Law in the Internet Society
In Federalist 10, James Madison contended that the vastness and heterogeneity of the nascent American nation would limit the tendency of democracies to exercise political power for the narrow benefit of factious interests. He argued that with a politically engaged and sovereign people, dispersed costs would outweigh concentrated benefits, even though the expansive American continent precluded the level of personal interconnectedness as the direct democracies of the Greek city-states the Framers used as reference points. Madison may have been right that dispersed costs could outweigh concentrated benefits, but if so, he would have to wait for a few hundred years of media evolution. Unfortunately, he lived in a world where political intermediation was a necessity, but hoped that the proposed representative system would "refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations." Whether it was his "wisdom," "patriotism" or "love of justice" that allowed him to maintain such cognitive dissonance, Madison deliberately overlooked slavery, which would have served as a powerful and poignant counter-example to his argument, for the sake of political expedience in convincing the democracy-wary, land-owning anti-federalists to ratify his proposed constitution. Coordinating a participatory democracy was simply impossible on an American scale, so an admixture of representation, federalism and separation of powers was the next best thing.

Because technological conditions had made political representation a practical necessity in any sizeable democracy until recently, small minorities of American society have been very successful at achieving their own political objectives at the expense of the great majority of the population. Mancur Olson ascribed this tendency to the high costs of organization facing large, heterogeneous groups relative to the low costs of coordinating and mobilizing small, homogenous groups. Predictably, political intermediaries are manipulated and lobbied much more vigorously by small, insular (and often moneyed) factions than the generally disinterested majority. Whatever the justifications offered by defenders of public choice, American history is littered with examples of political action enabled by the concentrated benefits and dispersed costs problem, ranging from slavery to trade protectionism to speech regulation to spectrum allocation to Wall St. (and now Detroit) bailouts. Whether attributable to political parties catering to factious interests to more effectively wield political power or sheer laziness resulting from the principal-agent problem, these problems all arise from the need for political intermediaries in the first place.

While asserting that the size of an association should determine its power in a democracy, Tocqueville observed that the principal challenge lay in coordinating a dispersed population: "Means must then be found to converse every day without seeing one another, and to take steps in common without having met. Thus hardly any democratic association can do without newspapers." Tocqueville underscores the fact that a democratic population needs access to disintermediated communications in order to wield power in its own right. In the context of the network society, the ability to anarchically communicate, organize and educate each other at essentially zero cost may allow the dispersed costs to finally outweigh the concentrated benefits. Network communications have already revolutionized political news provision and will continue to do so insofar as news provision may be considered a functional good. While the hallmark features of mass media in the 20th century were barriers to entry caused by capital requirements and government licensure, under network conditions Matt Drudge broke Lewinsky scandal (Newsweek chose not to publish the story), bloggers uncovered Rathergate (CBS was apparently unaware that typewriters in 1972 didn't have superscript), and twitter repeatedly outpaces the mainstream media (most recently by capturing real time updates on the terrorist attacks in Mumbai). Indeed, recent polls have shown that people trust Internet news outlets more than broadcast media precisely for this functional superiority.

In Here Comes Everybody, Clay Shirky has compared the Internet to the printing press with the twist that the tools incorporated therein allow the power of aggregation to amplify the quality, scope and depth of speech, including political discourse and organization. Though some have denied the influence of the internet on politics as recently as 2007 (despite evidence to the contrary), Barack Obama's successful presidential campaign, which included a protracted battle over the rights to a MySpace page, has illustrated the power of the Internet as a tool for political organization. More directly, the netroots vigorously supported Ron Paul's campaign with both money and volunteers as a particularly salient representation of a community resentful of the dispersed costs imposed upon them by concentrated benefits.

Decentralizing the means of producing communication, thereby decentralizing political power, may vindicate Madison and political choice theory by enabling more democratic political activity. Reacting to this shift in power, some fear the new powers of would-be terrorists and decried the conduits of "too free" information and "too free" speech, while others have suggested that the Internet could have undermined the legitimacy of Hitler and his regime. Still others, usually the very factions seeking concentrated benefits and the old media that had sustained itself through its relationships with political intermediaries, have repeatedly tried (and failed) to limit the power of democratic speech over the internet because "sunlight is the best disinfectant." Given the various forms of entangling relationships between old media and government, it is unsurprising that an Italian court has ruled that almost all Italian blogs are illegal, that beneficiaries of intellectual property protectionism convinced one European president to veto an overwhelmingly popular piece of legislation, that China relies on censorship to attempt to maintain its monopoly of power, or that existing broadcasters would convince regulators to ease up their ownership restrictions in light of competition from the internet. Despite the efforts to maintain control over communication, the power has already begun shifting, one front has already given up. As far as history is concerned, "industry may win all the cases, but it loses the war."

-- RickSchwartz - 19 Dec 2008

I think you're missing a quote and a strikeout in the first paragraph, Rick. I've marked the two places.

-- AndreiVoinigescu - 20 Dec 2008

Thanks Andrei, I misplaced that link. It should have been at the end of the quotation. For some reason I also didn't notice your comment until now, but appreciate it nonetheless.

-- RickSchwartz - 13 Jan 2009



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r4 - 13 Jan 2009 - 05:19:20 - RickSchwartz
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