In the late 1960s, artist Susanne Ussing created several pieces titled Cyberspace. Despite the title, these works were not digital. If anything, they were relentlessly analog—composed of collage, dry transfers, and lithography—reflecting an obsession with humanity, sensuality, and technology. One illustrative piece was an explosive, brightly hued collage of shaggy shapes with small silhouette figures peppered about. Another featured a silhouette standing in the corner of a room before an orange fissure, with the word “CYBERSPACE” hovering below the person’s right foot. This original cyberspace, as Ussing’s collaborator Carsten Hoff explained, was “about managing spaces. There was nothing esoteric about it. Nothing digital, either. It was just a tool. The space was concrete, physical.”
This cyberspace—the first cyberspace—was supposed to be the opposite of a dystopian hellscape, the sort later popularized by cyberpunk writers like William Gibson. (He’s also routinely, and wrongly, credited with coining the term “cyberspace.”) But the opposite happened. Today, Ussing’s inviting, warm vision has been effectively erased.
It’s almost too on the nose. A woman’s radical work was effectively buried; meanwhile, the now-inescapable cyberspace often rewards misogyny with fame, wealth, and power.
In 1996, the cofounder of the Electronic Frontier Foundation, John Perry Barlow, issued his foundational “A Declaration of the Independence of Cyberspace” from Davos. In it, Barlow proclaimed that citizens of cyberspace were “creating a world that all may enter without privilege or prejudice accorded by race, economic power, military force, or station of birth.” He specifically mentioned race and socioeconomic status. But he did not explain how his vision of an ungoverned cyberspace would affect women or queer, disabled, and other marginalized people.
Not well, as it turns out. In 2000, a man directed engineers to create a tool for searching photographs, so that people could see images of Jennifer Lopez in her gauzy green Grammys gown, baring her breasts and belly button. Four years later, three men engineers launched a search engine for video clips, so that people could watch videos of Justin Timberlake nonconsensually revealing Janet Jackson’s breast during their Super Bowl halftime show. And in 2003, a man secretly scraped his Harvard classmates’ photographs, so as to create a website for ranking the hotness of undergraduate women.
These men used women’s bodies to build their websites. But women also built their own internet. Early 1990s sex workers laid foundations for the present web by curating chat rooms, patronizing e-commerce sites, and creating online ads. Their innovations were rewarded with retaliation from lawmakers like then Senator James Exon, who proclaimed that “the information superhighway should not become a red-light district.” Yet sex workers don’t get credit for internet ingenuity. Men do. Men are dubbed the internet’s fathers. Mostly men enact laws that govern the web. Mostly men interpret those laws. And men founded that trio of websites inspired by women’s bodies: Google Images, YouTube, and Facebook.
The feminist value of accessibility provides a vocabulary for uniting people against oppressive cyberlaws.
Although men and misogyny may have contributed to today’s cyberspace, that is not the full story. Because when it comes to cyberlaw—the field dedicated to cyberspace and the laws that govern it—men are not the unifying principle. Feminism can be.
“Feminist cyberlaw,” a term that I coined in “Defragging Feminist Cyberlaw,” weaves an alternative tapestry. Often, oppressive cyberlaws can be understood as reactions to feminist values; liberatory ones are appropriations of cyberlaws to promote feminist values, like consent, accessibility, and safety. Both positively and negatively, then, feminist issues are foundational to cyberlaw. Scholars like Anita Allen, Danielle Citron, Julie Cohen, and Pamela Samuelson, among others, have known this for a long time. But feminism is often absent from iconic cyberlaw texts—remember that Barlow’s 1996 proclamation doesn’t even mention gender. Each year, law students across the country will read Barlow’s pronouncement, but they won’t all be asked to reflect on its pitfalls or reimagine an alternative vision of cyberlaw.
Some cyberlaws, and their limitations, are oppressive. Senator Exon’s retaliation against sex workers took the form of the Communications Decency Act, which was enacted in 1996 to prevent exposing children to sexual content on the web—and was struck down as unconstitutional. Years later, as Kendra Albert and Hacking//Hustling document, the law was amended by FOSTA/SESTA to keep sex workers off the internet again, putting them at serious risk of offline harm. Under past and present privacy laws, Cynthia Conti-Cook, Michela Meister, and Karen Levy have detailed how rampant digital surveillance, from data brokers to unencrypted DMs, can be weaponized against pregnant people seeking abortions or experiencing miscarriages.
Other cyberlaws can be appropriated for liberation. As I’ve written previously, copyright and the Digital Millennium Copyright Act (DMCA) can be used to remove nonconsensual intimate imagery (NCII) from the internet, a problem that disproportionately targets women and queer men. The controversial Computer Fraud and Abuse Act was enacted to tackle hacking, but it was routinely invoked to prosecute online misogyny—all unsuccessfully, which ironically paved the way for researchers to investigate online discrimination. And, as Bradley Allan Areheart and Michael Ashley Stein predicted, the Americans with Disabilities Act (ADA), which mandates widespread accessibility for disabled people, may force website owners to provide equal access to disabled people by “integrating the [i]nternet.”
These cyberlaw categories are contextual—and complicated. The lone remaining provision of the Communications Decency Act, known as Section 230, empowered websites reliant on user-generated content, thus enabling one of the most freely available resources for knowledge: Wikipedia. The site has become a leading source of facts fueling AI systems, which means those systems will reflect the biases of the encyclopedia itself. Similarly, the DMCA loses its liberatory power when law enforcement plays copyrighted music during encounters with the public to ensure that videos will be taken down for copyright infringement.
Defining the contours of feminist cyberlaw is challenging, which is why Meg Leta Jones and I assembled 19 emerging and established scholars and practitioners to reflect on how to do so in our forthcoming 2024 volume, Feminist Cyberlaw, which examines feminist cyberlaw approaches to ownership, access, and governance in cyberspace. Our hope is that our colleagues’ work will help shape this field. But you can too.
Readers might wonder, what practical and pedagogical commitments can I make to put feminist cyberlaw into action? You can begin by exploring feminist values as an analytical framework. Feminist values provide a fresh framework for drawing connections between seemingly disparate areas of cyberlaw. Take the CDA 230 and the ADA. One is about providing safe harbors (or not) for interactive service providers; the other is about promoting accessibility for disabled people. But really, both govern who gets to access the internet. The feminist value of accessibility—which I introduce alongside consent and safety in “Defragging Feminist Cyberlaw”—provides a vocabulary for uniting sex workers and disabled people against oppressive cyberlaws. (And many people are both.) Viewing cyberlaw through the lens of feminist values clarifies how its (mis)alignments with those values contributes to oppressive or liberatory policies. New scholarship will introduce new values into the conversation, providing deeper insights into how feminism influences cyberlaw.
Already, scholars are spinning new threads that illustrate how feminism has always been woven throughout cyberspace and the laws that govern it. But the field will only grow if more scholars add their own stories to the tapestry—and I hope yours will be next.
This piece is adapted from “Defragging Feminist Cyberlaw,” Berkeley Technology Law Journal (forthcoming) and Feminist Cyberlaw (University of California Press, forthcoming) 
