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On 8 February 1996, John Perry Barlow, songwriter for the Grateful Dead and founder of the Electronic Freedom Foundation (EFF), dashed off an email to a hundred odd friends. The message, titled “A Declaration of the Independence of Cyberspace", argued that the internet should not be subject to the laws and regulations of the real world. He was concerned that real-world regulations that the US government was imposing on cyberspace would stunt its growth. “On behalf of the future," he begged, “I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather."

Barlow’s message tapped the zeitgeist of the time, framed as it was in the context of internet exceptionalism—a notion that would influence the way in which the internet would come to be regulated the world over. Cyberspace, he argued, was a distinct and sovereign realm that everyone could enter—where beliefs could be expressed without fear of being silenced or being required to conform. In his conceptualization, the internet represented a new frontier that would host a “civilisation of the Mind in Cyberspace".

His letter was an immediate reaction to the Telecommunications Reform Act, 1996, a legislation that had just been enacted to curb the unchecked proliferation of online spaces, with a particular focus on internet porn. Barlow believed that this attempt to regulate content online was a sign of things to come, which, unless stopped, would result in the internet as it then existed being lost forever.

“You claim," he thundered, “there are problems among us that you need to solve. You use this claim as an excuse to invade our precincts. Many of these problems don’t exist. Where there are real conflicts, where there are wrongs, we will identify them and address them by our means. We are forming our own Social Contract. This governance will arise according to the conditions of our world, not yours. Our world is different."

This belief—that the internet should be governed by its own rules—was widely held by pioneers of the internet. Most of them were hackers, fundamentally opposed to intellectual conservatism of any sort. Because of their liberal values, they prioritized free speech above all else, making it their mission to protect online communities from narrow-minded censorship of all sorts. And their first step towards breathing life into the social contract that Barlow had alluded to was to reflect these objectives in the terms of service of their websites.

This, whether by accident or design, was a masterstroke.

A website’s terms of service are a contract between users of a service and the site that provides it. In a contract, parties can agree to be bound to higher standards than what the law demands. Internet companies used this feature to specify precisely what users could and could not say on their platform, the limits of appropriate behaviour. Most importantly, they spelt out the consequences of failing to comply—which, in most instances, was ejection from the platform.

Since all the early pioneers of the internet were aligned in their thinking, most websites’ terms of service had a distinctly liberal bent. As the internet expanded globally beyond the US, websites were keen to hold their entire user base to the same standard of conduct, regardless of where their users were physically located. This is why users all over the world are today bound by largely the same terms and conditions, regardless of the socio-political undercurrents in the countries where they reside.

This was not that much of a problem when the internet was just a collection of small, diverse websites. However, access to the internet has become increasingly concentrated in the hands of a few dominant platforms that operate, for all intents and purposes, as the gatekeepers of our online interactions. Today, the decisions these entities take in enforcing their terms of service can and do have serious consequences around the world.

Over the past few years, ideological tensions have risen between liberal tech platforms and various right-wing public figures who depend on them for access to their audiences. Things came to a head when Twitter permanently suspended former US President Donald Trump, enforcing its terms of service in the most extreme way possible against the leader of the country in which it was incorporated. This action was swiftly followed by similar steps taken by almost all other tech platforms, showing that no one—not even a President of the United States—was immune from the consequences of breaching the terms of service of internet platforms.

One might argue that John Perry Barlow’s wishes have come true. Cyberspace is still largely a law unto itself. Its governance rests in the hands of the platforms that control it, and their interpretation of what is or isn’t permissible determines whether users can continue to enjoy its benefits or not. And while governments of the world have tried time and again to exert control over the internet—just as they did in 1996 and evoked Barlow’s vehement protest—they have little to show for their efforts.

John Perry Barlow argued that if it was left alone, the internet would birth a civilization of the mind “more humane and fair than the world your governments have made before." Looking around at what has become of the internet nearly a quarter of a century later, I can’t help but think he might have been a tad over-optimistic.

Rahul Matthan is a partner at Trilegal and also has a podcast by the name Ex Machina. His Twitter handle is @matthan

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