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Using the U.S. constitution to frame the governance of cyberspace

When discussing the many policy issues related to cyberspace, there is the temptation to analyze each one de novo without a holistic context in which to place them. One way to overcome this problem is to use the U.S. Constitution as a framework for policy analysis as well as a model for establishing a governance structure for the Internet. The comparison between the taming of cyberspace, which has been described to be as ungovernable as the Wild West, and the founding of a new nation in need of a new form of government, is a useful paradigm for cyberspace policy analysis. Because the purpose of the U.S. Constitution was to establish the rule of law in a new nation, it provides a “lawful” lens through which to view cyberspace. The roots of the U.S. Constitution go back to the Magna Carta of 1215 that first established the rights of freemen. In 1776 the colony of Virginia published the Virginia Declaration of Rights, which was quickly followed by the Declaration of Independence for the thirteen colonies. After the Revolutionary War ended, the leaders came together to develop the governing documents for a new nation. The first attempt, the Articles of Confederation, did not create a strong enough central government, lacked a unified currency, and could not protect in times of war. Thus, a unique governing document, the U.S. Constitution, was adopted in 1789 to establish a balance of power between three branches of a strong federal government, to clearly delineate the powers of the states and the powers of the central government, and to include a Bill of Rights to protect the individual from excessive government power. This amazing document laid the foundation for a democratic society, established the rights and responsibilities of citizens, provided equal protection for all, and established a rule of law and reason. The feature of this form of government that proved to be most enduring was the self-correcting mechanism provided by the checks and balances of its three branches as well as the ability to make new laws and amendments. It is within this same framework that we can analyze policy related to governance and control of cyberspace, a borderless virtual place that has been characterized by some as anarchy and others as despotism. The first question that must be asked when attempting to examine governance in cyberspace is, “what is so special about cyberspace?” In his famous 1996 paper called “Cyberspace and the Law of Horses,“ Judge Frank Easterbrook, argued