Foucault in Cyberspace: Surveillance, Sovereignty, and Hardwired Censors

Abstract

The libertarian culture that dominates the Internet at present posits that state intervention into private action is only necessary to prevent the infliction of harm. John Perry Barlow's description of the First Amendment as a local ordinance offers the sobering reminder that it is not merely "bad" state traditions, interventions, and regulations that are enfeebled by cyberspace. One of Michel Foucault's most interesting contributions was to challenge a particular notion of power, power-as-sovereignty. The jurisprudence of digital libertarianism could use a lot less john Austin and a lot more Michel Foucault. The chapter begins with the Communications Decency Act (CDA), and discusses the use of strict liability and digital fences in Internet copyright policy. Technologically hardwired protections have also been implemented in order to protect intellectual property as in the Digital Audio Tape standard. Finally, the chapter concludes with a sampler of hardwired regulation drawn from a number of areas of communications technology.

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