spam. As JZ pointed out, Declan agrees the spammers should be sued. That’s law no doubt, but not very good law. Lawsuits are expensive and slow; spammers are typically fast and cheap. Federal district court judges are not about to shoulder the extraordinary burden imposed upon the net by this scourge. And the consequence of that failure is, in my view, the deployment of lots of terrible code: blackhole boycotts, stupid filters, etc. That code has the consequence of blocking lots of legitimate mail simply to block lots of illegitimate mail.
Thus a Code-inspired suggestion is that a better law than the one Declan would rely upon might stanch the demand for bad code. Might.
High burden of proof required. Etc. And whether or not in this case, the point of the argument is to force a methodology that considers the interaction between law and code. Libertarians should have no problem with that, since that same analysis is relied upon by libertarians all the time to justify the (admittedly minimalist) regulations they justify in real space. For example a government to enforce domestic peace is justified because of the high costs of vigilantism, etc.
Likewise are we in agreement about the dangers of “forcible surrender of personal information” to the government. A Code-based focus would just suggest the risk of that happening is greater depending upon the particular architecture used by, for example, search engines. And a liberty-loving sort might want to take the temptation away from government by laying down privacy principles that nudge us to architectures that would not enable “forcible surrender[s].”
Likewise are we in agreement about the need to put “more constraints on our government” and about the need for “more laws like [section 230 of the Communications Decency Act].”
In the end, in my view, the only place we don’t agree is about the usefulness of “philosophical paradigms.” I paid my philosophy dues — 3 years of graduate work, adding onto work I had done as an undergrad. I find these “paradigms” useful summaries of last generation’s battles. And nothing is more boring than the reductionist move to turn everything into the battles our philosophy professors thought “critical.”
As I have described elsewhere, what drew me to cyberlaw originally was that it (originally) obscured politics. It confused intuitions. And in that confusion, people were forced to think. No crude shorthands. No summary judgment based upon a supposed set of affinities with debates almost a century old.
Take, for example, “cyber-collectivist.” Much of the work I’ve done since Code – though Code itself launched it in the chapter on IP — has been to insist that one form of government regulation better defend itself: copyright. My aim has been to force the regulators to show why their restriction on speech is justified, why their regulation of creativity and innovation makes sense. And my sense was initially that most of these overregulations are the simple product of special interest rent-seeking, exploiting their power in a political system too eager to regulate to favor those with the largest campaign contributions. In this battle, I’ve been allied with some of the libertarian favorites — Richard Epstein joined us in our battle against the Sonny Bono Act, as did Eugene Volokh and David Post. And I can’t believe David and I have any real disagreements about the insanity that is now called “copyright law.”
My point is that to call that work, and those views, “collectivist” is to evacuate the word of all meaning. It is to assume a binary when no binary exists. John Stuart Mill was not a “norm-collectivist” when he railed against social norms as interfering with liberty. Neither am I am collectivist when I try to show a similar dynamic with Code.
We would have a real disagreement if Adam thought code was irrelevant to liberty. He doesn’t. And we’d have a real disagreement if Adam thought it could never make sense for a government (even a libertarian government) to talk account of the restrictions on liberty effected by code and intervene in some way to remedy them. He hasn’t said that.
Instead, as I read Adam’s argument, he thinks I would intervene more than he would. Maybe. I don’t have any basis for saying one way or another. But that’s a disagreement to have about a particular case, not a disagreement of principle.
My claim is that we should not disagree about the core of Code. We should not disagree about this not because this view is without values. And not because Code’s effect has been “enormous” (one more point upon which we disagree, but forgive the personal privilege in letting that disagreement slide). We should not disagree because we share these values, just as we share the view that markets are magical things, and that innovation is the promise of salvation. No doubt there will be things we don’t agree about. But the modest points of Code are obvious today, as they were obvious to many when first made.
What’s needed is the discipline to make them have effect.
Read: Code and Common Causes
* * *
In his response to my critique of Code, Prof. Lessig attacks my reasoning on two primary grounds:
(1) First, he implies that I somehow fail to comprehend Code’s central thesis that (a) “more than law regulates” and that (b) “those who controlled much of the code… had plenty of reasons to change that code in ways that better enabled their own control, and as a byproduct (whether intended or not), control by the government.”
(2) Second, he takes issue with the “cyber-collectivism” label I have used to describe the philosophical paradigm that Code and his thinking have spawned.
I will address each in turn.
Code Failures vs. Market Failures
Prof. Lessig imagines that I just haven’t quite absorbed his digital didacticism. To the contrary, I understand the central teachings Code perfectly well; it’s just that I don’t entirely accept them.
But let’s be clear about something: Cyber-libertarians are not oblivious to the problems Lessig raises regarding “bad code,” or what might even be thought of as “code failures.” In fact, when I wake up each day and scan TechMeme and my RSS reader to peruse the digital news of the day, I am always struck by the countless mini-market failures I am witnessing. I think to myself, for example: “Wow, look at the bone-headed move Facebook just made on privacy! Ugh, look at the silliness Sony is up to with rootkits! Geez, does Google really want to do that?” And so on. There seems to be one such story in the news every day.
But here’s the amazing thing: I usually wake up the next day, fire up my RSS reader again, and find a world almost literally transformed overnight. I see the power of public pressure, press scrutiny, social norms, and innovation by competitors combining to correct the “bad code” or “code failures” of the previous day. OK, so sometimes it takes longer that a day, a week, or a month. And occasionally legal sanctions must enter the picture if the companies or coders did something particularly egregious. But, more often than not, markets evolve and bad code eventually gives way to better code; short-term “market failures” give rise to a world of innovative alternatives.
Thus, at risk of repeating myself, I must underscore the key principles that separate the cyber-libertarian and cyber-collectivist schools of thinking. It comes down to this: The cyber-libertarian believes that “code failures” are ultimately better addressed by voluntary, spontaneous, bottom-up, marketplace responses than by coerced, top-down, governmental solutions. Moreover, the decisive advantage of the market-driven approach to correcting code failure comes down to the rapidity and nimbleness of those response(s).
Of course, this assumes we can agree on a definition of “bad code” and “code failures.” What concerns me about the way Prof. Lessig approaches these issues in Code and in his subsequent work is that he is far too quick to declare the debate over by labeling short-term code hiccups as sky-is-falling market failures. The end result of such myopic techno-pessimism is the inevitable call for governments to intervene and “do something” to correct supposed code failures.
The cyber-libertarian instead counsels patience. Let’s give those other forces — alternative platforms, new innovators, social norms, public pressure, etc. — a chance to work some magic. Evolution happens, if you let it.
Moreover, if you are always running around crying “market failure!” and calling in the code cops, it creates perverse marketplace incentives by discouraging efforts to innovate or “route around” bad code or code failure. We don’t want the whole world sitting around waiting for government to regulate the mousetrap to improve it or even give everyone better access to it; we should want the world to be innovating to create better mousetraps!
To reiterate a key point I already stressed in my original essay: One need not believe that the markets in code are “perfectly competitive” to accept that they are “competitive enough” — or at least, better than regulatory alternatives.
“Regulability” and What to Do about It
But what should we make of Prof. Lessig’s concern about the “regulability” of code and cyberspace? Again, this is the notion that private players could be co-opted as henchmen of the state, or that the tools they create could be co-opted for any variety of nefarious political purposes.
Here the cyber-libertarian will occasionally find common ground with Prof. Lessig. This is a particular problem when it comes to data collection and aggregation. Generally speaking, however, a cyber-libertarian is skeptical of privacy claims based on theories of a property right in personal information. After all, as Eugene Volokh has taught us, “the right to information privacy — my right to control your communication of personally identifiable information about me — is a right to have the government stop you from speaking about me.” Moreover, the cyber-libertarian just isn’t going to get all that worked up about a private company collecting data in an attempt to sell people more goods and services. In our view, marketing isn’t mind manipulation; it’s a key part of a well-functioning capitalist system.
That being said, we are in league with Lessig when it comes to the forcible surrender of personal information or technological capabilities to government officials. When the Department of Justice comes knocking on Google’s door asking for records of our search histories to see who’s looking for online porn (or anything else), that’s a problem. The “deputization of the middleman” has long been a legitimate fear because, with the threat of liability hanging over their necks, online intermediaries could be coerced into giving the state information that leads to fines, imprisonment, censorship, or some other type of government harassment.
However, this is a problem we should handle by putting more constraints on our government(s), not by imposing more regulations on code or coders. While, as a general principle, I think it wise for companies to minimize the amount of data they collect about consumers or websurfers, we need not force that by law. And we should certainly hold companies to high standards when it comes to data security and breach. But, again, the way to deal with the “regulability” threat that Lessig and Zittrain raise is to tightly limit the powers of government to access private information through intermediaries in the first place. Most obviously, we could start by tightening up the Electronic Communications Privacy Act and other laws that limit government data access. More subtly, we must continue to defend Section 230 of the Communications Decency Act, which shields intermediaries from liability for information posted or published by users of their systems, because (among many things) such liability would make online intermediaries more susceptible to the kind of back-room coercion that concerns Lessig. If we’re going to be legislating about the Internet, we need more laws like that, not those of the “middleman deputization” model.
Labeling Philosophical Paradigms
Finally, Prof Lessig makes it clear that he doesn’t take kindly to being called a “cyber-collectivist,” even accusing me of “red-baiting” by using the term. But the collectivism of which I speak is a more generic type, not the hard-edged Marxist brand of collectivism of modern times.
Such labels and classifications play a useful role. After all, something quite profound separates our two camps and leads to endless squabbles about nearly every aspect of technology policy. Prof. Lessig is obviously far more enamored with the potential for the state and politics to play a beneficial role in shaping the digital future. Thus, even though Lessig rejects the association, Declan McCullagh was right to point to the distant influence of Plato on Code and much of Lessig’s other work. (And there’s a bit of Rousseauian influence there, too, with Lessig’s focus on bending markets and individual desires to some amorphous general will.)
In any event, if Prof. Lessig takes offense at this label and wants to call his approach something other than cyber-collectivism, by all means be my guest! Invent a new term and I’ll use it. But to me, as a student of political philosophy, I see his approach as just another variant of collectivism and I’m just not sure what else to call it. (“Cyber-Social Democrat”?) This isn’t “red-baiting;” it’s simply an exercise in philosophical classification.
But Lessig is utterly dismissive of any attempt to label his thinking, even going so far as to say that “I do stand with the core argument of Code, as any non-ideologue should.” [Emphasis added.] Here he seems to imply that he stands above it all and that it is only I who brings cursed ideology to the table. But as Cato’s Jim Harper rightly noted in response to Lessig’s assertion that he is a “non-ideologue”:
It is impossible to discuss public policy without using ideology. When I hear someone self-identify as non-ideological, I take that as a confession that they are unaware of the role that ideology plays in their thinking. If Lessig fancies himself a neutral analyst — dismissing “ideologues” as such, that’s pretty fanciful indeed.
Similarly, in responding to the assertion in my earlier essay that there is a qualitative difference between law and code, Lessig argues that “Whether and when law is more effective than code is an empirical matter — something to be studied, and considered, not dismissed by banalities spruced up with italics.”
Typography aside, I’m all for studying the impact of law vs. code as “an empirical matter,” a study that, in turn, raises the question of how we define effectiveness or success. I suspect that the professor and I would have quite a “values clash” over some rather important first principles in that regard. In other words, we’d need to talk about… ideology! And yet, Lessig persists in the belief that his arguments are “obvious” and non-ideological when they are nothing of the sort. (Cato adjunct scholar David Post made a similar point a decade ago in his brilliant review of Code.)
At issue here is nothing less than a conflict of visions similar to others throughout the history of political philosophy. It is a conflict between those who put the individual and individual rights at the heart of a system of justice and governance versus those who would place “the community,” “the public” or some other amorphous grouping(s) at the center of everything. It’s a classic libertarian vs. communitarian / collectivist debate.
Whether or not Prof. Lessig cares to acknowledge the role that Code and his thinking have played in defining one side of this debate is irrelevant. It has been enormous. And I’m not sure why he is running away from it because he is winning this battle of ideas handily. Cyber-libertarianism is under attack from all quarters: from liberals and conservatives; from the smallest institutions of government to the largest; and from practically every academic and politician on the planet who wants to reengineer the Net in one way or another.
A half century ago, Richard Weaver taught us that ideas have consequences. A half century from now, I suspect we will look back and realize just how profound the consequences of Lawrence Lessig’s ideas have been for cyberspace and our cyber-freedoms. Of course, I very much hope that I am proven wrong.
Read: Our Conflict of Cyber-Visions
* * *
Lawrence Lessig is happy that many of the bleaker predictions of Code have not come to pass. This is not to be taken, however, as a sign that freedom is easily gained or kept. It took an enormous amount of work on the part of many theorists, activists, coders, and lawyers to preserve liberty on the Internet. If Code looks wrong in hindsight, we have them to thank. Yet new threats loom large today, and Lessig in particular praises Jonathan Zittrain’s The Future of the Internet and How to Stop It as a warning to a new generation seeking to preserve liberty on the Internet. Future activists will have to continue the work of preserving freedom, because, he concludes, democratic government often isn’t up to the task.
Read: Continuing the Work of Code
* * *
Adam Thierer condemns Lessig’s Code for its pessimism and inaccurate predictions. Where Code predicted that the future would consist largely of online “walled gardens” offering total corporate control, the walled-garden model has proven a failure. Lessig has recently claimed that he is even more confident today of the predictions he made ten years ago; Thierer doubts whether any evidence supports him. Thierer views Code and the intellectual movement it spawned as essentially one that justifies government control where no such control is warranted. He laments this movement’s growing influence.
Read: Code, Pessimism, and the Illusion of “Perfect Control”
* * *
In this essay, Jonathan Zittrain argues that the differences between Lawrence Lessig and Declan McCullagh aren’t really ideological. They’re about process and approach. He personally finds much common ground with cyberlibertarians, but also believes that a great deal of effort must be put forth to create institutions that will preserve an open Internet. Neither the government nor traditional, market-based firms are necessarily well-suited to the task.
Read: How to Get What We All Want
* * *
Journalist Declan McCullagh offers a mixed assessment of Lawrence Lessig’s Code and Other Laws of Cyberspace: Although Lessig was right that preserving individual liberty on the Internet is important, and although he was right to note the crucial importance of infrastructure and basic rulemaking in preserving individual choice, Lessig was mistaken in at least two ways. Lawmakers haven’t lived up to Lessig’s high expectations, and the “threat” of commercialization has largely failed to materialize.
Read: What Larry Didn’t Get
* * *
Dan Greenberg’s response begins:
I think though that perhaps this forum’s contributors — in their search for the best route to freedom — have overlooked the obvious. I believe that for ideologues generally, the most effective path to achieving their political goals is to support the campaigns of capable, trustworthy, and principled people for public office — a strategy that might include being such a candidate. When I read the first few contributions to this forum, I shook my head in puzzlement: for many libertarians, the notion that the best way to pursue freedom is by means of conventional political action is apparently counterintuitive.
My essay says the opposite, actually: it claims that conventional political action is a very intuitive strategy, just not an effective one. This should be no surprise, since the longer a problem has existed, the less likely it is that it can be solved the obvious way, and the more likely it is that a clever counterintuitive solution is needed. Physicists are not going to unify field theory by doing the simple, obvious thing, and libertarians are not going to fix government that way either. I don’t think I’ve yet met anyone who comes at the structuralist viewpoint from the beginning: we all start out assuming that “conventional political action” can work, but eventually we give up on it.
Let me again make it clear that everything I say is related to the goal of achieving a substantially freer society. If the current United States is a 5 on the 1-10 scale, we’re looking for an 8 or higher. With this goal, it is simply ludicrous to think that a good way to achieve it is running for public office in a country that is 85% - 95% non-libertarian, and uses a system (democracy) that is clearly (in both theory and empirical evidence) antithetical to economic freedom. No one is saying that becoming a public official has no effect. But I would like to hear a plausible path via which electing a few libertarians to local or state offices results in the dissolution of the DEA, BATF, and IRS.
In principle, I totally agree with Greenberg when he writes:
If it is the case that ideas and values become enacted into law not simply because of their merits but (in some essential sense) because a public official is espousing them, why do ideologues spend so much time dissecting faulty ideas but so little time thinking about how they themselves might become situated to write their own views into law? If you have ideas you like more than (say) lunar education, it might be worthwhile to consider how you might plausibly get them written into law.
Dissecting faulty ideas is one of the acts of folk activism that I call out in my essay. We do far too much of it, when we should be directing most of our efforts to proposing and implementing alternative solutions where we can “plausibly get them written into law.” I’m with him so far, but how can any libertarian think that libertarian views can plausibly be enacted in America today? The goal is not to push slightly better laws through the flawed system, it is to actually be able to live in a libertarian country. And it is exactly the consideration of how this might plausibly be accomplished that has led me to the sad belief that the only way I can be situated to write my views into law is by creating a new country on the frontier.
Dan does touch on some of the arguments about systemic factors:
Ideologues have a slew of objections to direct participation in the political process. They argue (for instance) that ideologues cannot win, that people are politically ineducable, that it’s immoral to participate — even to vote — in a corrupt system, that there’s a systemic bias towards big government that makes ideological efforts pointless, and that it’s a lot of hard labor for relatively little return. These arguments, in some respects, have force; in other respects, they smell like an excuse for avoiding work.
First, “in some respects, have force” is far too weak an evaluation of these systemic factors, which profoundly influence the policies generated by a government. It is not intuitive to view results as emerging from the rules of a system, as opposed to the actions of individuals, but if anyone can understand this, it should be libertarians, since our familiarity with economics teaches us that incentives matter. A libertarian would be laughed at for suggesting that the cure to high prices is price fixing, yet people like Greenberg routinely suggest that the cure to bad policies is policy fixing, ignoring the degree to which bad policy is the result of human action, not human design.
Second, and more importantly, I am dumbfounded that anyone who reads my essay can say “in other respects, they smell like an excuse for avoiding work.” Here I am claiming that the solution to these systemic incentive problems is to go build cities on the ocean, and Greenberg says I’m making excuses to avoid work? Are you kidding me? It’s the other way around: kissing babies is a helluva lot less work than pioneering a new frontier!
Greenberg seems to have succumbed to the romance of democracy when he writes:
It’s a reality in politics, especially legislative politics, that although ideologues will never win all the offices they run for, they can win enough of them to get a place at the table. They can win enough to have their views taken seriously in the political process and to be treated reasonably by the media.
What I want is to live in a society which operates in accordance with my morals, not one which takes them “seriously,” treats them “reasonably,” and then rejects them, again and again. Ron Paul has a place at the table, and while it makes for some great YouTube videos, it has no effect on Washington. Without influence, mere participation in the democratic process is worthless.
And finally:
But as the man said when he was asked how he liked being old: consider the alternative! If you really think that we need political change, what serious alternative is there to direct political action?
Greenberg’s choice of metaphor is quite telling. He assumes that the alternative to being old is being dead — apparently Dan has not yet met Aubrey de Grey! In the new view, the alternative to being old is to create rejuvenation technology. And the alternative to direct political action within existing political systems is to create a technology to enable experimentation with new political systems. [Editors' note: Aubrey de Grey also contributed to Cato Unbound in December 2007.]
The old view resigns itself to the status quo; the new one tries to create alternatives. The old view operates through individuals; the new one, through technology and systems of incentives. The old view may have helped slightly stem the tide of statism that swept the United States in the 20th century, but it is clearly inadequate to enact any substantial change. For those of who want true liberty in our lifetimes, is it any wonder that are turning to a new view where direct political action within existing systems is no longer considered to be a credible option?
Read: The Old View
* * *
I had hoped my essay on the limits of politics would provoke reactions, and I was not disappointed. But the most intense response has been aimed not at cyberspace, seasteading, or libertarian politics, but at a commonplace statistical observation about voting patterns that is often called the gender gap.
It would be absurd to suggest that women’s votes will be taken away or that this would solve the political problems that vex us. While I don’t think any class of people should be disenfranchised, I have little hope that voting will make things better.
Voting is not under siege in America, but many other rights are. In America, people are imprisoned for using even very mild drugs, tortured by our own government, and forced to bail out reckless financial companies.
I believe that politics is way too intense. That’s why I’m a libertarian. Politics gets people angry, destroys relationships, and polarizes peoples’ vision: the world is us versus them; good people versus the other. Politics is about interfering with other people’s lives without their consent. That’s probably why, in the past, libertarians have made little progress in the political sphere. Thus, I advocate focusing energy elsewhere, onto peaceful projects that some consider utopian.
Read: Your Suffrage Isn’t in Danger. Your Other Rights Are.
* * *
Cato Unbound Managing Editor Jason Kuznicki writes in Cato @ Liberty:
What’s needed, Friedman claims, is not more study or advocacy, but a change in the deeper institutional structures that give rise to government policies…
Is this just a young person’s impatience? Or has Friedman found a serious weakness in libertarian activism? One reply I might make is that Cato scholars have researched quite a few topics that Friedman would probably find worthwhile…Consider the many Cato scholars who have heralded the rise of tax competition…Or consider Bryan Caplan’s The Myth of the Rational Voter…
It is certainly true that academic research is useful for understanding what types of structural reform may help realistically transform society, and it definitely informs my strategy. In other words, even if one buys into my worldview, the optimal quantity of academic research is not zero. It is even true that the optimal rate of academic research is not zero — new phenomena such as tax competition may be worthy of study, even if you share my goals (liberty in our lifetimes), and my skepticism of folk activist methods.
However, as we anti-government types know quite well, defending something as having some virtue does not mean it is better than alternatives, or even of net positive value. Academic research is not useless, but I believe that we are over-invested in talk relative to action and in politics relative to technology, for all the reasons stated in my piece. Describing the benefits of liberty may sell some — but showing it will convince more. Telling people not to have babies may slightly reduce the birth rate — but inventing the pill reduces it drastically.
Ilya Somin has a good piece at the Volokh Conspiracy. Among other things, he says:
Ironically, Patri Friedman’s grandfather Milton Friedman was one of the best examples of the impact of libertarian advocacy on policy. Among other things, Milton Friedman’s efforts, combined with those of other libertarians, played a key role in ending the draft, one of the greatest infringements on individual liberty in modern American history. Friedman also helped influence many governments around the world in the direction of adopting relatively more free market economic policies.
I think I would like to believe that this is true, and certainly there is a strong case to be made that individual advocacy can have some occasional, limited, and temporary positive effects on liberty. I went too far in characterizing these efforts as useless. The fact remains that they will not get us “liberty in our lifetimes,” that structural reforms (such as the fall of communism and spread of democracy) have had far more positive impact on liberty than minor policy changes, and that technology is a much more realistic path to changing the world than rhetoric.
Furthermore, I question to what degree advocates such as my grandfather could influence policy without successful examples. The United States used to be such an example — but those days are long past, and the current administration seems hell bent on moving even further from them, all the while calling it “progress.” Thus even if one believes in fighting the war of ideas, examples make for powerful ammunition. Surely some of our advocacy budget (perhaps a substantial portion) should go to creating such examples. As Michael Strong writes in his new book Be The Solution (reviewed here by Max Borders), we should “Criticize By Creating.”
Both Ilya and Cato Fellow Doug Bandow mention that existing countries may not allow libertarian seasteads to exist. Bandow suggests that political advocacy in existing societies is thus an essential part of even a separatist movement like seasteading. Again, let us not confuse positive value with an efficient action. It is certainly true that a culture of liberty is conducive to tolerance of libertarian startup societies. It does not follow that the budget of a libertarian startup state (or libertarianism in general) should be spent on advertising the joys of libertarianism rather than developing a good product. A good product is, after all, the best form of advertising.
States may not tolerate freedom on the high seas — but if they don’t, then nowhere is safe. In other words, for a given cultural climate, the most freedom will always be had at the frontier, furthest from current power structures. We know that the current political, cultural, and intellectual climate means we are very far from a libertarian state inside the borders of every existing nation. The open question is: in that same environment, how much freedom can be had on the frontier? It is more, but is it substantially more — enough to be worth the extra cost and other disadvantages?
This is where the question of state intervention comes in. It is certainly a major threat, but I do not think that the case that existing governments will not allow any significant freedom on the frontier is overwhelming. Yes, the United States will intervene anywhere in the world — but only for a tiny list of offenses. WMD research, harboring terrorists, anonymous banking, and exporting drugs all come to mind as things that will provoke state intervention. But that is a very short list, and it covers most of the territory! In other words, one only needs to ban a very few things in order to be on a friendly basis with the United States.
Whether this will be sufficient to maintain autonomy remains to be seen, and even if seasteading succeeds wildly I expect complex compromises to be necessary. But I think we have a fighting chance at a huge increase in freedom. And a far better chance on the frontier than anywhere else. It’s there or nothing — let’s give freedom one last try.
Read: Seasteading and Its Critics
* * *
Editors’ Note: Cato Unbound occasionally runs contributions from individuals who have particular expertise or a particularly insightful view of the issue at hand. This month we received the following essay by Dan Greenberg. Greenberg is a lawyer, an Arkansas state legislator, and an adjunct professor of law at the Bowen Law School of the University of Arkansas at Little Rock. Greenberg is also the former communications director of the Cato Institute.
How best to achieve political goals? I can understand the attraction of the Free State Project, Seasteading, cyberlibertarianism, and even Heinleinesque societies in space. I think though that perhaps this forum’s contributors — in their search for the best route to freedom — have overlooked the obvious. I believe that for ideologues generally, the most effective path to achieving their political goals is to support the campaigns of capable, trustworthy, and principled people for public office — a strategy that might include being such a candidate. When I read the first few contributions to this forum, I shook my head in puzzlement: for many libertarians, the notion that the best way to pursue freedom is by means of conventional political action is apparently counterintuitive.
What is an ideologue? Over two decades ago, shortly after I graduated from college, I was struck by the brevity and force of a letter to the editor that appeared in the New York Times, captioned “This Country Needs More Ideologues,” — so much so that I carried it around in my wallet for years. In only a few sentences, the author (Wirt A. Yerger Jr.) makes a persuasive case that the nation needs public officials who embody time-tested, pro-freedom principles: he calls them “ideologues.” Let us accept something like his usage: by “ideologues,” I do not mean people who are out of touch with reality, but rather people whose political goals are informed by moral values and principles which they can represent and defend.
In my state, there are 135 legislators and 1 governor. Those 136 people have an immense amount of influence over the legal structure that governs our state, perhaps more so than anyone else. The reason that the views of public officials routinely appear in the media is not because they are wise or profound. Rather, it is because (within limits) those people have the power to change the rules if they so desire. In my state, if you are interested in changing policy for the better, you might try to be one of those 136 people.
Let me give you an admittedly unlikely example. Suppose there is a state legislator who thinks that exposure to the rays of the moon will increase the capacity of students to learn. The everyday person has little or no power to get such views written into a state’s educational program, but if things break right for the legislator, he can get a pilot education program passed into law and funded that will involve the education of students by moonlight.
Ideologues frequently get frustrated with such outcomes, which they correctly see as capricious. But they do not learn what I think is an obvious lesson. If it is the case that ideas and values become enacted into law not simply because of their merits but (in some essential sense) because a public official is espousing them, why do ideologues spend so much time dissecting faulty ideas but so little time thinking about how they themselves might become situated to write their own views into law? If you have ideas you like more than (say) lunar education, it might be worthwhile to consider how you might plausibly get them written into law.
Perhaps the greatest film about modern American electoral politics is a little-known and underappreciated documentary called Taking on the Kennedys, a documentary so filled with telling details of the way political campaigns really work that it rewards repeated viewings. One such detail is a sign posted in the protagonist-candidate’s office, a sign within his view as he makes one tedious fund raising phone call after another. The sign reads: “Most people are not ideological.” Ideologues tend to forget this simple truth — and, too often, relate to others on an overly ideological basis — which is one reason why they are often such bad political candidates.
More generally, a fundamental fact of the political process is that there is a significant difference in the skill set of a good candidate and that of a good public official. Ideologues typically have an excellent grasp of many of the requirements of being a good public official: being thoughtful, well-educated, well-read, and open-minded, able to make decisions on the basis of principle and reality, having the ability to articulate and explain the connections between theory and practice, and so forth. However, ideologues are typically poorer at campaigning, which requires the ability to appreciate the symbolic and emotional nature of communications with everyday people, to hear and connect with putative constituents directly and via news media, to recruit and work with volunteers and build coalitions, to campaign generally (often a repetitive, undramatic chore), and to figure out how to raise money for the expenses attendant to campaigns. My experience with ideologues who desire political office is that they are often unwilling to make the hard physical and psychological slog that is required to get there. By its nature, the system necessarily selects public officials out of the pool of “good candidates”; by and large, it does not reward eccentricity or even individual authenticity. This may have something to do with one of Ed Crane’s observations, which I hope he will forgive me for paraphrasing: that he typically finds Congressmen “creepy.”
I am generally sympathetic to critiques of “folk activism” — I would simply echo Doherty’s point by noting that the main reason that it takes place is that it’s a lot more fun to spend two hours writing a blog post or having a political argument than to spend two hours knocking on scores of doors asking people you’ve never met before to vote for a sound candidate. But the latter, while often boring and occasionally grueling, is probably more politically effective. And it is only the people who are willing to pay the price of pursuing political office who will be able to exercise political power. (I do not mean here to diminish the importance of academics and other professional policy analysts, whose work has been of tremendous importance to good government.)
Ideologues have a slew of objections to direct participation in the political process. They argue (for instance) that ideologues cannot win, that people are politically ineducable, that it’s immoral to participate — even to vote — in a corrupt system, that there’s a systemic bias towards big government that makes ideological efforts pointless, and that it’s a lot of hard labor for relatively little return. These arguments, in some respects, have force; in other respects, they smell like an excuse for avoiding work.
I don’t have the space to answer all of these concerns, but (very briefly) I will try. It’s a reality in politics, especially legislative politics, that although ideologues will never win all the offices they run for, they can win enough of them to get a place at the table. They can win enough to have their views taken seriously in the political process and to be treated reasonably by the media. They can win enough to have significant freedom of action in resisting the political power of entrenched interest groups. They can win enough to block bad programs and establish good ones; given the right cultural climate, they can make significant ideological advancements. Importantly, sometimes they win in part because of public knowledge of their political views, and sometimes because of public ignorance of them. In short, they can win enough to be more than gadflies, although as an occasional gadfly myself I think people can underestimate the importance of this role. Some ideologues apparently think that anything less than complete victory is complete defeat; I think they are mistaken.
In short, it seems to me that the obvious implication of all this is that any principled person who is dissatisfied with the current political order should seriously consider running for public office — provided that he or she has the time and the other resources required to do so. (See my discussion of the requirements for good candidates and good public officials above.) The prevalence of term limits regularly minimizes some barriers associated with incumbency. Furthermore, it seems to me that any ideological movement that stigmatizes various types of conventional political action, down to and including voting, is harming itself in an almost masochistic way.
Admittedly, the argument that conventional political avenues lead to a lot of hard work for little return is a serious one. (Ideologues who believe the only acceptable result of their political labors is a government under the complete control of like-minded people will find this argument utterly persuasive.) In fact, lowered expectations here are essential. But as the man said when he was asked how he liked being old: consider the alternative! If you really think that we need political change, what serious alternative is there to direct political action?
Seasteading? Really?
Read: A Plea for Politics
* * *
Peter Thiel’s and Jason Sorens’s most recent contributions to this debate contain both much truth and much well-justified emotion. Both of them remind me of something depressing but worth thinking about when contemplating how we might get to a satisfyingly libertarian future: that maybe it just isn’t possible at all, given any reasonable future we can imagine from where we stand.
Thiel is right that the prospects for libertarian politics, especially when it comes to economic freedom, a government that doesn’t spend as much as it can lay its hands on plus 10 times more, and any widespread understanding of the coordinative possibilities of uncoerced human choice in the overall economy seem grim right now. He offers three possible paths to a solution. Each one’s actual potential to create a libertarian world seems no more obviously plausible than the very old fashioned libertarian movement “folk activism” path — that of convincing people of the merits of a libertarian social order, mind to mind, often one mind at a time.
And it isn’t just the technological problems (Can we really make space colonies and seasteads serve as desirable places to live and work as long as land is still an option? To what extent can virtual freedom of mind and communication spread into the movements of our bodies in meatspace?). Other obstacles make these sort of “change the game, don’t just change minds” solutions thin reeds on which to weigh a libertarian future.
The great advantage of seasteading and space colonies is they can in their nature be homes for a limited self-selected few, and thus a quick path to creating a libertarian world without having to change this world into one. That’s a definite advantage. But it runs into another very apt point made by Jason Sorens — small libertarian spaces aren’t apt to be very safe in a larger unlibertarian world. As he baldly states it, “a free society in the current climate will annoy or even enrage powerful people.”
Thus, maybe not only a fully libertarian world, but any possibility for a safe, livable space for tiny libertarian subworlds on the sea or in space (outer or cyber) really does rely on what Leonard Read thought from the beginning of the modern American libertarian project: convincing enough people of the benefits of a world that allows or even embraces “anything that’s peaceful.” It could be that this is necessary for any sort of hope for an active, living libertarian practice. Perhaps we must convince enough people such that we no longer live in a world in which powerful agencies of monopoly violence will be enemies of any enclave of freedom. We need to convince enough people that they should not allow, or do not want to participate in, the snuffing out of libertarian practice, so that whatever brilliant social hack a libertarian can make real will also survive.
Which leads us back to Patri and Peter’s legitimate doubts about how well that project of folk intellectual activism can ever really work. I can’t claim with authority that it will. But I’m not sure what else can. As excited as I am about seasteading or space colonies, I’m not sure I’ve heard any ideas that I think are very likely to be better. (I’ll be very happy to discover I’m wrong.) Good thing that it’s the rare libertarian activist who has to know or believe in his ex post success in major-league world-changing to feel like it’s worthwhile to advocate and educate for liberty’s benefits.
Read: Teaching and Doing Depend on Each Other
* * *
I’d like to clarify my thesis a bit and acknowledge the important (but limited) role of existing libertarian organizations. Brian Doherty wrote:
“Folk activism” — talking, debating, and proselytizing, as [Patri] defines it — does indeed have the potential to see libertarians “changing system-wide incentives.” Admittedly, it’s a long, slow, so far largely failed slog — if changes in every libertarian direction already are what we need.
The implication of a “long, slow…slog” are a line that is slowly and steadily trending upwards. If someone has such a line for the libertarian movement, I would love to see it, but I do not believe it is an accurate assessment of our history (though if anyone can prove me wrong, it is Brian, our chronicler extraordinaire). The one graph I have seen of LP membership looks nothing a slow, steady increase. Neither do sales of Atlas Shrugged, even if they are up lately.
In addition, whatever progress we do make has a ceiling, as I mentioned in my essay based on David Nolan’s work, or you can find in the research of Cato’s own David Boaz. That ceiling is in the range of 9 to 16 percent of intuitive libertarians — plenty to take over New Hampshire or start a new country, but not to be a major power at the national level. And the hope that libertarian morality will prove contagious beyond those intuitive libertarians is, I believe, a mirage. Research by Jonathan Haidt suggests that people’s morality is an instinctual judgment, with reasons made up after the fact (one might call it “folk morality”). Yes, some minds can be swayed, but this does not augur well for a mass conversion.
There is a big difference between a long war and an endless one, and for these and all the reasons I argued initially, I believe that folk activism is the latter. I won’t go so far as to say we’re slogging slowly in circles, but there is an insurmountable cliff between us and our destination. So it’s a question of possibility, not just Patri’s patience.
With that said, there is a critical difference between an inchoate individualist mass and an organized, self-identified group. If our 10 percent of the population had no political party, no think tanks, no magazines, and no reputable academics, not only would we not have political impact, but it would be incredibly difficult for a new project to gain any traction. The Seasteading Institute has benefited enormously from the groundwork laid by libertarian organizations in the spirit of folk activism, and I should have mentioned this in my original essay. I may be skeptical that Cato will ever convert DC to a belief in markets, but I certainly appreciate having a sophisticated forum like Cato Unbound to be able to discuss and refine my ideas.
The Ron Paul campaign also exemplifies this distinction between impact and community. As a method for electoral success, it had zero chance to as many decimal places as you care to name. Yet I’ve met numerous libertarians who before Ron Paul had never heard of the philosophy or movement, and are now a valuable part of our community. Systemic change is required — but it takes an organized group to make a systemic change.
And so the libertarian activism which Brian so aptly characterized as “consumption expense” has positive externalities for all of us. I’d much rather people read and wrote and ranted about libertarianism than sat around and watched TV. My concern is that people are deceiving themselves about the impact of this type of consumption (I know I did), which leads to misallocated efforts and long-run burnout when no change occurs. (There is nothing unique about libertarianism in this area — ever since I was a teenager I’ve viewed petitions and boycotts as ways to make people feel good and feel like they’ve done something, without the effort of actually working towards real change.)
Brian also wrote:
I don’t know what will prove the best and most effective strategy for liberty. I think a lot of actions that are less than “best” or “most effective” are still worth doing, and that the inclinations and beliefs of each specific libertarian will be the best guide toward what will make them most effective at what they are doing — even if that particular thing isn’t the most effective thing!
This agnosticism about strategies towards liberty stems from one part of the libertarian philosophy: respect for the judgment and tastes of the individual. Mine stems from another: the belief that resources are limited and some options are more efficient than others. There are many paths towards liberty, but some go in circles, and others (like holing up with guns) lead off a cliff. We need an organized group to reach the land of liberty, but we also need a map and a realistic plan to deal with the enormous geographic obstacles. Folk activism has given us the group, and economic theory the map — and we’ve learned that we cannot simply walk to our destination. We need the technologies Peter calls for to let us reach the heights to which we all aspire.
The groundwork has been laid, but it alone can’t get us off the ground. Let’s invent technologies that can.
Read: The Importance and Limitations of Groundwork
* * *
