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Designing Deliberative Democracy in Cyberspace: the Role of the Cyber-Lawyer Beth Simone Noveck New York Law School, [email protected]

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Designing Deliberative Democracy in Cyberspace: the Role of the Cyber-Lawyer Beth Simone Noveck New York Law School, Beth.Noveck@Nyls.Edu digitalcommons.nyls.edu Faculty Scholarship Articles & Chapters 2003 Designing Deliberative Democracy in Cyberspace: The Role of the Cyber-lawyer Beth Simone Noveck New York Law School, [email protected] Follow this and additional works at: http://digitalcommons.nyls.edu/fac_articles_chapters Part of the Communications Law Commons, Internet Law Commons, and the Legal Profession Commons Recommended Citation 9 B.U. J. Sci. & Tech. L. 1 (2003) This Article is brought to you for free and open access by the Faculty Scholarship at DigitalCommons@NYLS. It has been accepted for inclusion in Articles & Chapters by an authorized administrator of DigitalCommons@NYLS. ARTICLE DESIGNING DELIBERATIVE DEMOCRACY IN CYBERSPACE: THE ROLE OF THE CYBER-LAWYER BETH SIMONE NOVECK* I. INTRODUCTION ............................................................................................... 3 A. Structuring Technology to Enhance Democracy ............................. 3 II. YURTS; YAKS & TELEPHONE BOOTHS: THINGS THAT STRUCTURE DELIBERATION ....................................................................................... 10 A. Accessible ...................................................................................... 12 B. No Censorship ............................................................................... 13 C. Autonomous ................................................................................... 13 D. Accountable and Relevant.............................................................. 14 E. Transparent .................................................................................... 14 F. Equal and Responsive .................................................................... 15 G. Pluralistic ....................................................................................... 15 H. Inclusive ......................................................................................... 15 I. Jnj'ormed ......................................................................................... 16 J. Public ............................................................................................. 17 K. Facilitated ...................................................................................... 17 III. STRUCTURING DELIBERATION OFF-LINE .................................................... 17 A. Law ................................................................................................ 18 1. Media Law ................................................................................ 21 2. Public Forum Doctrine .............................................................. 22 3. Law's Limits: Mediocre Media Law and No Central Park in Cyberspace ........................................................................... 24 4. No Policy for Democracy ........................................................ 27 B. Rules and Norms ............................................................................ 29 1. Shasta County in Cyberspace .................................................... 31 C. Architecture ................................................................................... 31 1. Building Blocks of Architecture ............................................. 33 2. Hyper-Connectivity & Hyper-Speed ....................................... 33 ' J.D., Yale Law School, 1997; Ph.D., Universitat Innsbruck, 1994; A.M., Harvard University, 1992; A.B., Harvard University, 1991. Associate Professor, New York Law School and Director, Democracy Design Workshop, New York Law School and Yale Law School; President, Bodies Electric LLC. I am indebted to Jack Balkin for illuminating the path of the cyber-lawyer and to Benjamin Barber, theoretical guide in designing technologies for democracy. Special thanks to the Yale Law School Information Society Project for its generous support of this research and to its Fellows, members of the reading group on designing democratic technologies. Thank you, too, to the most recent members of the Unchat team, Pablo Aguero, Peter Dolch, John Friedman, Joe Robbins and Sameena Shahid and to my invaluable research assistants, Shiri Bilik and Chun Li. 2 B. U. J. SCI. & TECH. L. [Vol. 9:1 3. Information Storage and Retrieval: Too Much Information .... 35 i. Personalization: The Me-Channel ....................................... 35 ii. Anonymous and Disembodied............................................. 36 4. The Internet is an Interactive Technology without Interactive Applications: Technological Paradigms for Deliberation ............................................................................. 36 5. Chat ........................................................................................... 37 i. The Origins of Chat: Internet Relay Chat .......................... 38 ii. Bulletin Boards .................................................................. 40 iii. Audio, Video, and Data Collaboration Solutions .............. 43 iv. Moderated Chat ................................................................. 44 6. E-Govemment Without E-Democracy..................................... 45 IV. WHICH DEMOCRACY FOR WHICH TECHNOLOGY: SEVEN EXPERIMENTS ........................................................................................ 4 7 A. Money and Politics-Asynchronous Public Deliberation .............. 48 B. Environmental Protection Agency-Asynchronous Public Deliberation ................................................................................... 50 C. Eriik, Estonia-Direct Democracy Online .................................... 52 D. Tampere, Finlan~Public Participation Through Simulation ..... 53 E. City Scan Project-Community Participation and Mobile Technology ..................................................................................... 54 F. Votia Empowerment AB, Sweden-Commercial Deliberative Systems ........................................................................................... 56 G. E-thepeople.org--Collaborative Filtering Tool ............................ 57 V. FROM THEORY TO PRACTICE-SOFTWARE AS DELIBERATIVE STRUCTURE ............................................................................................ 58 A. How it Works ................................................................................. 61 B. The Design Process: Translating Values into Code ...................... 66 1. Accessible ................................................................................ 66 2. No Censorship ......................................................................... 67 3. Autonomous ............................................................................. 69 4. Accountable and Transparent .................................................. 69 5. Relevant and Responsive ......................................................... 71 6. Equal: Democractic Architecture and Graphic Design ............ 73 7. Facilitated ................................................................................ 75 i. Selecting a Moderator ......................................................... 75 ii. Moderator Macros .............................................................. 76 iii. Autopass ..................................... ~ ...................................... 78 8. Pluralistic and Inclusive: Devolving Power Downward: Role-Based Permissions .......................................................... 78 9. Deliberative Communication: Speak, Shout and Whisper....... 81 10. Informed and Public: Archiving .............................................. 82 11. Informed: Whiteboard .............................................................. 83 12. Integrated Libraries .................................................................. 84 13. The Deliberative Speed-Bump: Navigation ............................. 85 14. The Virtual Speed-Bump: Quiz ............................................... 86 VI. PROCESSES FOR DELIBERATION: WHO WILL BUILD IT AND WILL THEY COME? ························································································· 87 A. Mandating Citizen Participation ................................................... 88 B. Financing Citizen Participation .................................................... 90 2003] DESIGNING DELIBERATIVE DEMOCRACY IN CYBERSPACE 3 C. Deliberation and Civil Society: Sponsoring Civic Engagement .... 90 VII. CONCLUSION ............................................................................................. 91 Architecture can shape a lived and sensed intertwining of space and time; it can change the way we live . By weaving form, space, and light, architecture can elevate the experience of daily life through the various phenomena that emerge from specific sites, programs, and architectures . Architecture, with its silent spatiality and tactile materiality, can reintroduce essential, intrinsic meanings and values to human experience. --Steven Holl 1 Majority rule, just as majority rule, is as foolish as its cnt1cs charge it with being. But it is never merely majority rule. As a practical politician, Samuel J. Tilden, said a long time ago: "The means by which a majority comes to be a majority is the important thing": antecedent debates, modification of views to meet the opinions of minorities . The essential need, in other words, is the improvement of the methods and conditions of debate, discussion and persuasion. --John Dewey2 I. INTRODUCTION A. Structuring Technology to Enhance Democracy The planning department of Tampere, Finland offers a game on its Web site. The object
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