The Cyberlaw scholar

The intense man with the jutting beard in the black Converse All-Stars captivated the smattering of well-fed guys in dark suits and shiny shoes sitting in a small ballroom during a Federalist Society for Law and Public Policy Studies conference in Washington, D.C.

The man in sneakers did not offer an orchestrated presentation like the stiff speakers who preceded him.

It was more like jazz - an off-the-cuff exploration in his emphatic, stew-thick Brooklyn voice, his hands gesticulating wildly, coming together to form circles and squares, separating into fists and blades, conveying his view that, for example, as governments around the world collude on issues of cyberspace law, such "Orwellian" displays of power constitute the "biggest threat" to the future of the Internet.

And so David Post - former renowned scholar of yellow baboons in Kenya's Amboseli National Park; former tenure-track Columbia University anthropology professor; former clerk for U.S. Supreme Court Justice Ruth Bader Ginsburg; former attorney in a prestigious Washington, D.C., law firm; practicing banjo plucker, guitarist, singer, pianist and harmonica player with the band Bad Dog; practicing law professor; practicing admirer of most things Jeffersonian; and episodic opera fanatic, among many other things - wrapped up the balance of another afternoon dedicated to convincing those who will listen that cyberspace is mysterious, that cyberspace is a place and that a flourishing cyberspace may demand different rules than the rest of the world.

This is part of the public side of Post, who is also co-director of the Cyberspace Law Institute at Temple University in Philadelphia. He teaches. He speaks at symposia, conferences and panels. He testifies before Congress, and yes, even there in the lockstepping Brooks Brothers vastness of Capitol Hill, he has been spotted wearing bright red sneakers.

Post has become one of the Internet's premier intellectuals. He writes constantly, having churned out at least 60 articles about cyberspace since the mid-1990s. He has been particularly active in the development of the Internet Corporation for Assigned Names and Numbers, the organization that is assuming stewardship of the Internet's domain name system. Post has dogged some of its chief mandarins with incessant, difficult questions, undermining their logic from time to time, never giving up.

"He provokes people," says Esther Dyson, who served as ICANN's chairwoman during the first year of its existence. Dyson says she isn't always happy with Post's ICANN involvement.

The 49-year-old Post is best known for his indefatigable pursuit of the metaphor of cyberspace as a real place, pushing the trope so hard that it becomes more like an axiom than an analogy.

"One of the critical things is the persistence of cyberspace, the fact that there are groups with whom I interact that are still there even though I'm here. We're having this lunch, I'm going to go back to my office and you'll go to your office and we will rejoin something that was persistent, a discussion group or a Web site or whatever," he says over a buffet lunch at a sprawling, subterranean Indian restaurant in Washington, D.C. "We left, but it didn't disappear. It's not like hanging up the phone. This is a persistent social space that people can enter and leave at their option. And because it's a persistent social space, I think we can talk about rules and norms in a coherent way that we cannot talk about with telephones."

The metaphor colors most of Post's thinking about the Net, and it fuels his libertarian bias about power and society. In short, Post believes that people should be trusted more than governments or other instruments of power, such as ICANN.

And so Post is vigilant. When organizations start angling for control over the Internet, he is likely to wade into the fray. "Governments assert at their core a monopoly power that corporations would like to assert, but typically they cannot," Post says. "Most of the time, I'm more concerned about governmental power than corporate power."

Now, Post is working on a book, tentatively titled, Declaring Independence: Notes from Jefferson's Cyberspace, in which he will illustrate how the same debates that occurred in the 18th century about the New World - what it is, how we govern there, who owns what there - are taking place now about the Net.

For example, English authors such as Charles Dickens were furious that people could take their books to America, reproduce them and distribute them, all without remunerating the authors, he says. The same issue, of course, is alive today, with brick-and-mortar artists such as Metallica railing against Napster's free music swapping service.

At the same time, there were people such as Alexander Hamilton, who worried that without fast, firm action by a strong, central government, America would unravel. And others, such as Thomas Jefferson, celebrated the liberty that the frontier offered and argued for more decentralized power sharing through the states.

Post, who has long been interested in the founding fathers, says that the more he read about early American history, the more he saw contemporary camps of Hamiltonians and Jeffersonians battling over regulatory and jurisdictional issues surrounding the Internet. "There were a lot of people very excited about cyberspace, and a lot of people who just seemed worried all the time," he says. "There is this rush to fix everything. It's not broken. It's about as unbroken as one could imagine anything could be."

Post's libertarian perspective on the Net has had some influence on policy makers.

"He was critically important in my thinking as a trade commissioner and looking at privacy in cyberspace," says Christine Varney, a former Federal Trade Commissioner who attended law school at night with Post at Georgetown University in the 1980s and remains a friend. "He brings to bear the enormous intellect that he has on whatever issue he is engaged with. He has done more creative, out-of-the-box thinking on Internet issues than just about anyone."

In law school, Varney says, Post was irrepressible. "Law school was about conformity," she says. "He was extraordinarily successful at law school, and completely escaped that aspect of it. . . . Status meant nothing to him. He would stand up with a professor and pick the professor's argument apart. Professors would stand dumbfounded after a withering Post review."

Becky Burr, the former Clinton administration official who led the government's efforts to create ICANN, also attended law school with Post and calls him a "true radical."

"David wants to find and articulate the right solution, not necessarily the one that is achievable," says Burr, who, like Varney, remains a close friend of Post's. "That is extraordinarily hard to deal with if you are a person who respects his intellect and understands change in a more organic way."

Ginsburg, for whom Post has twice worked as a clerk, says his "bright mind" made him highly attractive to her as an employee. She gave Post, who was the primary caregiver of his two young children at the time, broad job flexibility, letting him work out of the house and appear at the office at irregular hours. Ginsburg recalls that Post has a passion for opera, and even remembers the decidedly unconventional title of a paper he submitted to her when he applied for his first clerkship: The Law of Contracts as Revealed in Wagner's 'Ring Cycle'.

Post, who lives near the National Cathedral in Washington, D.C., with his wife, economist Nancy Birdsall, and his two teenage children, says he has "zillions" of hobbies, from bird watching to astronomy to biking. His relationship with opera swings between fanatical and disinterested. During his manic opera phases, he has several times sat through productions of the entire 21-hour Ring Cycle.

Post models himself after Jefferson, he says, a man with endless enthusiasm and interests, and an eagerness to say, "I don't know."

Jefferson, who, like Post, considered himself a scientist first, always found unanswered questions "more interesting [than] what he knew," Post says. "He wanted to gather everything in one place and then say, 'What's next?' As science proceeds, it's constantly pushing out that border, and I find that very interesting. It's not a lawyer's way of looking at the world."

Post, the law professor, adds: "There is something about the law that looks for certainty and rules."