Am just in the midst of writing an essay about the impact of new social software technologies on our legal approaches to on-line identity. As usual, I am critiquing the prevailing view, which problematizes on-line identity. Because we think of identity as property, cyberlaw focuses on preventing identity theft or safeguarding us against the abuses of identity behind the veil of anonymity that the Internet provides. What is rarely discussed (a recent article by Susan Crawford in the New York Law School Law Review is an exception to this) is how to treat identity "positively" as something to be fostered, protected and nurtured on-line.
I say "as usual" not because I am playing social critic again but because cyberlaw so predictably tends to focus on negative liberty rather than positive rights. In other words, how can I be free from abuse? Free from constraint? Free from censorship? This reactive stance has characterized cyberlaw for the last decade of its existence. Our agenda is full with staving off excesses of intellectual property "protection" and privacy-violating snoops. Far too little attention is paid to positive prescriptions. How can we use law and technology to enable greater innovation, creativity, productvity and freedom? Being free from the law and free from intrusive code is not the only way to deepen human happiness. Rather, the legal code as well as software code -- designed right -- can promote the same shared values.
This is a problem, not only of the cyberlibertarian ethos but it is also endemic to the left, generally. (Interestingly, cyberlibertarianism is, for most people, a left-wing stance). We are reactive. We fight against dangerous legislation. We descry attempts at censorship, governmental or corporate. We say "leave us alone." We do not ask often enough: what legislation do we need to promote the public interest? How can we strengthen a strong democratic culture and further social justice? How can we harness the affordances of the new interfaces and new media so prevalent in our lives to structure better social conditions?
This is, in part, because it is harder for a fractured left to agree on shared values except those of negative liberty. Enacting positive, progressive legislation is out of fashion. It is also hard work. We need to spend more time and energy on re-thinking a positive, progressive agenda for cyberspace by proposing legislation in the public interest, rather than reacting to all legislation as the anathema.
Yet we also ignore the possibility of creating positive, progressive code: designing for democracy. This is not a new observation. Not only have others made it, but I have been intoning the same for a decade. But I am constantly struck on every issue from copyright policy to identity to privacy how little attention we pay to the way that intelligent design can not only solve problems but improve the human condition.