The Stop Online Piracy Act (SOPA) and its defeat call attention to a delicious irony in public discourse on Internet governance. Even those who don’t want the Internet to be an exception from traditional forms of regulation and law are forced to admit that something new and exceptional must be done to bring it under control, such as massive departures from traditional concepts of territorially bounded sovereignty through the use of in rem jurisdiction. Reinforcing the irony, these attempts by the anti-exceptionalists to subordinate the Internet to established institutions immediately locks them into conflict with a highly mobilized, highly transnational community of Internet users and service providers who vow to resist those controls. The resistance comes precisely because the mobilized community believes that the controls cannot be applied to the Internet without threatening to fundamentally alter its status as an open, innovative and – dare we say it – exceptional space. In other words, we are all Internet exceptionalists now.
You know that the anti-exceptionalists have raised the white flag of surrender when they are forced to whine that the thousands of web publishers who went dark are “abusing their power” – thus admitting that a critical mass of Western society’s eyes are turned toward the Internet and that the people who occupy and publish and interact in that globalized space constitute enough of a cohesive community to collectively turn against those who threaten them.
It doesn’t matter whether one is on the pro-control or anti-control side of the spectrum; governing the internet forces a choice upon one: either go for new and unprecedented forms of technical intervention and transnational political cooperation, or go for some kind of ratification and institutionalization of the Internet’s special status as a zone for the free flow of information and a diminished role for territorial government and traditional informational property rights.
Mind you, one needn’t be a cyber-utopian to be an Internet exceptionalist. In other words, you don’t have to believe that the Internet will by its very nature make politics fair and democratic and that the good guys will always win. SOPA or some equivalent could rise again, in some other form. Some key actors could be bought off with some concessions in the new legislation. The mobilized community’s resolve could weaken over time, as it grows accustomed to things. We need to be heedful of Benkler’s warning that as the networked environment resists control, there will be strong pressures to suck ever more of it into the law enforcement vortex. But surely, after 15 years of these battles (starting, roughly, with the CDA mobilization of 1996) we can dismiss these jaded admonitions that Internet regulation is just business as usual. If the Internet stops being an exception, we will have no one but ourselves to blame.