Ethics Assignment

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C O D E

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C O D E

v e r s i o n 2 . 0

L A W R E N C E L E S S I G

A Member of the Perseus Books Group New York

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Published by Basic Books A Member of the Perseus Books Group

Printed in the United States of America. For information, address Basic Books, 387 ParkAvenue South,NewYork,NY 10016–8810.

BookspublishedbyBasicBooks are available at special discounts forbulkpurchases in theUnitedStatesbycorporations, institutions,andotherorganizations.Formore information, please contact the Special Markets Department at the Perseus Books Group, 11 Cambridge Center, Cambridge MA 02142, or call (617) 252-5298, (800) 255-1514 or e-mail special.markets@perseusbooks.com.

CIP catalog record for this book is available from the Library of Congress.

ISBN-10: 0–465–03914–6 ISBN-13: 978–0–465–03914–2

06 07 08 09 / 10 9 8 7 6 5 4 3 2 1

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Code version 1.0

FOR CHARLIE NESSON, WHOSE EVERY IDEA

SEEMS CRAZY FOR ABOUT A YEAR.

Code version 2.0

TO WIKIPEDIA,

THE ONE SURPRISE THAT TEACHES MORE THAN EVERYTHING HERE.

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C O N T E N T S

Preface to the Second Edition ix Preface to the First Edition xiii

Chapter 1.Code Is Law 1 Chapter 2.Four Puzzles from Cyberspace 9

PART I: “REGULABILITY”

Chapter 3. Is-Ism: Is theWay It Is theWay It Must Be? 31 Chapter 4.Architectures of Control 38 Chapter 5.Regulating Code 61

PART II: REGULATION BY CODE

Chapter 6.Cyberspaces 83 Chapter 7.What Things Regulate 120 Chapter 8.The Limits in Open Code 138

PART III: LATENT AMBIGUITIES

Chapter 9.Translation 157 Chapter 10. Intellectual Property 169 Chapter 11.Privacy 200 Chapter 12.Free Speech 233 Chapter 13. Interlude 276

PART IV: COMPETING SOVEREIGNS

Chapter 14.Sovereignty 281 Chapter 15.CompetitionAmong Sovereigns 294

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PART V: RESPONSES

Chapter 16.The ProblemsWe Face 313 Chapter 17.Responses 325 Chapter 18.What Declan Doesn’t Get 335

Appendix 340 Notes 347 Index 399

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P R E F A C E T O T H E S E C O N D E D I T I O N

This is a translation of an old book—indeed, in Internet time, it is a transla- tion of an ancient text.The first edition of this book was published in 1999. Itwaswritten inaverydifferent context,and, inmanyways, itwaswritten in opposition to thatcontext.As Idescribe in the first chapter, thedominant idea among those who raved about cyberspace then was that cyberspace was beyond the reach of real-space regulation. Governments couldn’t touch life online. And hence, life online would be different, and separate, from the dynamic of life offline. Code v1 was an argument against that then common view.

In the years since, that common view has faded. The confidence of the Internet exceptionalists has waned.The idea—and even the desire—that the Internetwouldremainunregulated isgone.Andthus, inaccepting the invita- tion to update this book, I faced a difficult choice: whether to write a new book,or toupdate theold, tomake it relevantandreadable ina radicallydif- ferent time.

I’ve done the latter. The basic structure of the first edition remains, and theargumentadvanced is the same.But I’ve changed the framingof particu- lar examples, and, I hope, the clarity of the writing. I’ve also extended the argument in someparts,andaddedbrief links to laterwork inorder tobetter integrate the argument of the original book.

One thing Ihavenotdone,however, is extend theargumentof thisbook in theplaces thatothershaveworked.Norhave I succumbed to the (insanely powerful) temptation to rewrite the book as a response to critics, both sym- pathetic and not. I have included direction in the notes for those wanting to follow the arguments others have made in response. But, even more than when it was first published, this book is just a small part of a much bigger debate. Thus, you shouldn’t read this to the exclusion of extraordinary later work.Twobooks inparticularalreadypublishednicelycomplement theargu- ment made here—Goldsmith and Wu’s Who Controls the Net? (2006), and Benkler’s The Wealth of Networks (2006)—anda thirdbyZittrain,expected in 2007, significantly extends the same argument.

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Ihavealsonot tried toenumerate themistakes, real andalleged,made in the first edition. Some I’ve simply corrected, and some I’ve kept, because, however mistaken others take them to be, I continue to believe that they are not mistakes. The most important of the second type is my view that the infrastructure of the Net will become increasingly controlled and regulable through digital identity technologies. Friends have called this “mistake” a “whopper.” It is not. I’m not sure what time horizon I had in mind in 1999, and I concede that some of the predictions made there have not come to pass—yet. But I am more confident today than I was then, and thus I have chosen to stick with this “fundamental mistake.” Perhaps this is simply to hedge my bets: If I’m right, then I have the reward of understanding. If I’m wrong, then we’ll have an Internet closer to the values of its original design.

The genesis of the revisions found here was a wiki. Basic Books allowed me topost theoriginal editionof thebook inawikihostedby Jotspot, anda team of “chapter captains” helped facilitate a conversation about the text. There were some edits to the text itself, and many more valuable comments andcriticisms.1 I then took that text asof theendof 2005andaddedmyown edits to produce this book. While I wouldn’t go as far as the musician Jeff Tweedy (“Half of it’s you, half is me”), an important part of this is not my work. In recognition of that, I’ve committed the royalties from this book to the nonprofit Creative Commons.

I am grateful to JotSpot (<jot.com>) for donating the wiki and hosting services that were used to edit Code v1. That wiki was managed by an extraordinaryStanfordundergraduate, JakeWachman,whogave thisproject more time than he had. Each chapter of the book, while living on the wiki, hada“chapter captain.”I amgrateful toeachof them—AnnBartow,Richard Belew,SethFinkelstein, JoelFlynn,MiaGarlick,MattGoodell,PaulGowder, Peter Harter,Brian Honermann,Brad Johnson, Jay Kesan, John Logie,Tom Maddox,EllenRigsby,andJonStewart—for thework theyvolunteered todo, and to themanyvolunteerswhospent their time trying tomake Code v1bet- ter. I am especially grateful toAndy Oram for his extensive contributions to the wiki.

In addition to these volunteers, Stanford helped me gather an army of law students tohelp complete the research that Code v2 required.Thiswork beganwith four—DavidRyanBrumberg, Jyh-AnLee,BretLogue,andAdam Pugh—who spent a summer collecting all the work that built upon or criti- cized Code v1. I relied upon that research in part to decide how to modify Code v1. During the fall semester,2005,a seminarof Stanford students added their own critical take, as well as classes at Cardozo Law School. And then during the year, two other students, John Eden and Avi Lev Robinson-

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Mosher, spent many hours helping me complete the research necessary to finish a reasonable draft of Code v2.

Nostudent,however,contributedasmuchto the final versionof Code v2 as Christina Gagnier. In the final months of this project, she took command of the research, completing a gaggle of unresolved questions, putting the resultsof this18-monthprocess ina formthatcouldbepublished,andsuper- visingacheckof all citations toverify their completenessandaccuracy.With- out her work, this book would not have been completed.

I amalsograteful to friends andcolleagueswhohavehelpedmeseehow thisworkneededtochange—especiallyEdFelten,David Johnson,JorgeLima, Alan Rothman, and Tim Wu. Jason Ralls designed the graphics for Code v2. And finally, I am indebted beyond words to Elaine Adolfo,whose talent and patienceare farbeyondanything I’veeverknown,andwithoutwhomIcould not have done this,or much else in the past few years.

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P R E F A C E T O T H E F I R S T E D I T I O N

In thespringof 1996,atanannualconferenceorganizedunder the title“Com- puters, Freedom,andPrivacy”(CFP), two science-fictionwriterswere invited to tell storiesaboutcyberspace’s future.VernorVingespokeabout“ubiquitous lawenforcement”madepossibleby“fine-graineddistributedsystems,”inwhich the technology that will enable our future way of life also feeds data to, and accepts commands from,thegovernment.Thearchitecture thatwouldenable this was already being built—it was the Internet—and technologists were already describing ways in which it could be extended.As this network which could allow such control became woven into every part of social life, it would be justamatterof time,Vingesaid,before thegovernmentclaimedcontrolover vitalpartsof this system.Asthesystemmatured,eachnewgenerationof system codewould increase thepowerof government.Ourdigital selves—andincreas- ingly, ourphysical selves—would live inaworldof perfect regulation,and the architecture of this distributed computing—what we today call the Internet and its successors—wouldmake that regulatoryperfectionpossible.

Tom Maddox followed Vinge and told a similar story, though with a slightly different cast. The government’s power would not come just from chips,he argued. Instead, it would be reinforced by an alliance between gov- ernment and commerce.Commerce, like government, fares better in a well- regulatedworld.Commercewould,whetherdirectlyor indirectly,help supply resources to build a well-regulated world. Cyberspace would thus change to take on characteristics favorable to these two powerful forces of social order. Accountability would emerge from the fledgling,wild Internet.

Code and commerce. When these two authors spoke, the future they described was not yet

present. Cyberspace was increasingly everywhere, but it was very hard for those in the audience to imagine it tamed to serve the ends of government. And at that time, commerce was certainly interested in cyberspace, though credit cardcompanieswere stillwarningcustomers to stay far away fromthe Net.The Net was an exploding social space of something.But it was hard to see it as an exploding space of social control.

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I didn’t see either speech. I first listened to them through my computer, threeyearsafter theyweregiven.Theirwordshadbeenrecorded; theynowsit archived on a server at MIT.1 It takes a second to tune in and launch the recording of their speeches. The very act of listening to these lectures given years before—served on a reliable and indexed platform that no doubt recorded the fact that I had listened, across high-speed, commercial Internet lines that feedmyhouseboth the InternetandABCNews—confirmedsome- thing of their account.One can hear in the audience’s reaction a recognition that these authors were talking fiction—they were science-fiction writers, after all.But the fiction they spoke terrified those who listened.

Ten years later, these tales are no longer fiction. It is no longer hard to understand how the Net could become a more perfectly regulated space or howthe forcesbehindcommerce couldplay a role in facilitating that regula- tion.

The ongoing battle over peer-to-peer filesharing is an easy example of this dynamic.As an astonishing quantity of music files (among others) was made available for free (and against the law of copyright) through P2P applications, the recording industry has fought back. Its strategy has included vigorous prosecution of those downloading music illegally, extraordinary efforts to secure new legislation to add new protections for their copyrightedcontent,andahostof newtechnicalmeasuresdesigned to change a feature of the original architecture of the network—namely that theNet copies contentblind to the rulesof copyright that standbehind that content. The battle is thus joined, and the outcome will have implications for more than just music distribution. But the form of the battle is clear: commerce and government working to change the infrastructure to make better control possible.

Vinge and Maddox were first-generation theorists of cyberspace. They could tell their stories aboutperfect controlbecause they lived inaworld that couldn’t be controlled. They could connect with their audience because it wanted to resist the future theydescribed.Envisioning this impossibleworld was sport.

Now the impossible is increasingly real. Much of the control in Vinge’s and Maddox’s stories that struck many of their listeners as Orwellian now seemstomanyquite reasonable. It ispossible to imagine the systemof perfect regulation that Vinge described, and some even like what they see. It is inevitable that an increasingly large part of the Internet will be fed by com- merce. Most don’t see anything wrong with that either. The“terrifying”has now become normal, and only the historians (or authors of old books like this) will notice the difference.

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This book continues Vinge’s and Maddox’s stories. I share their view of theNet’s future;muchof thisbook isabout theexpandingarchitectureof reg- ulationthat the Internetwillbecome.But Idon’t share thecomplacencyof the self-congratulatorycheers echoing in thebackgroundof that1996recording. It may well have been obvious in 1996 who “the enemy” was. But it is not obvious now.

Theargumentof this book is thatour future isneitherVinge’snorMad- dox’s accounts standing alone. Our future is the two woven together. If we were only in for the dystopia described byVinge,we would have an obvious andpowerful response:Orwell gaveus the tools,andStalingaveus theresolve toresist the totalitarianstate.After9/11,wemaywell seea spyingand invasive Net.But even that will have limits.Totalitarian control byWashington is not our future. 1984 is solidly in our past.

Likewise, if we were only in for the future that Maddox described,many of our citizenswouldcall thatutopia,not science fiction.Aworldwhere“the market”runs freeandthe“evil”of government isdefeatedwouldbe, for them, a world of perfect freedom.

Butwhenyou tie the futuresdescribedbyVingeandMaddox together, it is a different picture altogether:A future of control in large part exercised by technologiesof commerce,backedby the ruleof law(orat leastwhat’s left of the rule of law).

Thechallenge forourgeneration is to reconcile these two forces.Howdo weprotect libertywhen thearchitecturesof control aremanagedasmuchby thegovernment asby theprivate sector?Howdoweassureprivacywhen the ether perpetually spies? How do we guarantee free thought when the push is to propertize every idea? How do we guarantee self-determination when the architecturesof control areperpetuallydeterminedelsewhere?How, inother words,dowebuildaworldof liberty in the faceof thedangers thatVingeand Maddox together describe?

Theanswer isnot in theknee-jerkantigovernment rhetoricof a libertar- ian past: Governments are necessary to protect liberty, even if they are also able to destroy it. But neither does the answer lie in a return to Roosevelt’s New Deal. Statism has failed. Liberty is not to be found in some new D.C. alphabet soup (WPA,FCC,FDA . . . ) of bureaucracy.

A second generation takes the ideals of the first and works them out against a different background. It knows the old debates; it has mapped the dead-end arguments of the preceding thirty years.The objective of a second generation is to ask questions that avoid dead-ends and move beyond them.

There is greatwork frombothgenerations.EstherDysonandJohnPerry Barlow, and Todd Lapin still inspire, and still move one (Dyson is editor at

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large at CNET Networks; Barlow now spends time at Harvard). And in the second generation, the work of Andrew Shapiro, David Shenk, and Steven Johnson is becoming well known and is compelling.

Myaimis this secondgeneration.As fitsmyprofession(I’ma lawyer),my contribution is more long-winded,more obscure,more technical, and more obtuse than thebestof eithergeneration.Butas fitsmyprofession,I’ll offer it anyway. In the debates that rage right now,what I have to say will not please anyone very much.And as I peck these last words before e-mailing the man- uscriptoff to thepublisher, I canalreadyhear thereactions:“Can’t youtell the difference between the power of the sheriff and the power of Walt Disney?” “Doyoureally thinkweneedagovernmentagencyregulatingsoftwarecode?” And from the other side: “How can you argue for an architecture of cyber- space (free software) that disables government’s ability to do good?”

But I am also a teacher. If my writing produces angry reactions, then it might also effect a more balanced reflection. These are hard times to get it right,but the easy answers to yesterday’s debate won’t get it right.

I have learned an extraordinary amount from the teachers and critics who have helped me write this book. Hal Abelson, Bruce Ackerman, James Boyle, Jack Goldsmith, and Richard Posner gave patient and excellent advice on earlier drafts. I am grateful for their patience and extremely fortunate to havehadtheir advice.LarryValeandSarahWhitingguidedmyreading in the field of architecture, though no doubt I was not as patient a student as I shouldhavebeen.SonyaMeadhelpedmeput intopictureswhat itwould take a lawyer ten thousand words to say.

Anarmyof studentsdidmostof thebattle onearlierdrafts of this book. Carolyn Bane,Rachel Barber,Enoch Chang,Ben Edelman,Timothy Ehrlich, Dawn Farber,Melanie Glickson,Bethany Glover,Nerlyn Gonzalez, Shannon Johnson, Karen King, Alex Macgillivray, Marcus Maher, David Melaugh, Teresa Ou, Laura Pirri, and Wendy Seltzer provided extensive, if respectful, criticism.Andmyassistants,LeeHopkinsandCatherineCho,werecrucial in keeping this army in line (and at bay).

Three students inparticularhave influencedmyargument, thoughnone are fairly called“students.”Harold Reeves takes the lead in Chapter 10. Tim Wuforcedmetorethinkmuchof Part I.AndAndrewShapiroshowedmethe hopefulness in a future that I have described in very dark terms.

I amespecially indebted toCatherineMargueriteManley,whoseextraor- dinary talent,bothas awriter anda researcher,made itpossible to finish this work longbefore itotherwisecouldhavebeen finished.Thanksalso toTawen Chang and James Stahir for their careful review of the notes and work to keep them honest.

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This is a not a field where one learns by living in libraries. I have learned everything I know from the conversations I have had, or watched, with an extraordinary community of academics and activists, who have been strug- gling over the last five years both to understand what cyberspace is and to make it better.This community includes the scholars andwriters Idiscuss in the text, especially the lawyers Yochai Benkler, James Boyle, Mark Lemley, David Post, and Pam Samuelson. I’ve also benefited greatly from conversa- tionswithnonlawyers,especiallyHalAbelson,JohnPerryBarlow,ToddLapin, Joseph Reagle,Paul Resnick, and DannyWeitzner.But perhaps more impor- tantly, I’vebenefited fromdiscussionswith theactivists, inparticular theCen- ter for Democracy and Technology, the Electronic Frontier Foundation, and theAmericanCivilLibertiesUnion.Theyhavemade the issues real,and they havedonemuch todefendat least someof thevalues that I think important.

Thisbookwouldnothavebeenwritten,however,but fora storyby Julian Dibbell,a conferenceorganizedbyHenry J.Perritt,andmanyargumentswith David Johnson. I am grateful to all three for what they have taught.

I began this project as a fellow at Harvard’s Program on Ethics and the Professions. I am grateful to Dennis Thompson for his skeptical encourage- ment thatyear.TheBerkmanCenter for Internet andSocietyatHarvardLaw Schoolhasmademuchof myresearchpossible. I amgrateful inparticular to LillianandMylesBerkmanfor that support,andespecially to thecenter’s co- director and my sometime coteacher, Jonathan Zittrain, for his support and, more important, friendship. I’vededicated thisbook to theother co-director of theBerkmanCenter,CharlieNesson,whohasgivenmethe spaceandsup- port to do this work and a certain inspiration to push it differently.

Butmore significant thananyof that supporthasbeen thepatience,and love, of the person to whom I’ve dedicated my life, Bettina Neuefeind. Her love will seem crazy, and wonderful, for much more than a year.

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C O D E

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O N E

c o d e i s l a w

ALMOST TWO DECADES AGO, IN THE SPRING OF 1989, COMMUNISM IN EUROPE died—collapsed, likea tent, itsmainpost removed.Theendwasnotbrought by war or revolution. The end was exhaustion. A new political regime was born in its place across Central and Eastern Europe, the beginnings of a new political society.

For constitutionalists (like me), this was a heady time. I had graduated from law school in 1989, and in 1991 I began teaching at the University of Chicago.At that time,Chicagohadacenterdevoted to thestudyof theemerg- ing democracies in Central and Eastern Europe. I was a part of that center. Over thenext fiveyears I spentmorehoursonairplanes,andmoremornings drinking bad coffee, than I care to remember.

Eastern and Central Europe were filled with Americans telling former Communistshowtheyshouldgovern.Theadvicewasendless.Andsilly.Some of thesevisitors literally sold translatedconstitutions to theemergingconsti- tutional republics; the rest had innumerable half-baked ideas about how the newnations shouldbegoverned.TheseAmericanscamefromanationwhere constitutionalism seemed to work,yet they had no clue why.

The Center’s mission, however, was not to advise. We knew too little to guide.Our aim was to watch and gather data about the transitions and how they progressed.We wanted to understand the change,not direct it.

What we saw was striking, if understandable. Those first moments after communism’scollapsewere filledwithantigovernmentalpassion—asurgeof anger directed against the state and against state regulation. Leave us alone, the people seemed to say. Let the market and nongovernmental organiza- tions—a new society—take government’s place. After generations of com- munism, this reaction was completely understandable.Government was the

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oppressor. What compromise could there be with the instrument of your repression?

Acertainkindof libertarianismseemedtomany to supportmuch in this reaction.If themarketwere toreign,andthegovernmentwerekeptoutof the way, freedom and prosperity would inevitably grow.Things would take care of themselves.There was no need, and could be no place, for extensive regu- lation by the state.

But thingsdidn’t takecareof themselves.Marketsdidn’t flourish.Govern- ments were crippled, and crippled governments are no elixir of freedom. Powerdidn’tdisappear—it shifted fromthestate tomafiosi, themselvesoften created by the state.The need for traditional state functions—police, courts, schools,healthcare—didn’tgoaway,andprivate interestsdidn’t emerge to fill thatneed.Instead, theneedswere simplyunmet.Securityevaporated.Amod- ern if ploddinganarchyreplaced theblandcommunismof theprevious three generations: neon lights flashed advertisements for Nike; pensioners were swindledoutof their life savingsby fraudulent stockdeals;bankersweremur- dered in broad daylight on Moscow streets.One system of control had been replaced by another.Neither was whatWestern libertarians would call“free- dom.”

{TXB2} About a decade ago, in the mid-1990s, just about the time when this post- communist euphoria was beginning to wane, there emerged in the West another“new society,”to many just as exciting as the new societies promised in post-communist Europe.This was the Internet,or as I’ll define a bit later, “cyberspace.”First in universities and centers of research, and then through- out society in general, cyberspace became a new target for libertarian utopi- anism. Here freedom from the state would reign. If not in Moscow or Tblisi, then in cyberspace would we find the ideal libertarian society.

The catalyst for this change was likewise unplanned. Born in a research project in theDefenseDepartment,1 cyberspace tooarose fromtheunplanned displacement of a certain architecture of control.The tolled, single-purpose network of telephones was displaced by the untolled and multipurpose net- workof packet-switcheddata.Andthus theoldone-to-manyarchitecturesof publishing (television, radio, newspapers, books) were complemented by a world inwhichanyonecouldbecomeapublisher.Peoplecouldcommunicate and associate in ways that they had never done before. The space seemed to promiseakindof society that real spacewouldneverallow—freedomwithout anarchy,controlwithoutgovernment,consensuswithoutpower. In thewords of amanifesto thatdefined this ideal:“Wereject:kings,presidentsandvoting. We believe in: rough consensus and running code.”2

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As in post-Communist Europe, these first thoughts about freedom in cyberspace tied freedomto thedisappearanceof the state.As JohnParryBar- low, former lyricist for the Grateful Dead and co-founder of the Electronic FrontierFoundation,declared inhis“Declarationof Independence forCyber- space,”

Governmentsof the IndustrialWorld,youwearygiantsof fleshandsteel, I come

from Cyberspace, the new home of Mind.On behalf of the future, I ask you of

the past to leave us alone.You are not welcome among us.You have no sover-

eignty where we gather.

Buthere thebondbetween freedomandtheabsenceof the statewas said to be even stronger than in post-Communist Europe. The claim for cyber- space was not just that government would not regulate cyberspace—it was that government could not regulate cyberspace. Cyberspace was, by nature, unavoidably free. Governments could threaten, but behavior could not be controlled; lawscouldbepassed,but theywouldhavenoreal effect.Therewas no choice about what kind of government to install—none could reign. Cyberspacewouldbea societyof averydifferent sort.Therewouldbedefini- tion and direction, but built from the bottom-up. The society of this space would be a fully self-ordering entity, cleansed of governors and free from political hacks.

I taught in Central Europe during the summers of the early 1990s; I wit- nessedthroughmystudents thetransformationinattitudesaboutcommunism that Idescribedabove.AndsoI feltabitofdéjàvuwhen,in thespringof1995, while teachingthe lawof cyberspace,I sawinmystudents theseverysamepost- communist thoughtsabout freedomandgovernment.EvenatYale—notknown for libertarian passions—the students seemed drunk with what James Boyle would latercall the“libertariangotcha”:3 nogovernmentcouldsurvivewithout the Internet’s riches, yet no government could control the life that went on there.Real-spacegovernmentswouldbecomeaspatheticas the lastCommunist regimes: Itwas thewitheringof thestate thatMarxhadpromised, joltedoutof existenceby trillionsof gigabytes flashingacross theetherof cyberspace.

But what was never made clear in the midst of this celebration was why. Why was cyberspace incapable of regulation? What made it so? The word itself suggestsnot freedombutcontrol. Its etymology reachesbeyondanovel byWilliamGibson(Neuromancer, published in1984) to theworldof“cyber- netics,” the study of control at a distance through devices.4 So it was doubly puzzling to see this celebration of “perfect freedom” under a banner that aspires (to anyone who knows the origin, at least) to perfect control.

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As I said, I am a constitutionalist. I teach and write about constitutional law.Ibelieve that these first thoughtsaboutgovernmentandcyberspacewere just as misguided as the first thoughts about government after communism. Liberty in cyberspace will not come from the absence of the state. Liberty there,as anywhere,will come fromastateof a certainkind.Webuildaworld where freedomcan flourishnotby removing fromsociety any self-conscious control, but by setting it in a place where a particular kind of self-conscious control survives.Webuild libertyasour foundersdid,by setting societyupon a certain constitution.

Butby“constitution”Idon’tmeana legal text.Unlikemycountrymen in EasternEurope in theearly1990s, I amnot trying to sell adocument thatour framers wrote in 1787.Rather, as the British understand when they speak of their“constitution,”Imeananarchitecture—not just a legal textbutawayof life—that structures andconstrains social and legalpower, to theendof pro- tecting fundamental values. (Onestudentasked,“constitution”in the senseof “justone toolamongmany,onesimple flashlight thatkeepsus fromfumbling in thedark,or, alternatively . . .more like a lighthouse thatweconstantly call upon?”Imeanconstitutionas in lighthouse—aguide thathelps anchor fun- damental values.)

Constitutions in this sensearebuilt, theyarenot found.Foundationsget laid, they don’t magically appear. Just as the founders of our nation learned fromtheanarchy that followed the revolution(remember:our first constitu- tion, the Articles of Confederation, was a miserable failure of do-nothing- ness), so too are we beginning to understand about cyberspace that this building,or laying, isnot theworkof an invisiblehand.There isnoreason to believe that the foundation for liberty in cyberspace will simply emerge. Indeed, thepassion for that anarchy—as inAmericaby the late1780s,andas in the formerEasternblocby the late1990s—has faded.Thus,asour framers learned, and as the Russians saw,we have every reason to believe that cyber- space, left to itself,willnot fulfill thepromiseof freedom.Left to itself, cyber- space will become a perfect tool of control.

Control. Not necessarily control by government, and not necessarily control to some evil, fascist end. But the argument of this book is that the invisible hand of cyberspace is building an architecture that is quite the opposite of its architecture at its birth.This invisible hand,pushed by gov- ernment and by commerce, is constructing an architecture that will perfect control and make highly efficient regulation possible. The struggle in that worldwill notbegovernment’s. Itwill be toassure that essential liberties are preserved in this environment of perfect control. As Siva Vaidhyanathan puts it,

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Whileonce it seemedobviousandeasy todeclare the riseof a”networksociety”

inwhich individualswouldrealign themselves,empower themselves,andunder-

mine traditionalmethodsof social andcultural control, it seemsclear thatnet-

worked digital communication need not serve such liberating ends.5

This book is about the change from a cyberspace of anarchy to a cyber- spaceof control.Whenwesee thepath that cyberspace isonnow—anevolu- tion I describe below in Part I—we see that much of the“liberty”present at cyberspace’s foundingwill be removed in its future.Valuesoriginally consid- ered fundamental will not survive. On the path we have chosen, we will remake what cyberspace was. Some of that remaking will make many of us happy.But some of that remaking, I argue,we should all regret.

Yet whether you celebrate or regret the changes that I will describe, it is critical to understand how they happen. What produced the “liberty” of cyberspace,andwhatwill change toremake that liberty?That lessonwill then suggest a second about the source of regulation in cyberspace.

That understanding is the aim of Part II. Cyberspace demands a new understanding of how regulation works. It compels us to look beyond the traditional lawyer’s scope—beyond laws,orevennorms.It requiresabroader account of “regulation,” and most importantly, the recognition of a newly salient regulator.

That regulator is theobscurity in thisbook’s title—Code.Inreal space,we recognizehowlawsregulate—throughconstitutions, statutes,andother legal codes. In cyberspace we must understand how a different“code”regulates— how the software and hardware (i.e., the “code” of cyberspace) that make cyberspace what it is also regulate cyberspace as it is. As William Mitchell puts it, this code is cyberspace’s“law.”6“Lex Informatica,”as Joel Reidenberg first put it,7 or better,“code is law.”

Lawyers and legal theorists get bothered, however, when I echo this slo- gan.Therearedifferences, they insist,betweentheregulatoryeffectsproduced by code and the regulatory effects produced by law,not the least of which is the difference in the“internal perspective”that runs with each kind of regu- lation.Weunderstandthe internalperspectiveof legal regulation—forexam- ple, that the restrictions the law might impose on a company’s freedom to pollute are a product of self-conscious regulation, reflecting values of the society imposing that regulation.Thatperspective isharder to recognizewith code. It couldbe there,but itneednot.Andnodoubt this is justoneof many important differences between“code”and“law.”

Idon’tdeny thesedifferences. Ionlyassert thatwe learnsomethinguseful from ignoring them for a bit. Justice Holmes famously focused the regulator

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on the“bad man.”8 He offered a theory of regulation that assumed that“bad man”at its core.His point was not that everyone was a“bad man”; the point instead was about how we could best construct systems of regulation.

Mypoint is the same. I suggestwe learn something if we thinkabout the “bot man”theory of regulation—one focused on the regulation of code.We will learn something important, in other words, if we imagine the target of regulationasamaximizingentity,andconsider the rangeof tools the regula- tor has to control that machine.

Codewillbeacentral tool in thisanalysis. Itwillpresent thegreatest threat to both liberal and libertarian ideals, as well as their greatest promise.We can build,orarchitect,or codecyberspace toprotectvalues thatwebelieveare fun- damental.Orwecanbuild,orarchitect,orcodecyberspace toallowthoseval- ues todisappear.There isnomiddle ground.There isnochoice thatdoesnot include some kind of building.Code is never found; it is only ever made,and onlyevermadebyus.AsMarkStefikputs it,“Differentversionsof [cyberspace] support different kinds of dreams.We choose,wisely or not.”9 Or again, code “determines which people can access which digital objects . . .How such pro- gramming regulates human interactions . . . depends on the choices made.”10

Or,moreprecisely,acodeof cyberspace,defining the freedomsandcontrolsof cyberspace, will be built. About that there can be no debate. But by whom, andwithwhat values?That is theonly choicewehave left tomake.

My argument is not for some top-down form of control. The claim is not that regulatorsmustoccupyMicrosoft.Aconstitutionenvisionsanenvi- ronment; as Justice Holmes said, it“call[s] into life a being the development of which [cannot be] foreseen.”11 Thus, to speak of a constitution is not to describe a hundred-day plan. It is instead to identify the values that a space shouldguarantee. It isnot todescribe a“government”; it is not even to select (as if a singlechoicemustbemade)betweenbottom-upor top-downcontrol. In speakingof aconstitution incyberspaceweare simplyasking:Whatvalues should be protected there? What values should be built into the space to encourage what forms of life?

The“values”at stakehereareof twosorts—substantiveandstructural. In theAmericanconstitutional tradition,weworriedabout the secondfirst.The framers of the Constitution of 1787 (enacted without a Bill of Rights) were focused on structures of government.Their aim was to ensure that a partic- ulargovernment (the federal government)didnotbecometoopowerful.And so theybuilt into theConstitution’sdesigncheckson thepowerof the federal government and limits on its reach over the states.

Opponents of that Constitution insisted that more checks were needed, that the Constitution needed to impose substantive limits on government’s

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power as well as structural limits.And thus was the Bill of Rights born.Rati- fied in 1791, the Bill of Rights promised that the federal government would not remove certain freedoms—of speech, privacy, and due process. And it guaranteed that the commitment to these substantive values would remain despite the passing fancies of normal, or ordinary, government. These val- ues—both substantive and structural—were thus entrenched through our constitutionaldesign.Theycanbechanged,butonly throughacumbersome and costly process.

We face the same questions in constituting cyberspace, but we have approached them from the opposite direction.12 Already we are struggling withsubstance:Will cyberspacepromiseprivacyoraccess?Will it enablea free cultureorapermissionculture?Will itpreservea space for free speech?These are choices of substantive value, and they are the subject of much of this book.

But structure matters as well, though we have not even begun to under- standhowto limit,or regulate,arbitrary regulatorypower.What“checksand balances”arepossible in this space?Howdoweseparatepowers?Howdowe ensure thatone regulator,oronegovernment,doesn’t become toopowerful? How do we guarantee it is powerful enough?

Theoristsof cyberspacehavebeen talkingabout thesequestions since its birth.13 But as a culture,weare justbeginning toget it.Aswe slowly come to see how different structures within cyberspace affect us—how its architec- ture, in a sense I will define below, “regulates” us—we slowly come to ask how these structures should be defined.The first generation of these archi- tectures was built by a noncommercial sector—researchers and hackers, focused upon building a network. The second generation has been built by commerce. And the third, not yet off the drawing board, could well be the product of government. Which regulator do we prefer? Which regulators should be controlled? How does society exercise that control over entities that aim to control it?

In Part III, I bring these questions back down to the ground. I consider three areas of controversy—intellectual property, privacy, and free speech— and identify thevalueswithin each that cyberspacewill change.These values are the product of the interaction between law and technology. How that interactionplaysout is oftencounter-intuitive.Myaim in thispart is tomap that interaction, so as to map a way that we might,using the tools of Part II, preserve the values that are important to us within each context.

Part IV internationalizes these questions. Cyberspace is everywhere, meaning thosewhopopulatecyberspacecomefromeverywhere.Howwill the sovereignsof everywhere livewith theclaimed“sovereignty”of cyberspace? I

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map a particular response that seems to me inevitable, and will reinforce the conclusion of Part I.

The finalpart,PartV, is thedarkest.Thecentral lessonof thisbook is that cyberspace requires choices. Some of these are, and should be, private: Whether an author wants to enforce her copyright; how a citizen wants to protecthisprivacy.But someof thesechoices involvevalues thatarecollective. I end by asking whether we—meaning Americans—are up to the challenge that these choices present.Are we able to respond rationally—meaning both (1)areweable to respondwithoutundueor irrationalpassion,and(2)dowe have institutions capable of understanding and responding to these choices?

Mystrongsense is thatwearenot,at leastnow,able to respondrationally to these challenges.Weareat a stage inourhistorywhenweurgentlyneed to make fundamental choicesaboutvalues,butweshould trustno institutionof government to make such choices. Courts cannot do it, because as a legal culture we don’t want courts choosing among contested matters of values. Congress should not do it because, as a political culture,we are deeply skep- tical (andrightly so)about theproductof this government.There ismuchto be proud of in our history and traditions.But the government we now have is a failure.Nothing important should be trusted to its control, even though everything important is.

Change is possible. I don’t doubt that revolutions remain in our future. But I fear that it is tooeasy for thegovernment,or speciallypowered interests, todislodge these revolutions,andthat toomuchwillbeat stake for it toallow real change to succeed. Our government has already criminalized the core ethic of this movement, transforming the meaning of hacker into something quite alien to its original sense.Through extremism in copyright regulation, it is criminalizing thecorecreativity that thisnetworkcouldproduce.Andthis is only the beginning.

Things could be different. They are different elsewhere. But I don’t see howtheycouldbedifferent forus justnow.Thisnodoubt is simplyaconfes- sion of the limits of my own imagination. I would be grateful to be proven wrong. Iwouldbegrateful towatch aswe relearn—as the citizensof the for- merCommunist republics are learning—howtoescape thesedisabling ideas about the possibilities for governance. But nothing in the past decade, and especiallynothing in thepast fiveyears,has convincedmethatmyskepticism about governance was misplaced. Indeed, events have only reinforced that pessimism.

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T W O

f o u r p u z z l e s f r o m c y b e r s p a c e

EVERYONE WHO IS READING THIS BOOK HAS USED THE INTERNET.SOME HAVE BEEN in “cyberspace.” The Internet is that medium through which your e-mail is delivered and web pages get published. It’s what you use to order books on Amazon or to check the times for local movies at Fandango.Google is on the Internet,as areMicrosoft“helppages.”

But“cyberspace” is something more.Though built on top of the Internet, cyberspace isaricherexperience.Cyberspace issomethingyougetpulled“into,” perhaps by the intimacy of instant message chat or the intricacy of “massively multiple online games” (“MMOGs” for short, or if the game is a role-playing game,then“MMORPGs”).Someincyberspacebelievethey’re inacommunity; some confuse their lives with their cyberspace existence. Of course, no sharp linedividescyberspacefromtheInternet.Butthere isanimportantdifferencein experiencebetweenthetwo.Thosewhosee theInternet simplyasakindofYel- low-Pages-on-steroidswon’trecognizewhatcitizensof cyberspacespeakof.For them,“cyberspace”is simplyobscure.

Some of this difference is generational. For most of us over the age of 40, there is no“cyberspace,”even if there is an Internet.Most of us don’t live a life onlinethatwouldqualifyasa life in“cyberspace.”But forourkids,cyberspace is increasingly their second life.There aremillionswhospendhundredsof hours amonth in thealternativeworldsof cyberspace—lateronwewill focusonone of theseworlds,a gamecalled“SecondLife.”1 And thuswhile youmay think to yourself, this alien space isnothing Ineedworryaboutbecause it’snowhere I’ll everbe, if youcare tounderstandanythingabout theworld thenextgeneration will inhabit,youshouldspendsometimeunderstanding“cyberspace.”

That is the aim of twoof the stories that follow.These twodescribe cyber- space. The other two describe aspects of the Internet more generally. My aim

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through these fourverydifferent stories is toorientby sometimesdisorienting. Myhope is thatyou’ll cometounderstandfour themes thatwill recur through- outthisbook.Attheendof thischapter,Icomecleanaboutthethemesandpro- videamap.Fornow, just focusonthestories.

BORDERS

It was a very ordinary dispute, this argument between Martha Jones and her neighbors.2 It was the sort of dispute that people have had since the start of neighborhoods. It didn’t begin in anger. It began with a misunderstanding. In this world, misunderstandings like this are far too common. Martha thought aboutthatasshewonderedwhethersheshouldstay; therewereotherplacesshe couldgo.Leavingwouldmeanabandoningwhat shehadbuilt,but frustrations likethiswerebeginningtogettoher.Maybe,shethought,itwastimetomoveon.

Theargumentwasaboutborders—aboutwhereher landstopped.Itseemed likea simple idea,oneyouwouldhave thought thepowers-that-bewouldhave workedoutmanyyearsbefore.Buthere theywere,herneighborDankandshe, still fighting about borders.Or rather, about something fuzzy at the borders— about somethingof Martha’s that spilledover into the landof others.Thiswas the fight,and it all related towhatMarthadid.

Martha grew flowers.Not just any flowers,but flowers with an odd sort of power. They were beautiful flowers, and their scent entranced. But, however beautiful, these flowers were also poisonous. This was Martha’s weird idea: to make flowersof extraordinarybeautywhich, if touched,wouldkill. Strangeno doubt,butnoonesaid thatMarthawasn’t strange.Shewasunusual,aswas this neighborhood.But sadly,disputes like thiswerenot.

Thestartof theargumentwaspredictableenough.Martha’sneighbor,Dank, hadadog.Dank’sdogdied.Thedogdiedbecause ithadeatenapetal fromone of Martha’s flowers.A beautiful petal, and now a dead dog.Dank had his own ideas about these flowers, and about this neighbor, and he expressed those ideas—perhapswithabit toomuchanger,orperhapswithangerappropriateto the situation.

“There is no reason to grow deadly flowers,”Dank yelled across the fence. “There’snoreasontogetsoupsetaboutafewdeaddogs,”Marthareplied.“Adog canalwaysbereplaced.Andanyway,whyhaveadogthatsufferswhendying?Get yourself apain-free-deathdog,andmypetalswill causenoharm.”

Icameintotheargumentataboutthis time.Iwaswalkingby,inthewayone walks in this space.(At first Ihadteleported togetnear,butweneedn’t compli- cate the storywith jargon.Let’s just say Iwaswalking.) I sawthe twoneighbors becoming increasingly angry with each other. I had heard about the disputed

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flowers—abouthowtheirpetalscarriedpoison.It seemedtomeasimpleprob- lemtosolve,butIguess it’s simpleonly if youunderstandhowproblemslikethis arecreated.

DankandMarthawereangrybecause ina sense theywere stuck.Bothhad built a life in the neighborhood; they had invested many hours there.But both werecomingtounderstand its limits.This is acommoncondition:Weallbuild our lives inplaceswith limits.Wearealldisappointedat times.Whatwasdiffer- entaboutDankandMartha?

Onedifferencewasthenatureof thespace,orcontext,wheretheirargument washappening.Thiswasnot“real space”butvirtual space.Itwaspartof what I call “cyberspace.” The environment was a “massively multiple online game” (“MMOG”),andMMOGspace isquitedifferent fromthespacewecall real.

Realspaceis theplacewhereyouarerightnow:youroffice,yourden,maybe byapool.It’saworlddefinedbybothlawsthatareman-madeandothersthatare not.“Limited liability” for corporations is a man-made law. It means that the directorsof acorporation(usually)cannotbeheldpersonally liable for thesins of thecompany.Limitedlife forhumansisnotaman-madelaw:Thatweallwill die isnot theresultof adecisionthatCongressmade.Inreal space,our livesare subject tobothsortsof law,though inprinciplewecouldchangeonesort.

But thereareother sortsof laws inreal spaceaswell.Youbought thisbook, I trust,oryouborrowedit fromsomeonewhodid.If youstole it,youareathief, whether you are caught or not.Our language is a norm;norms are collectively determined.As our norms have been determined, your“stealing”makes you a thief,andnotjustbecauseyoutookit.Thereareplentyofwaystotakesomething butnotbethoughtof asathief.If youcameacrossadollarblowinginthewind, takingthemoneywillnotmakeyouathief; indeed,nottakingthemoneymakes youachump.Butstealingthisbookfromthebookstore(evenwhenthereareso many left forothers)marks youas a thief.Social normsmake it so,andwe live life subject to thesenorms.

Some of these norms can be changed collectively, if not individually. I can choose toburnmydraft card,but I cannot choosewhetherdoing sowillmake me a hero or a traitor. I can refuse an invitation to lunch,but I cannot choose whetherdoingsowillmakemerude.Ihavechoices inreal life,butescapingthe consequencesof thechoicesImakeisnotoneof them.Normsinthissensecon- strainus inways thatare so familiaras tobeallbut invisible.

MMOGspaceisdifferent.It is, firstof all,avirtual space—likeacartoonon atelevisionscreen,sometimesrenderedto lookthree-dimensional.Butunlikea cartoon,MMOGspaceenablesyoutocontrol thecharactersonthescreeninreal time. At least, you control your character—one among many characters con- trolledbymanyothers inthis space.Onebuilds theworldonewill inhabithere.

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As a child, you grew up learning the physics that governed the world of Road Runner andWile E.Coyote (violent but forgiving); your children will grow up making theworldof RoadRunnerandWileE.Coyote (still violent,butmaybe not so forgiving). They will define the space and then live out the story. Their choiceswillmake the lawsof that space real.

This is not to say that MMOG space is unreal.There is real life in MMOG space, constituted by how people interact. The“space”describes where people interact—muchastheyinteract inrealspacenodoubt,butwithsomeimportant differences. InMMOGspace the interaction is inavirtualmedium.This inter- action is“in”cyberspace. In1990s terms,people“jack”into thesevirtual spaces, and they do things there. And “they” turns out to be many many people. As EdwardCastronovaestimates,“anabsoluteminimumfigurewouldbe10million [butmy]guess is that it isperhaps20to30million”participatinginthesevirtual worlds.3 The “[t]ypical user spends 20–30 hours per week inside the fantasy. Powerusers spendeveryavailablemoment.”4Asoneessayestimates,“assuming just averagecontact timeamongthese9.4millionpeople, subscribers tovirtual worldscouldbedevotingover213millionhoursperweek tobuild theirvirtual lives.”5

Thethingspeopledotherearehighlyvaried.Someplayrole-playinggames: workingwithinaguildof otherplayers toadvance instatusandpower tosome ultimate end. Some simply get together and gab: They appear (in a form they select,withqualities theychooseandbiographies theyhavewritten) inavirtual roomandtypemessagestoeachother.Ortheywalkaround(again,theambigu- ity is not a slight one) and talk to people.My friend Rick does this as a cat—a male cat, he insists.As a male cat, Rick parades around this space and talks to anyone who’s interested.He aims to flush out the cat-loving sorts.The rest, he reports,hepunishes.

Othersdomuchmorethangab.Some,forexample,homestead.Depending on the world and its laws, citizens are given or buy plots of undeveloped land, whichtheythendevelop.Peoplespendextraordinaryamountsof timebuilding a life on these plots. (Isn’t it incredible the way these people waste time?While youandIspenduptoseventyhoursaweekworkingforfirmswedon’townand buildingfutureswe’renotsurewe’llenjoy,thesepeoplearedesigningandbuild- ing thingsandmakinga life,even if onlyavirtualone.Scandalous!)Theybuild houses—bydesigningandthenconstructingthem—havefamilyorfriendsmove in, and pursue hobbies or raise pets.They may grow trees or odd plants—like Martha’s.

MMOG space grew out of “MUD”or“MOO”space.6 MUDs and MOOs arevirtualworlds, too,but theyare text-basedvirtualworlds.Therearenoreal graphics inaMUDorMOO,just text, reportingwhat someone says anddoes.

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Youcanconstructobjects inMOOspaceandthenhavethemdothings.But the objects act only through the mediation of text. (Their actions are generally quite simple,but even simple can be funny.Oneyear, in a MUD that waspart of a cyberlaw class, someone built a character named JPosner. If you poked JPosner, he muttered, “Poking is inefficient.”Another character was FEaster- brook. Stand ina roomwithFEasterbrookanduse theword“fair,”andFEast- erbrookwould repeatwhat you said, substituting theword“efficient.”“It’s not fair”became“Youmean, it’snot efficient.”)

Althoughitwaseasy forpeoplewholikedtextsorwhowrotewell tounder- standtheattractionof these text-basedrealities, itwasnotsoeasy for themany whodidn’thavethat samefondness.MMOGspace lifts that limit justabit.It is themovieversionof acyberspacenovel.Youbuildthingshere,andtheysurvive your leaving.Youcanbuildahouse,andpeoplewalkingdownthe street see it. Youcanlet themcomein,andincomingintoyourhouse,theyseethingsabout you.Theycanseehowyouconstruct yourworld. If aparticularMMOGspace permits it, they might even seehow you’ve changed the lawsof the realworld. In real space, for instance, people“slip and fall”on wet floors. In the MMOG space you’ve built, that“law”may not exist. Instead, in your world,wet floors maymakepeople“slipanddance.”

The best example of this space today is the extraordinary community of Second Life. In it, people create both things and community, the avatars are amazinglywellcrafted,andtheirownersspendhundredsof thousandsofhours buildingthings inthis spacethatotherssee,andsomeenjoy.Somemakeclothes orhairstyles,somemakemachinesthatmakemusic.Whateverobjectorservice theprogramminglanguageallows,creators inSecondLifearecreating it.There aremorethan100,000residentsof SecondLifeat thetimeof thiswriting.They occupyclose to2,000servershousedindowntownSanFrancisco,andsuck250 kilowattsof electricity just to run thecomputers—about theequivalentof 160 homes.

ButherewegetbacktoMarthaandDank.Intheirexchange—whenMartha blamed Dank for having a dog that died with pain—they revealed what was most amazing about that particular MMOG.Martha’s remarks (“Why do you haveadogthat sufferswhendying?Getyourself apain-free-deathdog,andmy petals will cause no harm”) should have struck you as odd. You may have thought,“Howweirdthatsomeonewouldthinkthat thefault laynot inthepoi- sonouspetalsbut inadogthatdiedwithpain.”But inthis space,Dankdidhave achoiceabouthowhisdogwoulddie.Maybenotachoiceaboutwhether“poi- son”would“kill”adog,butachoiceaboutwhetherthedogwould“suffer”when it“died.”Healsohadachoice aboutwhether a copyof thedogcouldbemade, sothat if itdieditcouldbe“revived.”InMMOGspace,thesepossibilitiesarenot

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given by God.Or rather, if they are defined by God, then the players share the power of God. For the possibilities in MMOG space are determined by the code—the software, or architecture, that makes the MMOG space what it is. “What happens when” is a statement of logic; it asserts a relationship that is manifested incode. In real spacewedon’thavemuchcontrolover that code. In MMOGspacewedo.

So, when Martha said what she said about the dog, Dank made what seemedtomeanobvious response.“Whydoyour flowershave to staypoison- ousonce they leaveyour land?Whynotmake thepetalspoisonousonlywhen onyour land?When they leaveyour land—when, for example, theyareblown ontomy land—whynotmake themharmless?”

Itwas an idea.But it didn’t reallyhelp.ForMarthamadeher living selling these poisonous plants.Others (ok not many,but some) also liked the idea of this art tied todeath.So itwasnosolution tomakepoisonousplants thatwere poisonousonlyonMartha’sproperty,unlessMarthawasalso interested incol- lectinga lotof veryweirdpeopleonher land.

But the idea did suggest another. “Okay,” said Dank, “why not make the petalspoisonousonlywhen in thepossessionof someonewhohas‘purchased’ them? If theyare stolen,or if theyblowaway, then let thepetals lose theirpoi- son.Butwhenkeptbytheownerof theplant, thepetalskeeptheirpoison.Isn’t that a solution to theproblemthatbothof us face?”

Theideawas ingenious.NotonlydidithelpDank,ithelpedMarthaaswell. As the code existed, it allowed theft.7 (People want reality in that virtual space; therewillbe timeenoughforheavenwhenheavencomes.)But ifMarthacould modify the code slightly so that theft8 removed a plant’s poison, then “theft” would also remove the plant’s value. That change would protect the profit in her plants as well as protect Dank’s dogs. Here was a solution that made both neighborsbetteroff—what economists call apareto superiormove.And itwas asolutionthatwasaspossibleasanyother.All it requiredwasachangeof code.

Thinkforasecondaboutwhat’s involvedhere.“Theft”entails(atminimum) a change in possession. But in MMOG space “possession” is just a relation definedby the software thatdefines the space.That samecodemustalsodefine theproperties thatpossessionyields.Itmight,likerealspace,distinguishbetween havingacakeandeating it.Or itmighterase thatdistinction,meaningyoucan “eat”yourcake,butonceit’s“eaten,”itmagicallyreappears.InMMOGspaceyou can feedacrowdwith five loavesandtwofishes,and it isn’t evenamiracle.9

So why not craft the same solution to Martha and Dank’s problem? Why not define ownership to include the quality of poisonousness, and possession without ownership to be possession without poison? If the world is designed this way, then it could resolve the dispute between Martha and Dank, not by

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making one of them change his or her behavior, but by changing the laws of nature toeliminate theconflict altogether.

We’reashortwayintothisnotsoshortbook,thoughwhatI’mabouttosay maymake it a very short book indeed (for youat least).Thisbook is all about thequestionraisedbythis simplestory,andaboutanysimplicity inthisappar- ently simple answer. This is not a book about MMOG space or avatars. The story about Martha and Dank is the first and last example that will include avatars.But it is abookabout cyberspace.Myclaim is thatboth“on the Inter- net” and“in cyberspace,”we will confront precisely the questions that Martha andDankfaced,aswellas thequestions that their solutionraised.Both“onthe Internet” and“in cyberspace,” technology constitutes the environment of the space, and it will give us a much wider range of control over how interactions work inthat space thaninreal space.Problemscanbeprogrammedor“coded” into the story, and they can be “coded” away. And while the experience with gamers so far is that theydon’twant virtualworlds todeviate too far fromthe real, the important point for now is that there is the capacity to make these worldsdifferent. It is this capacity that raises thequestion that is at the coreof this book:What does it mean to live in a world where problems can be coded away? And when, in that world, should we code problems away, rather than learn towork themout,orpunish thosewhocause them?

It isnotMMOGspacethatmakes thesequestions interestingproblemsfor law; the very same problems will arise outside of MMOG space, and outside MUDsandMOOs.Theproblemsof these spaces areproblemsof the Internet ingeneral.Andasmoreofour lifebecomeswired(andweird), in thesense that moreof our lifemovesonline, thesequestionswill becomemorepressing.

ButIhave learnedenoughinthisbusiness toknowthatIcan’tconvinceyou of thiswithanargument.(I’vespent the last12years talkingabout this subject; at least I know what doesn’t work.) If you see the point, good for you. If you don’t, I must show you.So my method for readers of the second sort must be more indirect. Proof, for them, will come in a string of stories, which aim to introduceanddisorient.That,again, is thepurposeof this chapter.

Letmedescribea fewotherplaces and theoddities that inhabit them.

GOVERNORS

A state—call it“Boral”—doesn’t like its citizens gambling, even if many of its citizensdolikegambling.Butthestate is theboss; thepeoplehavevoted; the law is as it is.Gambling in the stateof Boral is illegal.

Thenalongcomes the Internet.With theNet streaming into theirhomes through phones or cable lines, some citizens of Boral decide that Internet

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gambling is thenext“killer app.”Acitizenof Boral setsupa“server”(a com- puter that is accessible on the Internet) that provides access to online gam- bling. The state doesn’t like it. It tells this citizen,“Shut down your server or we will lock you up.”

Wise, if evasive, the gamblingBoralianagrees to shuthis serverdown—at least in thestateofBoral.Buthedoesn’t choose to leave thegamblingbusiness. Instead, he rents space on a server in an “offshore haven.” This offshore web serverhumsaway,onceagainmakinggamblingavailableontheNetandacces- sible to thepeopleof Boral via the Internet.Here’s the importantpoint:Given the architecture of the Internet (at least as it was circa 1999), it doesn’t really matter where in real space the server is.Access doesn’t depend on geography. Nor,depending on how clever the gambling sorts are,does access require that the user know anything about who owns, or runs, the real server. The user’s accesscanbepassedthroughanonymizingsites thatmake itpractically impos- sible in theend toknow what wenton where andwithwhom.

The Boral attorney general thus now faces a difficult problem. She may have moved the server out of her state, but she hasn’t succeeded in reducing Boraliangambling.Before theNet, shewouldhavehadagroupof people she couldpunish—those runninggamblingsites,andthosewhogive thoseplaces custom.Now, the Net has made them potentially free from punishment—at the least because it is more difficult to know who is running the server or who is gambling. The world for this attorney general has changed. By going online, the gamblers moved into a world where this behavior is no longer regulable.

By“regulable” I mean simply that a certain behavior is capable of regula- tion.Thetermiscomparative,notabsolute—insomeplace,at sometime,acer- tainbehaviorwillbemoreregulable thanatanotherplaceandinanother time. My claim about Boral is simply that the Net makes gambling less regulable there than itwasbefore theNet.Orat least, in a sense thatwill becomeclearer as the story continues,with the architecture of the Net as it originally was, life on theNet is less regulable than lifeoff theNet.

JAKE’S COMMUNITIES

If youhadmetJakeataparty inAnnArbor(wereJakeataparty inAnnArbor), you would have forgotten him.10 If you didn’t forget him, you might have thought, here’s another quiet, dweeby University of Michigan undergraduate, terrifiedof theworld,or,at least,of thepeople in theworld.

You wouldn’t have figured Jake for an author—indeed, quite a famous short-story author, at least within his circles. In fact, Jake is not just a famous

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author,hewasalsoacharacter inhisownstories.Butwhohewas inhis stories was quite different from who he was in“real” life—if, that is, after reading his stories you still thought this distinction between“real life” and“not real life” mademuchsense.

Jakewrotestoriesaboutviolence—aboutsexaswell,butmainlyaboutvio- lence.Theyseethedwithhatred,especiallyof women.Itwasn’t enoughtorape awoman,shehadtobekilled.Anditwasn’tenoughthatshewaskilled,shehad to be killed in a particularly painful and tortured way.This is,however unfor- tunate, a genreof writing. Jakewasamasterof this genre.

In real space Jake had quite successfully hidden this propensity. He was oneof amillionboys:unremarkable, indistinguishable,harmless.Yethowever inoffensive in real space, the harmfulness he penned in cyberspace was increasingly well known. His stories were published in USENET, in a group called alt.sex.stories.

USENET isn’t itself anetwork,except in the sense that thepersonal adsof a national newspaper are part of a network. Strictly speaking,USENET is the productof aprotocol—asetof rulesnamedthenetworknewstransferprotocol (NNTP)—for exchanging messages intended for public viewing. These mes- sages areorganized into“newsgroups,”and thenewsgroupsareorganized into subjects.Most of the subjects are quite technical,many are related to hobbies, andsomearerelated tosex.Somemessagesnewsgroupscomewithpicturesor movies,but some, like Jake’s,are simply stories.

Thereare thousandsofnewsgroups,eachcarryinghundredsofmessagesat any one time. Anyone with access to a USENET server can get access to the messages(orat least totheoneshisadministratorwantshimtoread),andany- onewith access canpost amessageor respond toonealreadyposted. Imagine apublicbulletinboardonwhichpeoplepostquestionsor comments.Anyone can read the board and add his or her own thoughts. Now imagine 15,000 boards,eachwithhundredsof“threads”(stringsof arguments,eachtiedtothe next). That, in any one place, is USENET. Now imagine these 15,000 boards, withhundredsof threadseach,onmillionsof computersacross theworld.Post amessage inonegroup,andit isaddedtothatgroup’sboardeverywhere.That, for theworld, isUSENET.

Jake, as I said, posted to a group called alt.sex.stories.“Alt” in that name refers to thehierarchy that thegroupsitswithin.Initially, therewere sevenpri- mary hierarchies.11 “Alt”was created in reaction to this initial seven: Groups areaddedto the seven througha formalvotingprocessamongparticipants in thegroups.Butgroupsareadded to“alt”basedsolelyonwhetheradministra- tors choose to carry them, and, generally, administrators will carry them if they are popular, as long as their popularity is not controversial.

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Amongthesegroupsthatarecarriedonlyondemand,alt.sex.stories isquite popular.Aswithanywritingspace, if storiesare“good”by thestandardsof the space—if they are stories that users of the space demand—they are followed and their authorsbecomewell known.

Jake’s stuff was very valuable in just this sense. His stories, about kidnap- ping, torturing,raping,andkillingwomen,wereasgraphicandrepulsiveasany such story could be—which is why Jake was so famous among like-minded sorts. He was a supplier to these people, a constant and consistent fix. They needed these accounts of innocent women being violated, and Jake supplied themfor free.

One night in Moscow, a sixteen-year-old girl read a story by Jake. She showed it to her father, who showed it in turn to Richard DuVal, a Michigan alum. DuVal was shocked at the story, and angry that it bore the tag “umich.edu”on the story’s header.He called his alma mater and complained. They took thecomplaint seriously.12

Theuniversitycontactedthepolice; thepolicecontactedJake—withhand- cuffs and a jail cell.A slew of doctors examined him.Some concluded that he wasathreat.The localprosecutorsagreedwiththesedoctors,especiallyafterhis computerwasseizedande-mailswerediscoveredbetweenJakeandaCanadian fanwhowasplanningtore-enact inreal spaceoneof thestories Jakepublished incyberspace.At least, that’swhat thee-mails said.Noonecouldtell forcertain what the twomenreally intended. Jake said itwas all pure fiction,and indeed, therewasnoevidence toproveotherwise.

Nonetheless, federalchargeswerebroughtagainst Jakefor thetransmission of a threat. Jake said that his stories were only words, protected by the First Amendment to theU.S.Constitution.Amonthandahalf later,acourtagreed. Thechargesweredropped,13 andJakereturnedto thespecialkindof obscurity thathaddefinedhis lifebefore.

I don’t care so much just now about whether Jake Baker’s words should have been protected by the Constitution. My concern is Jake Baker himself, a personnormed intoapparentharmlessness in real space,but set free incyber- space tobecometheauthorof this violence.People said Jakewasbrave,buthe wasn’t “brave” in real space. He didn’t express his hatred in classes, among friends,or in the school newspaper.He slithered away to cyberspace, and only theredidhisdeviancy flourish.

Hedid this becauseof somethingabout him and somethingabout cyber- space. Jake was the sort who wanted to spread stories of violence, at least if he coulddosowithoutpublic account.Cyberspacegave Jake thispower. Jakewas ineffect anauthorandpublisher inone.Hewrote stories,andasquickly ashe finished them he published them—to some thirty million computers across

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the world within a few days.His potential audience was larger than twice that for the top fifteen best-selling novels combined,and though he made nothing fromhiswork, thedemandfor itwashigh.Jakehaddiscoveredaway tomain- line his depravity into the veins of a public for whom this stuff was otherwise quitedifficult to find.(Even Hustler wouldn’tpublish the likesof this.)

Of course, therewereotherways Jakecouldhavepublished.Hecouldhave offeredhisworktoHustler,orworse.Butnoreal-worldpublicationwouldhave given Jake a comparable audience. Jake’s readership was potentially millions, stretchingacross countryandcontinent,across cultureand taste.

This reach was made possible by the power in the network: Anyone any- wherecouldpublishtoeveryoneeverywhere.Thenetworkallowedpublication without filtering, editing, or, perhaps most importantly, responsibility. One could write what one wanted, sign it or not, post it to machines across the world,andwithinhours thewordswouldbeeverywhere.Thenetworkremoved themost importantconstraintonspeechinreal space—theseparationofpub- lisher fromauthor.There isvanitypublishinginreal space,butonlytherichcan use it to reach a broad audience. For the rest of us, real space affords only the access that thepublisherswant togiveus.

Thus cyberspace is different because of the reach it allows. But it is also different because of the relative anonymity it permits. Cyberspace permitted Jake to escape the constraints of real space.He didn’t“go to”cyberspace when hewrotehis stories, in the sense thathedidn’t“leave”AnnArbor.Butwhenhe was“in”cyberspace, it allowedhimtoescape thenormsofAnnArbor.Hewas freeof real-life constraints,of thenormsandunderstandings thathadsuccess- fully formedhimintoamemberof acollegecommunity.Maybehewasn’tper- fectlyathome;maybehewasn’t thehappiest.But theworldof theUniversityof Michiganhad succeeded in steeringhimaway fromthe lifeof apsychopath— exceptwhen it gavehimaccess to theNet.OntheNethewas someoneelse.

As the Internethasgrown, it hasproducedmanymoreopportunities for Jake-like characters—characters that do things in the virtual world that they would never do in the real world. One of the most popular MMOGs is a game called “Grand Theft Auto.” In this game, one practices committing crimes.Andoneof themost troublingusesof videochat is thepracticeof vir- tual-prostitutionbychildren.As the New York Times recently reported, thou- sands of children spend hundreds of hours prostituting themselves online. Sitting in the“privacy”of their own bedroom, using the iSight camera their parents gave them for Christmas, a 13-year-old girl or boy enacts the sexual behavior demanded by the audience. The audience gets their fix of sexual perversion. The kid gets money, and whatever psychological baggage this behavior creates.14

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It is impossibly difficult to look across this range of Jake-like characters and not think that, at some point, the virtual has crossed over into something real.Or, at least, the virtual has real effects—either on those who live it, or on thosewholivewiththem.15WhenJakewasprosecuted,manyFirstAmendment defenders argued his words, however vivid,never crossed into reality.And no doubt,there isadifferencebetweenwritingaboutrapeandraping, justas there is a difference between an actor enacting rape and actually raping someone. But I take it thatall concedea line iscrossedsomewhereaswemoveacross this rangeof Jake-likecharacters.If aparentwasuntroubledbythevirtualprostitu- tionofher son inhisbedroom,wewouldnotunderstandthat tobeprincipled free speech activism, even if the only“prostitution”was the son describing in texthowhewasmolestedby those in thechat.

Butmypoint isnot todraw linesbetween theacceptablevirtualdual-lives andtheunacceptable.It is insteadtoremarkthat this spaceenablesmoreof this duality.Andthoughpartof thisduality isalways“onlyvirtual,”andsometimes “onlywords,”real-space regulators (whetherparentsor governments)will feel compelled to react. The Net enables lives that were previously impossible, or inconvenient,oruncommon.At least someof thosevirtual liveswillhaveeffects onnon-virtual lives—boththe livesof thepeople living inthevirtual space,and the livesof thosearoundthem.

WORMS THAT SNIFF

A“worm”isabitof computercodethat is spitoutontheNetandworks itsway into the systems of vulnerable computers. It is not a“virus”because it doesn’t attach itself tootherprogramsandinterferewith theiroperation.It is justabit of extra code that does what the code writer says.The code could be harmless andsimply sitonsomeone’smachine.Or it couldbeharmfulandcorrupt files ordootherdamage that its authorcommands.

Imagine a worm designed to do good (at least in the minds of some). Imagine that thecodewriter is theFBIandthat theFBI is looking forapartic- ular document belonging to the National Security Agency (NSA). Suppose that thisdocument is classifiedandillegal topossesswithout theproperclear- ance. Imagine that thewormpropagates itself ontheNet, finding itswayonto harddiskswherever it can.Onceonacomputer’sharddisk, it scans theentire disk.If it finds theNSAdocument, it sendsamessageback to theFBIsayingas much.If itdoesn’t, it erases itself.Finally,assumethat it candoall thiswithout “interfering”with the operation of the machine. No one would know it was there; itwouldreportbacknothingexcept that theNSAdocumentwasonthe harddisk.

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Is thisanunconstitutionalworm?This isahardquestionthatat first seems tohaveaneasyanswer.Thewormisengaging inagovernment-initiatedsearch of citizens’ disks. There is no reasonable suspicion (as the law ordinarily requires) that thediskholds thedocument forwhichthegovernment is search- ing. It is a generalized, suspicionless search of private spaces by the govern- ment.

Fromthestandpointof theConstitution—theFourthAmendment inpar- ticular—youdon’t get anyworse than that.TheFourthAmendmentwaswrit- ten against the background of just this sort of abuse. Kings George II and George III would give officers a“general warrant”authorizing them to search through private homes looking for evidence of a crime.16 No suspicion was neededbefore theofficer ransackedyourhouse,butbecausehehadawarrant, youwerenotable tosuetheofficer for trespass.Theaimof theFourthAmend- mentwas torequireat least suspicion,so that theburdenof thesearch fellona reasonably chosenclass.17

But is thewormreally thesameastheKing’sgeneral search?Oneimportant difference is this:Unlike thevictimsof thegeneral searches that theFramersof ourConstitutionwereconcernedabout,thecomputeruserneverknowsthathis or her disk is being searched by the worm.With the general search, the police were breaking into a house and rummaging through private stuff. With the worm,it isabitof computercodethatdoes thebreaking,and(I’veassumed) it can “see” only one thing. And perhaps more importantly, unlike the general search,thewormlearns littleand leavesnodamageafter it’s finished:Thecode can’t read private letters; it doesn’t break down doors; it doesn’t interfere with ordinary life.And the innocenthavenothing to fear.

Thewormis silent inaway thatKingGeorge’s troopswerenot. It searches perfectlyandinvisibly,discoveringonly theguilty.Itdoesnotburdenthe inno- cent; itdoesnot trouble theordinarycitizen; itcapturesonlywhat isoutsidethe protectionof the law.

Thisdifferencecomplicates theconstitutionalquestion.Theworm’sbehav- ior is like a generalized search in that it is a search without suspicion.But it is unlike thehistorical generalized search in that it createsnodisruptionof ordi- nary life and“discovers”only contraband. In this way, the worm is like a dog sniff—whichat leastatairports isconstitutionallypermissiblewithoutprobable cause18—but better. Unlike the dog sniff, the worm doesn’t even let the com- puteruserknowwhenthere is a search(andhence theuser suffersnoparticu- larizedanxiety).

Is the worm, then, constitutional? That depends on your conception of what the Fourth Amendment protects. In one view, the amendment protects against suspicionlessgovernmental invasions,whether those invasionsarebur-

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densome or not. In a second view, the amendment protects against invasions thatareburdensome,allowingonly those forwhichthere isadequatesuspicion that guilt will be uncovered. The paradigm case that motivated the framers does not distinguish between these two very different types of protections, because the technologyof the timewouldn’tdistinguisheither.Youcouldn’t— technically—have a perfectly burdenless generalized search in 1791. So they didn’t—technically—express a view about whether such a search should be constitutionallyproscribed.It is insteadwewhomustchoosewhat theamend- ment is tomean.

Let’s take the example one step further. Imagine that the worm does not search every machine it encounters,but instead can beput on a machineonly with judicial authorization—say,awarrant.Nowthe suspicionless-searchpart of theproblemhasbeen removed.Butnow imaginea secondpart to this rule: The government requires that networks be constructed so that a worm, with judicial authorization, could be placed on any machine. Machines in this regime,inotherwords,mustbemadeworm-ready,eventhoughwormswillbe deployedonlywith judicialwarrant.

Is there any constitutional problem with this? I explore this question in much greater detail in Chapter 11, but for now, notice its salient feature. In bothcases,wearedescribingaregimethatallowsthegovernmenttocollectdata aboutus inahighly efficientmanner—inexpensively, that is, forboth thegov- ernment and the innocent. This efficiency is made possible by technology, which permits searches that before would have been far too burdensome and invasive. In both cases, then, the question comes to this: When the ability to search without burden increases, does the government’s power to search increase as well? Or,more darkly, as James Boyle puts it:“Is freedom inversely related to the efficiency of the available means of surveillance?”For if it is, as Boyleputs it, then“wehavemuch to fear.”19

Thisquestion,of course, isnot limitedtothegovernment.Oneof thedefin- ing features of modern life is the emergence of technologies that make data collectionandprocessingextraordinarilyefficient.Mostofwhatwedo—hence, most of what we are—is recorded outside our homes. When you make tele- phone calls, data are recorded about whom you called, when, how long you spoke, and how frequently you made such calls.20 When you use your credit cards,data are recorded about when,where,what, and from whom you made purchases.Whenyoutakea flight,your itinerary is recordedandpossiblypro- filedby thegovernment todeterminewhetheryouare likely tobea terrorist.21

If you drive a car in London, cameras record your license plate to determine whetheryou’vepaid theproper“congestiontax.”NodoubtHollywood’s image of counter-terroristunits—whereonepersonsittingbehindaterminal instantly

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tracks the lifeof another—iswrong.But itneednotbeterriblywrongformuch longer.Itmaynotbeeasyto imaginesystemsthat followanindividualwherever he goes, but it is easy to imagine technologies that gather an extraordinary amountofdataabouteverythingwedoandmakethosedataaccessible tothose withtheproperauthorization.Theintrusivenesswouldbeslight,andthepayoff couldbegreat.

Bothprivate andpublicmonitoring in thedigital age, then,have the same salient feature: monitoring, or searching, can increase without increasing the burdenontheindividualsearched.Bothpresentasimilarquestion:Howshould we thinkabout this change?Howshould theprotection the framersgaveusbe applied toaworld the framers couldn’t even imagine?

THEMES

Fourstories, fourthemes,eachawindowintooneaspectof cyberspacethatwill be central in all that follows. My aim in the balance of this book is to work through the issues raised by these four themes. I thus end this chapter with a mapof thefour, laidout intheordertheywillappear inthebalanceof thebook. Thatorderbeginswith storynumber two.

Regulability

“Regulability” is the capacity of a government to regulate behavior within its properreach.Inthecontextof theInternet,thatmeanstheabilityof thegovern- ment to regulate the behavior of (at least) its citizens while on the Net. The storyaboutBoralwasthusastoryaboutregulability,ormorespecifically,about thechanges inregulability thatcyberspacebrings.BeforetheInternet, itwasrel- atively easy for the attorney general of Boral to control commercial gambling within her jurisdiction; after the Internet, when the servers moved outside of Boral, regulationbecamemuchmoredifficult.

For the regulator, this is just a particular instance of a much more general story.To regulate well, you need to know (1) who someone is, (2) where they are,and(3)what they’redoing.Butbecauseof theway the Internetwasorigi- nallydesigned(andmoreonthisbelow), therewasnosimpleway toknow(1) who someone is, (2) where they are, and (3) what they’re doing. Thus, as life movedonto(thisversionof) theInternet, theregulabilityof that lifedecreased. The architecture of the space—at least as it was—rendered life in this space less regulable.

ThebalanceofPart I isaboutregulability.Canweimagineamoreregulable cyberspace? Is this thecyberspacewearecoming toknow?

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Regulation by Code

The story about Martha and Dank is a clue to answering this question about regulability. If inMMOGspacewecanchange the lawsof nature—makepos- sible what before was impossible, or make impossible what before was possi- ble—whycan’twechangeregulability incyberspace?Whycan’twe imaginean Internet or a cyberspace where behavior can be controlled because code now enables that control?

For this, importantly, is justwhatMMOGspace is.MMOGspace is“reg- ulated,” though the regulation is special. In MMOG space regulation comes through code. Important rules are imposed, not through social sanctions, and not by the state, but by the very architecture of the particular space. A rule is defined,not through a statute,but through the code that governs the space.

This is the second theme of this book:There is regulation of behavior on the Internet and in cyberspace, but that regulation is imposed primarily throughcode.Thedifferences in theregulationseffected throughcodedistin- guishdifferentpartsof theInternetandcyberspace.Insomeplaces, life is fairly free; in other places, it is more controlled. And the difference between these spaces is simplyadifference inthearchitecturesof control—that is,adifference in code.

If wecombine the first two themes, then,wecome toa central argument of thebook:Theregulabilitydescribed in the first themedependsonthecode described in the second.Somearchitecturesof cyberspacearemore regulable than others; some architectures enable better control than others.Therefore, whether a part of cyberspace—or the Internet generally—can be regulated turns on the nature of its code. Its architecture will affect whether behavior can be controlled.To follow Mitch Kapor, its architecture is its politics.22

And from this a further point follows: If some architectures are more regulable thanothers—if somegivegovernmentsmorecontrol thanothers— then governments will favor some architectures more than others. Favor, in turn, can translate into action, either by governments, or for governments. Eitherway, thearchitectures that render space less regulablecan themselvesbe changedtomake thespacemoreregulable.(Bywhom,andwhy, is amatterwe take up later.)

This fact about regulability is a threat to thosewhoworry about govern- mentalpower; it is a reality for thosewhodependupongovernmentalpower. Somedesignsenablegovernmentmore thanothers; somedesignsenablegov- ernment differently; some designs should be chosen over others, depending upon the values at stake.

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Latent Ambiguity

Thewormtellsadifferentstorystill.Thoughit isa technologyforsearching,the worm’s functiondiffers from“searching”inreal space.Inreal space,asearchcar- riescosts: theburdensof thesearch,the insecurities itmightcreate,theexposure it might make possible to invasions beyond a legitimate reach.23 The worm erases those costs:Theburden is gone, the search is (practically) invisible, and thesearchingtechnology isprogrammedtofindonlywhat is illegal.This raises aquestionabouthowsucha searchshould,under theConstitution,beunder- stood.

Afairviewof theConstitution’sprotectionscouldgoineitherof twoways. Itmaybe thatwe see theworm’s invasionas inconsistentwith thedignity that the amendment was written to protect,24 or it may be that we see the invasion of thewormas sounobtrusiveas tobereasonable.Theanswercouldbeeither, whichmeans that thechangerevealswhat Iwill call“a latentambiguity”in the original constitutional rule. In theoriginal context, the rulewas clear (nogen- eralizedsearch),but in thecurrentcontext, theruledependsuponwhichvalue theConstitutionwasmeanttoprotect.Thequestionisnowambiguousbetween (at least) twodifferent answers.Either answer is possible,dependingupon the value, sonowwemust chooseoneor theother.

Youmaynotbuymystoryabouttheworm.Youmaythinkit ispurescience fiction.Butby theendof thebook,Iwill convinceyouthat thereareanynum- ber of cases in which a similar ambiguity troubles our constitutional past. In many of them our Constitution yields no answer to the question of how it should be applied, because at least two answers are possible—in light of the choices that the framersactuallymadeandgiven the technologiesof today.

ForAmericans,thisambiguitycreatesaproblem.Ifwe livedinanerawhen courts felt entitled to select the value that produced an answer that made the mostsense inthecontext,therewouldbenoproblem.Latentambiguitieswould be answered by choices made by judges—the framers could have gone either way,butour judges choose togo this way.

But we don’t live in such an era, and so we don’t have a way for courts to resolve these ambiguities. As a result, we must rely on other institutions. My claimisadarkone:Wehavenosuchinstitutions.If ourwaysdon’tchange,our constitution incyberspacewill bea thinnerand thinner regime.

Cyberspace will present us with ambiguities over and over again. It will press thisquestionofhowbest togoon.Wehavetools fromreal space thatwill help resolve the interpretive questions by pointing us in one direction or another,at least someof thetime.But intheendthetoolswillguideusevenless than theydo inreal spaceandtime.Whenthegapbetween theirguidanceand

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whatwedobecomesobvious,wewillbe forcedtodosomethingwe’renotvery goodatdoing—decidingwhatwewant,andwhat is right.

Competing Sovereigns

Butregulationbywhom?Fortherulesaredifferent inoneplaceversusanother. This was one important issue raised by Jake Baker. Jake lived in Ann

Arbor,Michigan.His life therewas subject to thenormsofAnnArbor,andhe apparently adapted to these norms reasonably well. The authority of that space governed Jake, and, as far as anyone knew, it appeared to govern him exclusively.

But in cyberspace, Jake’s behavior changed, inpartbecause thenormsof the space were different. That created the problem. For when Jake“went to” cyberspace, he didn’t leave real space. In particular, he never left Ann Arbor. While sitting inadormat theUniversityof Michigan,hewasable to teleport himself—in the only normatively significant sense—to a different world where thenormsof civilityanddecency thatgovernedoutsidehisdormroom did not reign. Cyberspace gave Jake the chance to escape Ann Arbor norms and to live according to the norms of another place. It created a competing authority for Jakeandgavehimthechance to selectbetween thesecompeting authorities merely by switching his computer on or off.

Again,my point is not that no similar possibility exists in real space—it plainlydoes.There isnodoubta Jake living inHackensack,NewJersey(a sub- urban town with suburban values),who drives every night into lower Man- hattanand lives for a fewhours according to the“rules”of lowerManhattan. Those rules are not the rules of Hackensack; that life is different. Like Ann Arbor Jake, the Hackensack Jake lives under competing authorities. But between the livesof these twoJakes, there is adifference indegree that ripens into a difference in kind: It is at least conceivable that the Ann Arbor Jake raises a more significant problem for Ann Arbor than the Hackensack Jake raises for Hackensack. The differences could well be greater, and the effect more pervasive.

Nor shouldwe think toonarrowlyabout thecompetingnormative com- munities intowhicha Jakemightmove.“Escape”here canbegoodorbad. It is escape when a gay teen in an intolerant small town can leave the norms of that town through a gay chat room onAmerica Online;25 it is escape when a child predator escapes the norms of ordinary society and engages a child in online sex.26 Bothescapesareenabledby thearchitectureof cyberspaceaswe now know it.Our attitudes about each,however, are very different. I call the first escape liberatingandthesecondcriminal.Thereare somewhowouldcall

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both escapes criminal, and some who would call both liberating. But the question isn’t about name-calling, it’s about the consequences of living in a world where we can occupy both sorts of space at the same time. When 50 people from 25 jurisdictions around the world spend 2,000 hours building a virtual community inSecondLife that ishousedonservers inSanFrancisco, what claim should real world jurisdictions have over that activity? Which of the 25 jurisdictions matters most?Which sovereign should govern?

{TXB2} These four themes frameeverything that follows.They alsomap theunder- standing that I want this book to provide. Regulation in cyberspace can help us see something important about how all regulation works. That’s the lesson of the first theme,“regulability.”It will also introduce a regulator (“code”)whose significancewedon’t yet fullyunderstand.That’s the second theme,“RegulationbyCode.”That regulationwill render ambiguous certain values that are fundamental to our tradition.Thus, the third theme,“latent ambiguity.” That ambiguity will require us, the United States, to make a choice. But this choice is just one among many that many sovereigns will have to make. In the end the hardest problem will be to reckon these“com- peting sovereigns,” as they each act to mark this space with their own dis- tinctive values.

I explore these four themes against a background that, as I said at the start,haschangedsignificantly since the first editionof thisbook.WhenI first wrote thebook,two ideas seemedtodominatedebateabout theNet: first, that the government could never regulate the Net, and second, that this was a goodthing.Today,attitudesaredifferent.There is still thecommonplace that government can’t regulate, but in a world drowning in spam, computer viruses, identity theft, copyright“piracy,”and the sexual exploitation of chil- dren, the resolve against regulation has weakened.We all love the Net.But if some government could really deliver on the promise to erase all the bads of this space,most of us would gladly sign up.

Yet while attitudes about the Net have progressed, my own views have not. I still believe the Net can be regulated. I still believe that the obvious consequence of obvious influences will be to radically increase the ability of governments to regulate this Net. I also still believe that, in principle, this is not a bad thing. I am not against regulation,properly done. I believe regula- tion is essential to preserving and defending certain fundamental liberties. But I also still believe that we are far from a time when our government in particular can properly regulate in this context. This is both because of a general skepticismaboutgovernment—grounded inadisgust about thepar- ticular formof corruption thatdefineshowourgovernment functions—and

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a particular skepticism about government—that it has not yet fully recog- nized just how regulation in the digital age works.

Nodoubt thisparticularmixof viewswill continue topuzzle some.How can I believe in regulation and yet be so skeptical about government? But it doesn’t takemuch imagination tounderstandhowtheseapparently conflict- ingviews cango together. I take itweall believe in thepotential of medicine. But imagine your attitude if you were confronted with a“doctor”carrying a vialof leeches.There’smuchwecoulddo in this context,orat least, that ismy view.But there’s averygoodreasonnot towant todoanythingwith thispar- ticular doctor.

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P A R T O N E

“ r e g u l a b i l i t y ”

It is said that cyberspace can’tbe regulated.Butwhatdoes itmean to say that something could be regulated? What makes regulation possible? That’s the questionraised in thisPart. If the Internet can’tbe regulated,why?Andwhat- ever the reason, can it change? Might an unregulable space be tamed? Might theWildWest be won,and how?

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T H R E E

i s - i s m :

i s t h e w a y i t i s t h e w a y i t m u s t b e ?

The rise of an electronic medium that disregards geographical bound- aries throws the law into disarray by creating entirely new phenomena that need to become the subject of clear legal rules but that cannot be governed, satisfactorily, by any current territorially based sovereign.

David Johnson and David Post1

Some things never change about governing the Web. Most prominent is its innate ability to resist governance in almost any form.

Tom Steinert-Threlkeld2

IF THEREWASA MEME THAT RULED TALKABOUT CYBERSPACE, ITWAS THAT CYBERSPACE wasaplace that couldnotbe regulated.That it“cannotbegoverned”; that its “nature”is to resist regulation.Not that cyberspacecannotbebroken,or that governmentcannot shut itdown.But if cyberspaceexists, so first-generation thinkinggoes,government’spoweroverbehavior there isquite limited. In its essence, cyberspace is a space of no control.

Nature.Essence. Innate.Theway thingsare.Thiskindof rhetoric should raise suspicions in any context. It should especially raise suspicion here. If there is any place where nature has no rule, it is in cyberspace. If there is any place that is constructed, cyberspace is it.Yet the rhetoric of “essence”hides this constructedness. It misleads our intuitions in dangerous ways.

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This is the fallacy of “is-ism”—the mistake of confusing how some- thing is with how it must be.There is certainly a way that cyberspace is.But how cyberspace is is not how cyberspace has to be. There is no single way that the Net has to be; no single architecture that defines the nature of the Net. The possible architectures of something that we would call “the Net” are many, and the character of life within those different architectures is diverse.

That most of us commit this fallacy is not surprising. Most of us haven’t a clue about how networks work.We therefore have no clue about how they could be different.We assume that the way we find things is the way things have to be. We are not trained to think about all the different ways technology could achieve the same ends through different means. That sort of training is what technologists get.Most of us are not technol- ogists.

But underlying everything in this book is a single normative plea: that all of us must learn at least enough to see that technology is plastic. It can be remade to do things differently. And that if there is a mistake that we who know too little about technology should make, it is the mistake of imagining technology to be too plastic, rather than not plastic enough.We should expect—and demand—that it can be made to reflect any set of val- ues that we think important.The burden should be on the technologists to show us why that demand can’t be met.

The particular is-ism that I begin with here is the claim that cyberspace can’t be regulated. As this, and the following chapters argue, that view is wrong.Whether cyberspace can be regulated depends upon its architecture. The original architecture of the Internet made regulation extremely diffi- cult. But that original architecture can change.And there is all the evidence in the world that it is changing. Indeed, under the architecture that I believe will emerge, cyberspace will be the most regulable space humans have ever known.The“nature”of the Net might once have been its unreg- ulability; that“nature” is about to flip.

To see the flip, you must first see a contrast between two different cyber-places.These two cyber-places are ideal types, and, indeed,one of the two ideals no longer exists anywhere on the Net.That fact is confirmation of the point this section aims to make: that we’re moving from one Internet to another, and the one we’re moving to will be significantly more regula- ble.

The following descriptions are not technical; I don’t offer them as com- plete definitions of types of networks or types of control. I offer them to illustrate—to sketch enough to see a far more general point.

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CYBER-PLACES: HARVARD VERSUS CHICAGO

TheInternetwasbornatuniversities in theUnitedStates. Its first subscribers were researchers. But as a form of life, its birth was tied to university life. It swept studentsonline,pulling themaway fromlife in real space.TheNetwas oneof many intoxicantsoncollegecampuses in themid-1990s,and its signif- icance only grew through time. As former New York Times columnist J. C. Herz wrote in her first book about cyberspace:

WhenI lookup, it’s four-thirty in themorning.“Noway.”I look fromtheclock tomy

watch.Way. I’ve been in front of this screen for six hours, and it seems like no time

at all. I’m not even remotely tired. Dazed and thirsty, but not tired. In fact, I’m

euphoric. I stuff adisheveledheapof textbooks,photocopiedarticles,hilighters and

notes into my backpack and run like a madwoman up the concrete steps, past the

security guard, and outside into the predawn mist. . . .

I stop where a wet walkway meets a dry one and stand for a sec. . . . [I] start

thinking about this thing that buzzes around the entire world, through the phone

lines, all day and all night long. It’s right under our noses and it’s invisible. It’s like

Narnia,orMagritte,or Star Trek, anentiregoddamnedworld.Except itdoesn’tphys-

ically exist. It’s just the collective consciousnessof however many people areon it.

This really is outstandingly weird.3

Yetnotalluniversitiesadopted theNet in thesameway.Orputdifferently, the access universities granted was not all the same.The rules were different. The freedoms allowed were different. One example of this difference comes from two places I knew quite well, though many other examples could make the same point.

In themiddle1990s at theUniversityof Chicago, if youwantedaccess to the Internet, you simply connected your machine to Ethernet jacks located throughout theuniversity.4 Anymachinewith anEthernet connectioncould beplugged into these jacks.Onceconnected,yourmachinehad full access to the Internet—access, that is, that was complete, anonymous, and free.

The reason for this freedom was a decision by an administrator—the then-Provost,Geoffrey Stone, a former dean of the law school and a promi- nent free speech scholar.When theuniversitywasdesigning itsnet, the tech- nicians asked Stone whether anonymous communication should be permitted. Stone, citing the principle that the rules regulating speech at the university shouldbeasprotectiveof free speechas theFirstAmendment, said yes: People should have the right to communicate at the university anony- mously, because the First Amendment to the Constitution guarantees the

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samerightvis-à-visgovernments.Fromthatpolicydecision flowedthearchi- tecture of the University of Chicago’s net.

AtHarvard, the rules aredifferent. If youplugyourmachine intoanEth- ernet jackat theHarvardLawSchool,youwillnotgainaccess to theNet.You cannot connect your machine to the Net at Harvard unless the machine is registered—licensed, approved, verified. Only members of the university communitycanregister theirmachines.Onceregistered,all interactionswith thenetworkaremonitoredand identified toaparticularmachine.To join the network,usershave to“sign”auseragreement.Theagreementacknowledges this pervasive practice of monitoring.Anonymous speech on this network is notpermitted—it is against the rules.Access canbecontrolledbasedonwho you are, and interactions can be traced based on what you did.

This design also arose from the decision of an administrator, one less focused on the protections of the FirstAmendment.Control was the ideal at Harvard; access was the ideal at Chicago. Harvard chose technologies that made control possible;Chicago chose technologies that made access easy.

These twonetworksdiffer in at least two importantways.First andmost obviously, theydiffer in thevalues theyembrace.5 Thatdifference isbydesign. At the University of Chicago, First Amendment values determined network design;different values determined Harvard’s design.

But theydiffer inasecondwayaswell.Becauseaccess is controlledatHar- vardand identity isknown,actionscanbe tracedback to their root in thenet- work.Becauseaccess isnot controlledatChicago,and identity isnotknown, actions cannot be traced back to their root in the network. Monitoring or tracking behavior at Chicago is harder than it is at Harvard.Behavior in the Harvardnetwork ismorecontrollable than in theUniversityof Chicagonet- work.

The networks thus differ in the extent to which they make behavior within each network regulable.This difference is simply a matter of code—a difference in the software and hardware that grants users access. Different code makes differently regulable networks.Regulability is thus a function of design.

These two networks are just two points on a spectrum of possible net- workdesigns.Atoneextremewemightplace the Internet—anetworkdefined by a suite of protocols that are open and nonproprietary and that require no personal identification tobeaccessedandused.At theother extremeare tra- ditional closed, proprietary networks, which grant access only to those with express authorization; control, therefore, is tight. In between are networks thatmixelementsof both.Thesemixednetworksadda layerof control to the otherwise uncontrolled Internet.They layer elements of control on top.

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Thus the original—there have been some changes in the last years6— Universityof Chicagonetworkwasclose to thenormfor Internetaccess in the middle of the 1990s.7 Let’s call it Net95.At the other extreme are closed net- works that both predate the Internet and still exist today—for example, the ATMnetwork,whichmakes itpossible toget cash fromyourCaliforniabank at 2:00 A.M. while in Tblisi.And in the middle are Harvard-type networks— networks that add a layer of control on top of the suite of protocols that define “the Internet.” These protocols are called “TCP/IP.” I describe them more extensively in Chapter 4. But the essential feature of the Harvard net- work is that this suite was supplemented.You get access to the Internet only after you’ve passed through this layer of control.

All threedesignsarecommunicationnetworks thatare“like”the Internet. But their differences raise an obvious question: When people say that the Internet is “unregulable,”which network are they describing? And if they’re talkingaboutanunregulablenetwork,why is itunregulable?What features in its design make it unregulable?And could those features be different?

Consider threeaspectsof Net95’sdesign thatmake ithard fora regulator tocontrolbehavior there.Fromtheperspectiveof ananonymity-lovinguser, theseare“features”of Net95—aspects thatmake thatnetworkmorevaluable. But from the perspective of the regulator, these features are“bugs”—imper- fections that limit thedata that theNetcollects,eitherabout theuserorabout the material he or she is using.

The first imperfection is information about users—who the someone is who is using the Internet. In the words of the famous New Yorker cartoon of two dogs sitting in front of a PC,“On the Internet, nobody knows you’re a dog.”8 No one knows, because the Internet protocols don’t require that you credentialwhoyouarebeforeyouuse the Internet.Again, the Internet proto- col doesn’t require that credential; your local access point, like the Harvard network, might. But even then, the information that ties the individual to a certain network transaction is held by the access provider. It is not a part of your Internet transaction.

The second“imperfection” is information about geography—where the someone is who is using the Internet. As I will describe more in Chapter 4, althoughthe Internet is constitutedbyaddresses, thoseaddresseswere initially simply logical addresses. They didn’t map to any particular location in the physicalworld.Thus,whenI receiveapacketof data sentbyyou through the Internet, it is certainly possible for me to know the Internet address from which your packet comes,but I will not know the physical address.

And finally, the third“imperfection” is information about use—what is thedatabeing sentacross thisnetwork;what is itsuse?The Internetdoesnot

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require anyparticular labeling systemfordatabeing sent across the Internet. Again, as we’ll see in more detail below, there are norms that say something, butnorule toassuredatagetsdistributed just according to thenorms.Noth- ingputs thebits intoacontextof meaning,at leastnot inaway thatamachine canuse.Net95hadnorequirement thatdatabe labeled.“Packets”of data are labeled, in the senseof havinganaddress.Butbeyond that, thepackets could contain anything at all.

These three“imperfections”tie together: Because there is no simple way to know who someone is, where they come from, and what they’re doing, there isno simpleway to regulatehowpeoplebehaveon theNet. If youcan’t discoverwhodidwhatandwhere,youcan’t easily impose rules that say“don’t do this, or at least, don’t do it there.” Put differently, what you can’t know determines what you can control.

Consideranexample tomake thepointclearer.Let’s say thestateof Penn- sylvaniawants toblockkids fromporn. It thuspasses a rule that says“Nokid inPennsylvaniacangetaccess toporn.”Toenforce that rule,Pennsylvaniahas got to know (1) whether someone is a kid, (2) where they come from (i.e., PennsylvaniaorMaine),and(3)what they’re lookingat (pornormarzipan). Net95,however,won’t be of much help to Pennsylvania as it tries to enforce this rule. People accessing content in Pennsylvania using Net95 need not reveal anythingaboutwhotheyareorwhere theycomefrom,andnothing in the design of Net95 requires sites to describe what content they carry.These gaps indatamakeregulatinghard.Thus fromtheperspectiveof the regulator, these are imperfections in the Net’s original design.

But theHarvardnetworksuggests that it is at leastpossible for the“bugs” in Net95 to be eliminated. The Net could know the credentials of the user (identityand location)andthenatureof thedatabeingsent.Thatknowledge could be layered onto the Internet without destroying its functionality. The choice, in other words, is not between the Internet and no Internet, or between the Internet and a closed proprietary network. Harvard suggests a middle way. Architectures of control could be layered on top of the Net to “correct”oreliminate“imperfections.”Andthesearchitectures could, inother words, facilitate control.9

That is the first, very small, claim of this early chapter in a story about emerging control:Architectures of control are possible; they could be added to the Internet thatwealreadyknow.If theywereadded, thatwouldradically change the character of the network.Whether these architectures should be added depends upon what we want to use the network for.

I say this is a small claim because, while it is important, it is the sort of point thatone recognizes asobvious even if onedidn’t see it originally.More

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than obvious, the point should be pedestrian. We see it in lots of contexts. Think, forexample,of thepostoffice.WhenIwasgrowingup, thePostOffice was a haven for anonymous speech.The job of the Post Office was simply to deliver packages. Like Net95, it didn’t worry about who a piece of mail was from,orwhatwas in theenvelopeorpackage.Therewasnoenforcedrequire- ment thatyouregisterbeforeyousenda letter.Therewasnoenforcedrequire- ment that the letterhaveareturnaddressor that thereturnaddressbecorrect. If you were careful to avoid fingerprints, you could use this government- subsidized facility to send perfectly anonymous messages.

Obviously, the Post Office could be architected differently. The service could require, for example, a return address. It could require that you verify that the returnaddresswas correct (for example,by checkingyour IDbefore it accepted a package). It could even require inspection before it shipped a particularpackageorenvelope.Allof these changes in theprocedures for the post would produce a world in which mail was more easily monitored and tracked.Thegovernmentmakes that choicewhen itdesigns thePostOfficeas it does. If monitoring becomes important, the government can change the system to facilitate it. If not, they can leave the postal system as it (largely) is. But if it does change the system to make monitoring more simple, that will reflect changes in values that inform the design of that network.

The claim of this book is that there are sufficient interests to move the Net95 fromadefaultof anonymity toadefaultof identification.Butnothing I’ve saidyet showshow.Whatwouldgetus fromtherelativelyunregulable lib- ertarian Net to a highly regulable Net of control?

This is the question for the balance of Part I. I move in two steps. In Chapter 4, my claim is that even without the government’s help, we will see theNetmove toanarchitectureof control. InChapter5, I sketchhowgovern- ment might help.The trends promise a highly regulable Net—not the liber- tarian’sutopia,not theNetyour father (ormore likely yourdaughteror son) knew,but a Net whose essence is the character of control.

An Internet, in other words, that flips the Internet as it was.

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F O U R

a r c h i t e c t u r e s o f c o n t r o l

THE INVISIBLE MAN DOESN’T FEAR THE STATE. HE KNOWS HIS NATURE PUTS HIM beyond its reach (unlesshegets stupid,andof course,he always gets stupid). His story is thekey to a general lesson: If you can’t know whosomeone is,or where he is, or what he’s doing, you can’t regulate him.His behavior is as he wants it to be.There’s little the state can do to change it.

So too with the original Internet: Everyone was an invisible man. As cyberspace was originally architected, there was no simple way to know who someone was,where he was,or what he was doing.As the Internet was orig- inally architected, then, there was no simple way to regulate behavior there.

The aim of the last chapter, however,was to add a small but important point to this obvious idea:Whatever cyberspacewas, there’sno reason it has to stay this way. The“nature”of the Internet is not God’s will. Its nature is simply the product of its design. That design could be different. The Net could be designed to reveal who someone is, where they are, and what they’re doing. And if it were so designed, then the Net could become, as I will argue throughout this part, the most regulable space that man has ever known.

In this chapter, Idescribe thechanges that could—andare—pushing the Net fromtheunregulable space itwas, to theperfectly regulable space it could be.These changes arenotbeingarchitectedbygovernment.Theyare instead beingdemandedbyusersanddeployedbycommerce.Theyarenot theprod- uct of some 1984-inspired conspiracy; they are the consequence of changes made for purely pragmatic, commercial ends.

Thisobviouslydoesn’tmake thesechangesbadorgood.Mypurpose just now is not normative, but descriptive. We should understand where we are going, and why,before we ask whether this is where,or who,we want to be.

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{TXB2} The history of the future of the Internet was written in Germany in January 1995.German lawregulatedporn. InBavaria, it regulatedpornheavily.Com- puServemade(amoderateamountof, throughUSENET,)pornavailable to its users.CompuServewasservingBavaria’s citizens.Bavaria toldCompuServe to remove theporn fromits servers,or its executiveswouldbepunished.

CompuServe at first objected that there was nothing it could do—save removing the porn from every server, everywhere in the world. That didn’t trouble the Germans much, but it did trouble CompuServe. So in January 1995,CompuServeannounceda technical fix:Rather thanblockingaccess to the USENET newsgroups that the Bavarians had complained about for all members of CompuServe, CompuServe had devised a technology to filter content on a country-by-country basis.1

To make that fix work, CompuServe had to begin to reckon who a user was, what they were doing, and where they were doing it. Technology could give them access to the data that needed reckoning.And with that shift, the futurewas set.Anobvious response toaproblemof regulabilitywouldbegin to repeat itself.

CompuServe,of course,wasnot the Internet.But its response suggests the pattern that the Internetwill follow.In thisChapter, Imap justhowthe Inter- net can effectively be made to run (in this respect at least) like CompuServe.

WHO DID WHAT, WHERE?

Toregulate, the stateneedsaway toknowthewho, in“Whodidwhat,where?” To see how the Net will show the state “who,” we need to think a bit more carefully abouthow“identification”works ingeneral,andhowitmightwork on the Internet.

Identity and Authentication: Real Space

Tomakesenseof the technologiesweuse to identifywhosomeone is,consider the relationship among three familiar ideas—(1)“identity,” (2)“authentica- tion,” and (3)“credential.”

By“identity” I mean something more than just who you are. I mean as well your“attributes,”or more broadly, all the facts about you (or a corpora- tion,ora thing) thatare true.Your identity, in this sense, includesyourname, your sex,whereyou live,whatyoureducation is,yourdriver’s licensenumber, your social securitynumber,yourpurchasesonAmazon.com,whetheryou’re a lawyer—and so on.

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These attributes are known by others when they are communicated. In real space, some are communicated automatically: for most, sex, skin color, height, age range, and whether you have a good smile get transmitted auto- matically. Other attributes can’t be known unless they are revealed either by you, or by someone else: your GPA in high school, your favorite color, your social securitynumber,your lastpurchaseonAmazon,whetheryou’vepassed a bar exam.

Just because an attribute has been asserted, however, does not mean the attribute is believed. (“Youpassed thebar?!”)Ratherbelief will oftendepend upon a process of “authentication.” In general, we “authenticate” when we want to become more confident about the truth about some asserted claim thanappearson its face.“I’mmarried,”yousay.“Showmethe ring,”she says. The first statement is anassertionaboutanattributeyouclaimyouhave.The second is a demand for authentication. We could imagine (in a comedy at least) thatdemandcontinuing.“Ohcomeon,that’snotaweddingring.Show me your marriage license.” At some point, the demands stop, either when enough confidence has been achieved, or when the inquiry has just become too weird.

Sometimes this process of authentication is relatively automatic. Some attributes, that is, are relatively self-authenticating:You say you’re a woman; I’m likely to believe it when I see you. You say you’re a native speaker; I’m likely to believe it once I speak with you.Of course, in both cases, I could be fooled. Thus, if my life depended upon it, I might take other steps to be absolutely confidentof whatotherwiseappearsplain.But formostpurposes, withmost familiar sortsof attributes,we learnhowtoevaluatewithoutmuch more than our own individual judgment.

Some attributes, however, cannot be self-authenticating. You say you’re licensed to fly an airplane; I want to see the license.You say you’re a member of theCaliforniabar; Iwant to seeyourcertificate.Yousayyou’requalified to perform open heart surgery on my father; I want to see things that make me confident that your claim is true. Once again, these authenticating “things” couldbe forged,andmyconfidencecouldbeunjustified.But if I’mcareful to match theprocess forauthenticationwith the levelof confidence that Ineed, I’mbehavingquite rationally.Andmostof uscanusuallygetbywithouta ter- ribly complicated process of authentication.

One important tool sometimesused in thisprocessof authentication is a credential.By“credential,”Imeanastandardizeddevice forauthenticating(to some level of confidence) anassertionmade.Adriver’s license is a credential in this sense. Itspurpose is toauthenticate the statusof adriver.We’regener- ally familiar with the form of such licenses; that gives us some confidence

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thatwe’ll beable todeterminewhetheraparticular license isvalid.Apassport is also a credential in this sense. Its purpose is to establish the citizenship of the person it identifies, and it identifies a person through relatively self- authenticating attributes. Once again, we are familiar with the form of this credential,andthatgivesusarelativelyhigh levelof confidenceabout the facts asserted in that passport.

Obviously, some credentials are better than others. Some are architected to give more confidence than others; some are more efficient at delivering their confidence than others. But we select among the credentials available depending upon the level of confidence that we need.

So takeanobviousexample tobring thesepoints together: Imagineyou’re a bank teller. Someone appears in front of you and declares that she is the owner of account # 654–543231. She says she would like to withdraw all the money from that account.

In the sense I’ve described, this someone (call her Ms. X) has asserted a fact abouther identity—that she is theownerof account#654–543231.Your jobnowis toauthenticate thatassertion.Soyoupulluponyourcomputer the records for theaccount,andyoudiscover that there’s lotsof money in it.Now your desire to be confident about the authentication you make is even stronger. You ask Ms. X her name; that name matches the name on the account. That gives you some confidence. You ask Ms. X for two forms of identification.Bothmatch toMs.X.Nowyouhaveevenmoreconfidence.You askMs.X tosignawithdrawal slip.The signatures seemtomatch;morecon- fidencestill.Finally,younote in therecord that theaccountwasestablishedby your manager.You ask her whether she knows Ms. X. She confirms that she does,andthat the“Ms.X”standingat thecounter is indeedMs.X.Nowyou’re sufficiently confident to turn over the money.

Notice that throughout thisprocess,you’veused technologies tohelpyou authenticate theattributeassertedbyMs.X tobe true.Yourcomputer linksa name to an account number.A driver’s license or passport ties a picture to a name.Thecomputerkeepsacopyof a signature.Theseareall technologies to increase confidence.

Andnotice too thatwecould imagineevenbetter technologies to increase this confidence. Credit cards, for example, were developed at a time when merelypossessing thecredit cardauthenticated itsuse.Thatdesigncreates the incentive to steal a credit card.ATM cards are different—in addition to pos- session, ATM cards require a password. That design reduces the value of stolen cards. But some write their passwords on their ATM cards, or keep them in their wallets with their ATMs. This means the risk from theft is not totally removed.But that riskcouldbe further reducedbyother technologies

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of authentication. For example, certain biometric technologies, such as thumbprint readers or eye scans, would increase the confidence that the holder of a card was an authorized user. (Though these technologies them- selves can create their own risks:At a conference I heard a vendor describing a new technology for identifying someone based upon his handprint; a par- ticipant in the conference asked whether the hand had to be alive for the authentication to work. The vendor went very pale. After a moment, he replied,“I guess not.”)

We are constantly negotiating these processes of authentication in real life,and in thisprocess,better technologiesandbetter credentials enablemore distant authentication. In a small town, in a quieter time, credentials were not necessary.You were known by your face, and your face carried with it a reference (held in the common knowledge of the community) about your character. But as life becomes more fluid, social institutions depend upon other technologies tobuildconfidencearound important identity assertions. Credentials thus become an unavoidable tool for securing such authentica- tion.

If technologiesof authenticationcanbebetterorworse, then,obviously, many have an interest in these technologies becomingbetter.Weeach would bebetteroff if wecouldmoreeasilyandconfidentlyauthenticatecertain facts aboutus.Commerce, too,wouldcertainlybebetteroff withbetter technolo- gies of authentication.Poor technologies begat fraud; fraud is an unproduc- tive cost for business. If better technology could eliminate that cost, then prices could be lower and profits possibly higher.

And finally,governmentsbenefit frombetter technologiesof authentica- tion. If it is simple toauthenticateyourage, thenrules thatare triggeredbased upon age are more easily enforced (drinking ages, or limits on cigarettes). And if it is simple to authenticate who you are, then it will be easier for the government to trace who did what.

Fundamentally, the regulabilityof life in real-spacedependsuponcertain architecturesof authentication.The fact thatwitnessescan identifywhocom- mitted a crime, either because they know the person or because of self- authenticating features such as“he was a white male, six feet tall,” enhances theabilityof the state toregulateagainst that crime.If criminalswere invisible orwitnesseshadnomemory,crimewould increase.The fact that fingerprints are hard to change and are now automatically traced to convicted felons increases the likelihood that felons will be caught again. Relying on a more changeable physical characteristic would reduce the ability of the police to trackrepeatoffenders.The fact that carshave licenseplates andare registered by their owners increases the likelihood that a hit-and-run driver will be

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caught.Without licenses,andwithout systemsregisteringowners, itwouldbe extremely difficult to track car-related crime. In all these cases, and in many more, technologies of authentication of real-space life make regulating that life possible.

These three separate interests thereforepoint toacommoninterest.That’s not to say that every technologyof authenticationmeets that commoninter- est, nor is it to say that these interests will be enough to facilitate more effi- cient authentication. But it does mean that we can see which way these interests push.Better authentication can benefit everyone.

Identity and Authentication: Cyberspace

Identity and authentication in cyberspace and real space are in theory the same. In practice they are quite different.To see that difference,however,we need to see more about the technical detail of how the Net is built.

As I’ve already said, the Internet is built fromasuiteof protocols referred to collectively as“TCP/IP.”At its core, theTCP/IP suite includes protocols for exchangingpacketsofdatabetweentwomachines“on”theNet.2 Brutally sim- plified, the systemtakes abunchof data (a file, for example), chops it up into packets, and slaps on the address to which the packet is to be sent and the address from which it is sent. The addresses are called Internet Protocol addresses,andthey look like this:128.34.35.204.Onceproperlyaddressed, the packets are then sent across the Internet to their intended destination. Machines along theway (“routers”) lookat theaddress towhich thepacket is sent, and depending upon an (increasingly complicated) algorithm, the machines decide to which machine the packet should be sent next.A packet could make many “hops” between its start and its end. But as the network becomes fasterandmorerobust, thosemanyhopsseemalmost instantaneous.

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In the terms I’vedescribed, therearemanyattributes thatmightbeasso- ciated with any packet of data sent across the network. For example, the packetmightcomefromane-mailwrittenbyAlGore.Thatmeans thee-mail is written by a former vice president of the United States, by a man knowl- edgeableaboutglobalwarming,byamanover theageof 50,bya tallman,by anAmericancitizen,bya formermemberof theUnitedStatesSenate,andso on. Imagine also that the e-mail was written while Al Gore was in Germany, and that it is about negotiations for climate control. The identity of that packet of information might be said to include all these attributes.

But thee-mail itself authenticatesnoneof these facts.Thee-mailmaysay it’s fromAlGore,but theTCP/IPprotocol alonegivesusnoway tobe sure. It mayhavebeenwrittenwhileGorewas inGermany,buthe couldhave sent it through a server in Washington.And of course, while the system eventually will figure out that the packet is part of an e-mail, the information traveling across TCP/IP itself does not contain anything that would indicate what the content was. The protocol thus doesn’t authenticate who sent the packet, where they sent it from,and what the packet is.All it purports to assert is an IPaddress towhich thepacket is tobe sent,andanIPaddress fromwhich the packet comes.Fromtheperspectiveof thenetwork, thisother information is unnecessary surplus. Like a daydreaming postal worker, the network simply moves the data and leaves its interpretation to the applications at either end.

Thisminimalismin the Internet’sdesignwasnotanaccident. It reflects a decision about how best to design a network to perform a wide range over verydifferent functions.Rather thanbuild into thisnetworkacomplex setof functionality thought to be needed by every single application, this network philosophypushescomplexity to theedgeof thenetwork—totheapplications that run on the network, rather than the network’s core. The core is kept as simple as possible.Thus if authentication about who is using the network is necessary, that functionality should be performed by an application con- nected to the network, not by the network itself. Or if content needs to be encrypted, that functionality should be performed by an application con- nected to the network,not by the network itself.

This design principle was named by network architects Jerome Saltzer, DavidClark,andDavidReedas the end-to-endprinciple.3 It hasbeena core principle of the Internet’s architecture, and, in my view, one of the most important reasons that the Internetproducedthe innovationandgrowth that ithasenjoyed.But its consequences forpurposesof identificationandauthen- ticationmakebothextremelydifficultwith thebasicprotocolsof the Internet alone. It is as if you were in a carnival funhouse with the lights dimmed to darkness and voices coming from around you, but from people you do not

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know and from places you cannot identify. The system knows that there are entities out there interacting with it, but it knows nothing about who those entitiesare.While inreal space—andhere is the importantpoint—anonymity has to be created, in cyberspace anonymity is the given.

Identity and Authentication: Regulability

This difference in the architectures of real space and cyberspace makes a big difference in theregulabilityof behavior ineach.Theabsenceof relatively self- authenticating facts in cyberspace makes it extremely difficult to regulate behavior there. If we could all walk around as “The Invisible Man” in real space, the samewouldbe trueabout real spaceaswell.Thatwe’renotcapable of becoming invisible in real space (orat leastnot easily) is an important rea- son that regulation can work.

Thus, for example, if a state wants to control children’s access to “inde- cent” speechon the Internet, theoriginal Internet architectureprovides little help. The state can say to websites,“don’t let kids see porn.”But the website operators can’t know—from the data provided by the TCP/IP protocols at least—whether theentityaccessing itswebpage isakidoranadult.That’sdif- ferent, again, fromreal space. If a kidwalks into aporn shopwearingamus- tacheandstilts,his effort toconceal is likely to fail.Theattribute“beingakid” is asserted in real space,even if efforts toconceal it arepossible.But incyber- space, there’snoneed toconceal,because the facts youmightwant toconceal about your identity (i.e., that you’re a kid) are not asserted anyway.

All this is true, at least, under the basic Internet architecture. But as the last ten years have made clear,none of this is true by necessity.To the extent that the lack of efficient technologies for authenticating facts about individ- ualsmakes itharder to regulatebehavior, therearearchitectures that couldbe layeredonto theTCP/IPprotocol to create efficient authentication.We’re far enough into the history of the Internet to see what these technologies could look like.We’re far enough into this history to see that the trend toward this authentication is unstoppable. The only question is whether we will build into this system of authentication the kinds of protections for privacy and autonomy that are needed.

Architectures of Identification

Mostwhouse the Internethavenoreal senseaboutwhether theirbehavior is monitored, or traceable. Instead, the experience of the Net suggests anonymity. Wikipedia doesn’t say “Welcome Back, Larry”when I surf to its

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site to lookupanentry,andneitherdoesGoogle.Most, I expect, take this lack of acknowledgement to mean that no one is noticing.

But appearances arequitedeceiving. In fact,as the Internethasmatured, the technologies for linking behavior with an identity have increased dra- matically.You can still take steps to assure anonymity on the Net, and many dependuponthatability todogood(humanrightsworkers inBurma)orevil (coordinating terroristplots).But toachieve that anonymity takes effort.For most of us, our use of the Internet has been made at least traceable in ways most of us would never even consider possible.

Consider first the traceability resulting from the basic protocols of the Internet—TCP/IP.Whenever you make a request to view a page on theWeb, the web server needs to know where to sent the packets of data that will appearasawebpage inyourbrowser.Yourcomputer thus tells thewebserver where you are—in IP space at least—by revealing an IP address.

As I’ve already described, the IP address itself doesn’t reveal anything about who you are, or where in physical space you come from. But it does enableacertainkindof trace. If (1)youhavegottenaccess to thewebthrough anInternetServiceProvider (ISP) that assignsyouanIPaddresswhileyou’re on the Internet and (2) that ISP keeps the logs of that assignment, then it’s perfectly possible to trace your surfing back to you.

How? Well, imagine you’re angry at your boss.You think she’s a blowhard who

is driving the company into bankruptcy. After months of frustration, you decide to go public. Not“public”as in a press conference, but public as in a posting to an online forum within which your company is being discussed.

You know you’d get in lots of trouble if your criticism were tied back to you.Soyoutake steps tobe“anonymous”onthe forum.Maybeyoucreatean account in the forumundera fictitiousname,andthat fictitiousnamemakes you feel safe.Yourbossmaysee thenastypost,buteven if she succeeds inget- ting the forumhost to revealwhat yousaidwhenyousignedup,all that stuff was bogus.Your secret, you believe, is safe.

Wrong. In addition to the identification that your username might, or might not, provide, if the forum is on the web, then it knows the IP address fromwhichyoumadeyourpost.With that IPaddress,andthe timeyoumade yourpost,using“a reverseDNSlook-up,”4 it is simple to identify the Internet ServiceProvider thatgaveyouaccess to the Internet.And increasingly, it is rel- atively simple for the Internet Service Provider to check its records to reveal whichaccountwasusing that IPaddress at that specified time.Thus, the ISP could (if required) say that itwas your account thatwasusing the IPaddress that posted the nasty message about your boss. Try as you will to deny it

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(“Hey,on the Internet,nooneknowsyou’readog!”), I’dadviseyoutogiveup quickly. They’ve got you.You’ve been trapped by the Net. Dog or no, you’re definitely in the doghouse.

Now again, what made this tracing possible? No plan by the NSA. No strategyof Microsoft. Instead,whatmade this tracingpossiblewasaby-prod- uctof thearchitectureof theWebandthearchitectureof ISPschargingaccess to the Web. The Web must know an IP address; ISPs require identification before they assign an IP address to a customer. So long as the log records of the ISP are kept, the transaction is traceable. Bottom line: If you want anonymity,use a pay phone!

This traceability in the Internet raised some important concerns at the beginningof 2006.Googleannounced itwould fightademandbythegovern- ment to produce one million sample searches. (MSN and Yahoo! had both compliedwith the samerequest.)That requestwasmadeaspartof an inves- tigation the government was conducting to support its defense of a statute designed toblockkids fromporn.Andthoughthe requestpromised thedata would be used for no other purpose, it raised deep concerns in the Internet community.Depending upon the data that Google kept, the request showed in principle that it was possible to trace legally troubling searches back to individual IP addresses (and to individualswith Google accounts).Thus, for example, if your Internet address at work is a fixed-IP address, then every search you’ve ever made from work is at least possibly kept by Google.Does that make you concerned? And assume for the moment you are not a terrorist:Would you still be concerned?

A link back to an IP address,however,only facilitates tracing, and again, even then not perfect traceability. ISPs don’t keep data for long (ordinarily); some don’t even keep assignment records at all. And if you’ve accessed the Internet at an Internet café, then there’s no reason to believe anything could be tracedback toyou.So still, the Internetprovides at least someanonymity.

But IP tracing isn’t theonly technologyof identification thathasbeen lay- ered onto the Internet. A much more pervasive technology was developed early in the history of theWeb to make the web more valuable to commerce and its customers.This is the technology referred to as“cookies.”

When the World Wide Web was first deployed, the protocol simply enabled people to view content that had been marked up in a special pro- gramming language. This language (HTML) made it easy to link to other pages,and itmade it simple toapplybasic formatting to thecontent (bold,or italics, for example).

But theone thing theprotocoldidn’t enablewas a simpleway for aweb- site to know which machines had accessed it. The protocol was “state-less.”

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Whenawebserver receiveda request to serveawebpage, itdidn’tknowany- thing about the state of the requester before that request was made.5

From the perspective of privacy, this sounds like a great feature for the Web.Whyshouldawebsiteknowanythingaboutmeif Igo to that site toview certain content? You don’t have to be a criminal to appreciate the value in anonymous browsing. Imagine libraries kept records of every time you opened a book at the library, even for just a second.

Yet from the perspective of commerce, this“feature”of the originalWeb is plainly a bug, and not because commercial sites necessarily want to know everything there is to know about you. Instead, the problem is much more pragmatic.SayyougotoAmazon.comandindicateyouwant tobuy20copies of my latestbook.(Try it. It’s fun.)Nowyour“shoppingcart”has20copiesof mybook.You thenclickon the icon to checkout, andyounotice your shop- pingcart is empty.Why?Well because,asoriginally architected, theWebhad no easy way to recognize that you were the same entity that just ordered 20 books.Orputdifferently, thewebserverwouldsimply forgetyou.TheWebas originally built had no way to remember you from one page to another.And thus, theWeb as originally built would not be of much use to commerce.

But as I’ve said again and again, the way the Web was is not the way the Webhadtobe.Andso thosewhowerebuilding the infrastructureof theWeb quicklybegan to think throughhowthewebcouldbe“improved”tomake it easy forcommerce tohappen.“Cookies”were the solution.In1994,Netscape introduced a protocol to make it possible for a web server to deposit a small bitof dataonyourcomputerwhenyouaccessed that server.That smallbitof data—the “cookie”—made it possible for the server to recognize you when you traveled to a different page. Of course, there are lots of other concerns about what that cookie might enable.We’ll get to those in the chapter about privacy.Thepoint that’s importanthere,however, isnot thedangers this tech- nology creates.Thepoint is thepotential andhowthatpotentialwasbuilt.A small change in theprotocol for client-server interactionnowmakes itpossi- ble for websites to monitor and track those who use the site.

This is a small step towardauthenticated identity. It’s far fromthat,but it is a step toward it.Yourcomputer isn’t you(yet).Butcookiesmake itpossible for the computer to authenticate that it is the samemachine that was access- ingawebsite amomentbefore.And it isuponthis technology that thewhole of web commerce initially was built. Servers could now “know” that this machine is the samemachine thatwasherebefore.Andfromthatknowledge, they could build a great deal of value.

Now again, strictly speaking, cookies are nothing more than a tracing technology. They make it simple to trace a machine across web pages. That

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tracing doesn’t necessarily reveal any information about the user. Just as we could follow a trail of cookie crumbs in real space to an empty room, a web server could follow a trail of “mouse droppings” from the first entry on the site until the user leaves. In both cases, nothing is necessarily revealed about the user.

But sometimes something important is revealedabout theuserbyassoci- ationwithdata storedelsewhere.Forexample, imagineyouentera site,and it asksyoutorevealyourname,your telephonenumber,andyoure-mail address as a condition of entering a contest.You trust the website, and do that, and then you leave the website. The next day, you come back, and you browse through a number of pages on that website. In this interaction, of course, you’ve revealed nothing. But if a cookie was deposited on your machine throughyourbrowser (andyouhavenot takensteps toremove it), thenwhen youreturn to the site, thewebsiteagain“knows”all these facts aboutyou.The cookie traces your machine, and this trace links back to a place where you provided information themachinewould not otherwise know.

The traceabilityof IPaddresses andcookies is thedefaulton the Internet now.Again, steps canbe taken toavoid this traceability,but thevastmajority of usdon’t take them.Fortunately, for society and formostof us,whatwedo on the Net doesn’t really concern anyone. But if it did concern someone, it wouldn’t be hard to track us down. We are a people who leave our “mouse droppings”everywhere.

This default traceability, however, is not enough for some. They require somethingmore.ThatwasHarvard’s view,as Inoted in thepreviouschapter. That is also the view of just about all private networks today. A variety of technologies have developed that enable stronger authentication by those whouse theNet. Iwill describe twoof these technologies in this section.But it is the secondof these twothatwill, inmyview,prove tobe themost impor- tant.

The first of these technologies is the Single Sign-on (SSO) technology. This technologyallows someone to“sign-on”toanetworkonce,and thenget access to a wide range of resources on that network without needing to authenticate again. Think of it as a badge you wear at your place of work. Depending upon what the badge says (“visitor”or“researcher”) you get dif- ferent access to different parts of the building.And like a badge at a place of work,youget thecredentialbygivingupotherdata.Yougive the receptionist an ID;hegivesyouabadge;youwear thatbadgewhereveryougowhileat the business.

The most commonly deployed SSO is a system called Kerberos. But there are many different SSOs out there—Microsoft’s Passport system is an

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example—andthere is a strongpushtobuild federatedSSOs for linkingmany different sites on the Internet. Thus, for example, in a federated system, I mightauthenticatemyself tomyuniversity,but thenIcouldmoveacross any domain within the federation without authenticating again. The big advan- tage in this architecture is that I can authenticate to the institution I trust without spreading lots of data about myself to institutions I don’t trust.

SSOshavebeenvery important inbuilding identity into the Internet.But a secondtechnology, Ibelieve,will becomethemost important tool for iden- tification in thenext tenyears.This isbecause this alternative respects impor- tant architectural featuresof the Internet,andbecause thedemand forbetter technologies of identification will continue to be strong.Forget the hassle of typingyournameandaddress at every site youwant tobuy something from. Youonlyneedto thinkabout theextraordinarygrowth in identity theft torec- ognize there are many who would be eager to see something better come along.

Tounderstand this secondsystem,think first abouthowcredentialswork in real space.6 You’ve got a wallet. In it is likely to be a driver’s license, some credit cards,ahealth insurancecard,an IDforwhereyouwork,and, if you’re lucky,somemoney.Eachof thesecardscanbeused toauthenticate somefact aboutyou—again,withverydifferent levelsof confidence.Thedriver’s license has a picture and a list of physical characteristics. That’s enough for a wine store, but not enough for the NSA. The credit card has your signature.Ven- dors are supposed to use that data to authenticate that the person who signs thebill is theownerof the card. If thevendorbecomes suspicious, shemight demand that you show an ID as well.

Notice thecritical featuresof this“wallet”architecture.First, thesecreden- tials are issuedbydifferententities.Second,dependingupontheir technology, theyofferdifferent levelsof confidence.Third,I’mfree touse thesecredentials in ways never originally planned or intended by the issuer of the credential. The Department of Motor Vehicles never coordinated with Visa to enable driver’s licenses to be used to authenticate the holder of a credit card. But once the one was prevalent, the other could use it. And fourth, nothing requires that I showallmycardswhenIcanuse justone.That is, to showmy driver’s license, Idon’t alsorevealmyhealth insurancecard.Or tousemyVisa, I don’t also have to reveal myAmerican Express card.

These same features are at the core of what may prove to be the most importantaddition to theeffectivearchitectureof the Internet since itsbirth. This is a project being led by Microsoft to essentially develop an Identity Metasystem—anew layerof the Internet, an IdentityLayer, thatwouldcom- plement the existing network layers to add a new kind of functionality.This

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Identity Layer is not Microsoft Passport,or someother Single Sign-On tech- nology. Instead it is aprotocol toenableakindof virtualwalletof credentials, with all the same attributes of the credentials in your wallet—except better. This virtual wallet will not only be more reliable than the wallet in your pocket, it will also give you the ability to control more precisely what data about you is revealed to those who demand data about you.

For example, in real space, your wallet can easily be stolen. If it’s stolen, then there’s a period of time when it’s relatively easy for the thief to use the cards tobuy stuff. In cyberspace, thesewallets arenot easily stolen. Indeed, if they’re architected well, it would be practically impossible to “steal” them. Remove the cards from their holder, and they become useless digital objects.

Oragain, in real space, if youwant toauthenticate thatyou’reover21and therefore canbuya six-packof beer, you showthe clerk yourdriver’s license. With that, he authenticates your age. But with that bit of data, he also gets access to your name, your address, and in some states, your social security number.Thoseotherbitsof data arenotnecessary forhimtoknow.In some contexts, depending on how creepy he is, these data are exactly the sort you don’t want him to know. But the inefficiencies of real-space technologies reveal these data.This loss of privacy is a cost of doing business.

Thevirtualwalletwouldbedifferent. If youneedtoauthenticateyourage, the technologycouldauthenticate that fact alone—indeed, it couldauthenti- cate simply thatyou’reover21,orover65,orunder18,without revealingany- thing more.Or if you need to authenticate your citizenship, that fact can be certified without revealing your name, or where you live, or your passport number. The technology is crafted to reveal just what you want it to reveal, withoutalso revealingother stuff. (Asoneof thekeyarchitects for thismeta- system,KimCameron,described it:“Tome,that’s thecenterof the system.”7) And,most importantly,using thepowerof cryptography, theprotocolmakes itpossible for theother side tobeconfidentabout the fact yourevealwithout requiring any more data.

The brilliance in this solution to the problems of identification is first that itmirrors thebasic architectureof the Internet.There’snocentral repos- itory fordata; there’snonetwork technology thateveryonemustadopt.There is insteadaplatformforbuilding identity technologies that encourages com- petitionamongdifferentprivacyandsecurityproviders—TCP/IP for identity. Microsoftmaybe leading theproject,but anyonecanbuild for thisprotocol. Nothing ties the protocol to theWindows operating system.Or to any other specific vendor. As Cameron wisely puts it, “it can’t be owned by any one companyoranyonecountry . . .or justhave the technologystampof anyone engineer.”8

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The Identity Layer is infrastructure for the Internet. It gives value (and raises concerns) to many beyond Microsoft. But though Microsoft’s work is an important gift to the Internet, the Identity Layer is not altruism. “Microsoft’s strategy is based on web services,” Cameron described to me. “Web services are impossible without identity.”9 There is important public valuehere,butprivate interest isdriving thedeploymentof thispublicvalue.

The Identity Layer would benefit individuals, businesses, and the gov- ernment, but each differently. Individuals could more easily protect them- selves from identity theft;10 if you get an e-mail from PayPal demanding you updateyouraccount,you’ll knowwhether thewebsite is actuallyPayPal.Or if you want to protect yourself against spam, you could block all e-mail that doesn’t come from an authenticated server. In either case, the technology is increasing confidence about the Internet. And the harms that come from a lack of confidence—mainly fraud—would therefore be reduced.

Commerce toowouldbenefit fromthis formof technology.It toobenefits from the reduction of fraud. And it too would benefit from a more secure infrastructure for conducting online transactions.

And finally, the government would benefit from this infrastructure of trust. If there were a simple way to demand that people authenticate facts about themselves, itwouldbeeasier for thegovernment to insist that theydo so.If itwereeasier tohavehighconfidence that thepersononthewebsitewas who he said he was, then it would be cheaper to deliver certain information across the web.

Butwhile individuals,commerce,andgovernmentwouldallbenefit from this sort of technology, there is also something that each could lose.

Individuals right now can be effectively anonymous on the Net.A plat- form for authenticated identity would make anonymity much harder. We might imagine, forexample,anormdeveloping toblockaccess toawebsiteby anyonenot carryinga token that at leastmade itpossible to traceback to the user—akindof driver’s license for the Internet.Thatnorm,plus this technol- ogy, would make anonymous speech extremely difficult.

Commercecouldalso lose something fromthisdesign.To theextent that there are simple ways to authenticate that I am the authorized user of this credit card, for example, it’s lessnecessary forwebsites todemandall sortsof data about me—my address, my telephone numbers, and in one case I recently encountered, my birthday. That fact could build a norm against revealing extraneous data.But that data may be valuable to business beyond simply confirming a charge.

And governments, too, may lose something from this architecture of identification. Just as commercemay lose theextradata that individualsneed

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to reveal to authenticate themselves, so too will the government lose that. It may feel that such data is necessary for some other purpose,but gathering it would become more difficult.

Eachof thesebenefits andcosts canbeadjusted,dependinguponhowthe technology is implemented.And as the resulting mix of privacy and security is the product of competition and an equilibrium between individuals and businesses, there’s no way up front to predict what it will be.

But for our purposes, the only important fact to notice is that this infra- structure could effectively answer the first question that regulability requires answering:Who didwhatwhere?Withan infrastructureenablingcheap iden- tification wherever you are, the frequency of unidentified activity falls dra- matically.

{TXB2} This final example of an identification technology throws into relief an important fact about encryption technology. The Identity Layer depends upon cryptography. It thus demonstrates the sense in which cryptography is Janus-faced.As Stewart Baker and Paul Hurst put it, cryptography“surely is thebestof technologies and theworstof technologies. Itwill stopcrimesand it will create new crimes. It will undermine dictatorships, and it will drive them to new excesses. It will make us all anonymous, and it will track our every transaction.”11

Cryptographycanbeall these things,bothgoodandbad,becauseencryp- tioncanserve twofundamentallydifferent ends. In its“confidentiality”func- tion it can be “used to keep communications secret.” In its “identification” function it can be “used to provide forgery-proof digital identities.”12 It enables freedom from regulation (as it enhances confidentiality), but it can also enable more efficient regulation (as it enhances identification).13

Its traditional use is secrets. Encrypt a message, and only those with the properkey canopenandread it.This typeof encryptionhasbeenaroundas longas language itself.Butuntil themid-1970s it suffered froman important weakness: the same key that was used to encrypt a message was also used to decrypt it. So if you lost that key, all the messages hidden with that key were also renderedvulnerable. If a largenumberof messageswere encryptedwith the same key, losing the key compromised the whole archive of secrets pro- tected by the key.This risk was significant.You always had to“transport”the key needed to unlock the message, and inherent in that transport was the risk that the key would be lost.

In themid-1970s,however, abreakthrough in encryption techniquewas announced by two computer scientists, Whitfield Diffie and Martin Hell- man.14 Rather than relying on a single key, the Diffie-Hellman system used

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two keys—one public, the other private.What is encrypted with one can be decrypted only with the other.Even with one key there is no way to infer the other.

Thisdiscoverywas theclue toanarchitecture that couldbuildanextraor- dinary range of confidence into any network, whether or not the physical network itself was secure.15 And again, that confidence could both make me confident that my secrets won’t be revealed and make me confident that the personusingmysite justnowisyou.The technology thereforeworks tokeep secrets, but it also makes it harder to keep secrets. It works to make stuff less regulable, and more regulable.

In the Internet’s first life, encryption technology was on the side of pri- vacy. Its most common use was to keep information secret.But in the Inter- net’snext life,encryption technology’smost important rolewill be inmaking the Net more regulable.As an Identity Layer gets built into the Net, the easy ability to demand some form of identity as a condition to accessing the resources of the Net increases. As that ability increases, its prevalence will increaseaswell. Indeed,asShawnHelmsdescribes, thenextgenerationof the Internet Protocol—IPv6—“marks each packet with an encryption ‘key’ that cannotbealteredor forged, thus securely identifying thepacket’sorigin.This authentication functioncan identify every senderandreceiverof information over the Internet, thus making it nearly impossible for people to remain anonymous on the Internet.”16

And even if not impossible, sufficiently difficult for the vast majority of us.Ourpacketswillbemarked.We—orsomethingaboutus—willbeknown.

WHO DID WHAT, WHERE?

Regulability also depends upon knowing the “what” in “who did what, where?”Butagain, the Internetasoriginallydesigneddidn’thelp theregulator here either. If the Internet protocol simply cuts up data into packets and stamps an address on them, then nothing in the basic protocol would tell anyone looking at the packet what the packet was for.

For example, imagineyou’re a telephonecompanyprovidingbroadband Internet access (DSL) across your telephone lines. Some smart innovator developsVoice-over-IP (VOIP)—anapplication thatmakes itpossible touse the Internet to make telephone calls.You, the phone company, aren’t happy about that,becausenowpeopleusingyourDSLservice canmakeunmetered telephone calls.That freedom cuts into your profit.

Is there anything you can do about this? Relying upon just the Internet protocols, theanswer isno.The“packets”of data that contain the simulated-

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telephonecalls look just likeanypacketof data.Theydon’t come labeledwith VOIP or any other consistent moniker. Instead, packets are simply marked with addresses. They are not marked with explanations of what is going on with each.

But as my example is meant to suggest, we can easily understand why somewouldbeverykeen tounderstandwhatpackets are flowingacross their network,andnot just foranti-competitivepurposes.Networkadministrators trying todecidewhether toaddnewcapacityneed toknowwhat theexisting capacity is being used for. Businesses keen to avoid their employees wasting time with sports or porn have a strong interest in knowing just what their employees are doing. Universities trying to avoid viruses or malware being installedonnetworkcomputersneed toknowwhatkindof packets are flow- ing onto their network. In all these cases, there’s an obvious and valid will to identify what packets are flowing on the network. And as they say, where there’s a will, there’s a way.

Theway follows thesametechniquedescribed in thesectionabove.Again, the TCP/IP protocol doesn’t include technology for identifying the content carried in TCP/IP packets.But it also doesn’t interfere with applications that might examine TCP/IP packets and report what those packets are about.

So, for example, consider a package produced by Ipanema Technologies. This technology enables a network owner to inspect the packets traveling on its network.As its webpage promises,

The IpanemaSystems“deep”layer7packet inspectionautomatically recognizes

all criticalbusinessandrecreational application flowsrunningover thenetwork.

Real-timegraphical interfacesaswell asminute-by-minute reports areavailable

to rapidly discover newly deployed applications.17

Using the data gathered by this technology, the system generates reports about the applications being used in the network, and who’s using them. These technologies make it possible to control network use, either to econo- mizeonbandwidthcosts,or toblockuses that thenetworkownerdoesn’tper- mit.

Anotherexampleof thiskindof contentcontrol is aproductcalled“iPro- tectYou.”18 This product also scans packets on a network, but this control is implemented at the level of a particular machine. Parents load this software onacomputer; the software thenmonitorsallnetwork trafficwith that com- puter. As the company describes, the program can then“filter harmful web- sites and newsgroups; restrict Internet time to a predetermined schedule; decidewhichprogramscanhave Internetaccess; limit theamountof data that

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can be sent or received to/from your computer; block e-mails, online chats, instantmessagesandP2Pconnectionscontaining inappropriatewords; [and produce]detailed Internetactivity logs.”Onceagain, this is anapplicationthat sitson topof thenetworkandwatches. It intervenes innetworkactivitywhen it identifies the activity as the kind the administrator wants to control.

Inadditionto these technologiesof control,programmershavedeveloped awide rangeof programs tomonitornetworks.Perhaps thedominantappli- cation in this context is called“nmap”—a program

fornetworkexplorationorsecurityauditing . . . designedtorapidlyscanlargenet-

works. . . .Nmap uses raw IP packets in novel ways to determine what hosts are

available on the network, what services (application name and version) those

hosts are offering, what operating systems (and OS versions) they are running,

what typeofpacket filters/firewallsare inuse,anddozensofothercharacteristics.19

This software is“free software,”meaning the sourcecode is available,and any modifications of the source code must be made available as well. These conditions essentially guarantee that the code necessary to engage in this monitoring will always be available.

Finally, coders have developed “packet filtering” technology, which, as one popular example describes, “is the selective passing or blocking of data packets as theypass throughanetwork interface. . . .Themostoftenusedcri- teria are source and destination address, source and destination port, and protocol.” This again is a technology that’s monitoring “what” is carried within packets, and decides what’s allowed based upon what it finds.

In eachof these cases, a layerof code complements theTCP/IPprotocol, togivenetworkadministrators somethingTCP/IPalonewouldnot—namely, knowledge about “what” is carried in the network packets. That knowledge increases the “regulability” of network use. If a company doesn’t want its employees using IM chat, then these technologies will enforce that rule—by blocking the packets containing IM chat. Or if a company wants to know which employees use sexually explicit speech in Internet communication, these technologieswill reveal that aswell.Again, there areplenty of perfectly respectable reasons why network administrators might want to exercise this regulatory authority—even if there are plenty of cases where such power wouldbeanabuse.Becauseof this legitimatedemand,softwareproducts like this are developed.

Now,of course, there are countermeasures that users can adopt to avoid just this sortof monitoring.Auserwhoencrypts thedatahe sendsacross the networkwill avoidany filteringonthebasisof keywords.Andthereareplenty

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of technologiesdesigned to“anonymize”behavioron theNet, soadministra- tors can’t easily know what an individual is doing on a network. But these countermeasures require a significant investment for a particular user to deploy—whether of time or money.The vast majority won’t bother, and the abilityof networkadministrators tomonitor content anduseof thenetwork will be preserved.

Thus,aswithchanges that increasedtheability to identify“who”someone iswhoisusinganetwork,here too,private interestsprovideasufficient incen- tive todeveloptechnologies thatmake it increasinglyeasy tosay“what”some- one is doing who is using a network.A gap in the knowledge provided by the plainvanilla Internet is thuspluggedbytheseprivatelydevelopedtechnologies.

WHO DID WHAT, WHERE?

Finally, as long as different jurisdictions impose different requirements, the thirdbitof datanecessary toregulateefficiently isknowingwhere the targetof regulationis.If France forbids thesellingofNaziparaphernalia,but theUnited Statesdoesnot,thenawebsitewantingtorespect the lawsofFrancemustknow somethingaboutwhere thepersonaccessing the Internet is coming from.

Butonceagain, the Internetprotocolsdidn’tprovide thatdata.Andthus, it would be extremely difficult to regulate or zone access to content on the basis of geography.

The original Internet made such regulation extremely difficult.As origi- nally deployed, as one court put it:

The Internet is wholly insensitive to geographic distinctions. In almost every

case,users of the Internet neither know nor care about the physical location of

the Internet resources they access. Internet protocols were designed to ignore

rather than document geographic location; while computers on the network

do have“addresses,” they are logical addresses on the network rather than geo-

graphic addresses in real space. The majority of Internet addresses contain no

geographic clues and, even where an Internet address provides such a clue, it

may be misleading.20

But once again, commerce has come to the rescue of regulability. There areobvious reasonswhy itwoulduseful tobeable to identifywhere someone iswhen theyaccess somewebsite.Someof those reasonshave todowith reg- ulation—again,blockingNazimaterial fromtheFrench,orporn fromkids in Kansas.We’ll consider these reasons more extensively later in this book. For now,however, themost interestingreasonsare those tiedpurely tocommerce.

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And,again, thesecommercial reasonsare sufficient to induce thedevelopment of this technology.

Once again, the gap in the data necessary to identify someone’s location is the product of the way IP addresses are assigned. IP addresses are virtual addresses; theydon’t refer toaparticulargeographicplace.Theyrefer toa log- ical place on the network. Thus, two IP addresses in principle could be very close to each other in number, but very far from each other in geography. That’s not the way, for example, zip codes work. If your zip code is one digit from mine (e.g., 94115 vs.94116),we’re practically neighbors.

But this gap in data is simply the gap in data about where someone is deducible from his IP address. That means, while there’s no simple way to deduce from23.214.23.15 that someone is inCalifornia, it is certainlypossible togather thedatanecessary tomapwhere someone is,giventhe IPaddress.To do this, one needs to construct a table of IP addresses and geographic loca- tions, and then track both the ultimate IP address and the path along which apackethas traveled towhereyouare fromwhere itwas sent.Thuswhile the TCP/IP protocol can’t reveal where someone is directly, it can be used indi- rectly to reveal at least the origin or destination of an IP packet.

The commercial motivations for this knowledge are obvious. Jack Gold- smith and TimWu tell the story of a particularly famous entrepreneur,Cyril Houri, who was inspired to develop IP mapping technology. Sitting in his hotel in Paris one night, he accessed his e-mail account in the United States. His e-mail was hosted on a web server,but he noticed that the banner ads at the top of the website were advertising an American flower company. That gave him a (now obvious) idea: Why not build a tool to make it easy for a website toknowfromwhere it isbeingaccessed,so it canserve relevantads to those users?21

Houri’s idea has been copied by many.Geoselect, for example, is a com- pany that provides IP mapping services. Just browse to their webpage, and they’re 99 percent likely to be able to tell you automatically where you are browsing from.Using their services,youcanget ageographical report listing the locationof thepeoplewhovisit your site, andyoucanuse theirproducts toautomaticallyupdate log filesonyourwebserverwithgeographicdata.You canautomatically change thegreetingonyourwebsitedependinguponwhere the user comes from, and you can automatically redirect a user based upon her location.Allof this functionality is invisible to theuser.Allhe sees is aweb pageconstructedby tools thatknowsomething that theTCP/IPalonedoesn’t reveal—where someone is from.

So what commercial reasons do websites have for using such software? Onecompany,MaxMind,22 lists themajor reasonas credit card fraud: If your

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customercomes froma“highrisk IPaddress”—meaninga locationwhere it’s likely theperson isengaged incredit card fraud—thenMaxMind’s servicewill flag the transaction and direct that it have greater security verification.Max- Mindalsopromises theservicewillbevaluable for“targetedadvertising.”Using its product, a client can target a message based upon country, state,or city, as well as a“metropolitan code,”an area code, and connection speed of the user (noneed toadvertiseDVDdownloads toapersononadial-upconnection).

Here too there is an important and powerful open source application thatprovides the sameIPmapping functions.Hostip.infogiveswebsiteoper- ators—for free—the ability to“geolocate”the users of their site.23 This again means that thecore functionalityof IPmapping isnotheldexclusivelybycor- porations or a few individuals.Any application developer—including a gov- ernment—could incorporate the function into its applications. The knowledge and functionality is free.

Thus,again,oneof theoriginalgaps in thedatanecessary tomakebehav- ior regulable on the Internet—geographic identity—has been filled. But it has not been filled by government mandate or secret NSA operations (or so Ihope). Instead, thegaphasbeen filledbyacommercial interest inproviding thedata thenetwork itself didn’t.Technologynowlayersonto the Internet to produce the data the network needs.

But it is still possible to evade identification. Civil liberty activist Seth Finkelstein has testified to the relative ease with which one can evade this tracking.24 Yet as I will describe more below, even easily evaded tracking can beeffective tracking.Andwhentied to thearchitectures for identitydescribed above, this sort will become quite effective.

RESULTS

In the last chapter,wesawthat theunregulabilityof the Internetwasaproduct of design: that the failure of that network to identify who someone is, what they’re doing, and where they’re from meant that it would be particularly difficult toenforce rulesupon individualsusing thenetwork.Not impossible, but difficult. Not for all people, but for enough to matter. The Internet as it originallywasgaveeveryonea“Ringof Gyges,”theringwhich,asPlatoreports in The Republic, madeGyges the shepherd invisible.Thedilemmafor regula- tion in suchaworld is precisely the fearPlatohadabout this ring:With such a ring,“no man can be imagined to be of such an iron nature that he would stand fast in justice.”25

And if such a man did choose justice, even with the power of the ring, then “he would be thought by the lookers-on to be a most wretched idiot,

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although they would praise him to one another’s faces, and keep up appear- ances with one another from a fear that they too might suffer injustice.”

But these gaps in the Internet’s original design are not necessary.We can imagine networks that interact seamlessly with the Internet but which don’t have these “imperfections.” And, more importantly, we can see why there would be an important commercial interest in eliminating these gaps.

Yet you may still be skeptical. Even if most Internet activity is traceable using the technologies that I’ve described,you may still believe there are sig- nificantgaps. Indeed, theexplosionof spam,viruses, IDtheft,and the likeare strong testimony to the fact that there’s still a lot of unregulable behavior. Commerce acting alone has not yet eliminated these threats, to both com- merceandcivil life.For reasons I explore later in thisbook, it’snot evenclear commerce could.

But commerce is not the only actor here.Government is also an impor- tant ally,and the frameworkof regulability that commercehasbuilt couldbe built on again by government.

Government can, in other words,help commerce and help itself.How it does so is the subject of the chapter that follows.

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F I V E

r e g u l a t i n g c o d e

COMMERCE HAS DONE ITS PART—FOR COMMERCE, AND INDIRECTLY, FOR governments. Technologies that make commerce more efficient are also technologies that make regulation simpler. The one supports the other. There are ahostof technologiesnowthatmake it easier toknowwhosome- one is on the Net, what they’re doing, and where they’re doing it. These technologieswerebuilt tomakebusinesswork better.They make life on the Internet safer. But the by-product of these technologies is to make the Net more regulable.

More regulable.Notperfectly regulable.These tools alonedoagreatdeal. As Joel Reidenberg notes, they are already leading courts to recognize how behaviorontheNetcanbereached—andregulated.1 But theydon’t yet create the incentives to build regulability into the heart of the Net. That final step will require action by the government.2

When I wrote the first version of this book, I certainly expected that the governmentwouldeventually take these steps.Events since1999—including thebirthof Z-theorydescribedbelow—haveonly increasedmyconfidence.In the United States, the identification of “an enemy”—terrorism—has weak- ened the resolve to resist governmentaction tomakegovernmentmorepow- erful and regulation more effective.There’s a limit,or at least I hope there is, but there is also no doubt that the line has been moved. And in any case, there is not much more that the government would need to do in order to radically increase theregulabilityof thenet.These stepswouldnot themselves excite any significant resistance. The government has the means, and the motive.This chapter maps the opportunity.

The trick isobviousonce it is seen.Itmaywellbedifficult for thegovern- ment to regulatebehavior directly, given the architectureof the Internet as it

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is. But that doesn’t mean it is difficult for the government to regulate the architecture of the Internet as it is. The trick, then, is for the government to take steps that induce thedevelopmentof anarchitecture thatmakesbehavior more regulable.

In this context, I don’t mean by“architecture” the regulation of TCP/IP itself. Instead, I simplymeanregulation that changes theeffective constraints of thearchitectureof the Internet,byaltering thecodeatany layerwithin that space. If technologies of identification are lacking, then regulating the archi- tecture in this sense means steps the government can take to induce the deployment of technologies of identification.

If the government takes these steps, it will increase the regulability of behavior on the Internet.And depending upon the substance of these steps taken, it could render the Internet the most perfectly regulable space we’ve known.As Michael Geist describes it,“governments may have been willing to step aside during the commercial Internet’s nascent years, but no longer.”3

REGULATING ARCHITECTURE: THE REGULATORY TWO-STEP

We can call this the“regulatory two-step”: In a context in which behavior is relatively unregulable, the government takes steps to increase regulability. And once framed, there are any number of examples that set the pattern for the two-step in cyberspace.

Car Congestion

London had a problem with traffic.There were too many cars in the central district, and there was no simple way to keep“unnecessary”cars out.

So London did three things. It first mandated a license plate that a video camera could read, and then it installed video cameras on as many public fixtures as it would take to monitor—perpetually—what cars were where.

Then, beginning in February 2003, the city imposed a congestion tax: Initially £5 per day (between 7 A.M. and 6:30 P.M.) for any car (save taxis and residents paying a special fee), raised to £8 in July 2005.After 18 months in operation, the systemwasworking“better thanexpected.”Trafficdelayswere down 32 percent, traffic within the city was down 15 percent, and delays on main routes into the zones were down 20 percent. London is now exploring new technologies to make it even easier to charge for access more accurately. These includenewtagging technologies,aswell asGPSandGSMtechnologies that would monitor the car while within London.4

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Telephones

The architecture of telephone networks has undergone a radical shift in the past decade. After resisting the design of the Internet for many years,5 tele- phone networks are now shifting from circuit-switched to packet-switched networks.Aswith the Internet,packetsof informationare spewedacross the system,andnothingensures that theywill travel in the sameway,oralong the same path. Packets take the most efficient path, which depends on the demand at any one time.

Thisdesign,however,createsproblemsfor lawenforcement—inparticular, thatpartof lawenforcement thatdependsuponwiretaps todotheir job.In the circuit-switchednetwork, itwasrelatively simple to identifywhichwires to tap. In thepacket-switchednetwork,where therearenopredictablepaths forpack- etsof data to travel,wiretappingbecomesmuchmoredifficult.

At least it isdifficultunderonedesignof apacket-switchednetwork.Dif- ferent designs will be differently difficult.And that potential led Congress in 1994 to enact the Communications Assistance for Law Enforcement Act (CALEA).CALEA requires that networks be designed to preserve the ability of law enforcement to conduct electronic surveillance.This requirement has been negotiated in a series of “safe harbor”agreements that specify the stan- dards networks must meet to satisfy the requirements of the law.

CALEA is a classic example of the kind of regulation that I mean this chapter to flag.The industrycreatedonenetworkarchitecture.Thatarchitec- turedidn’t adequately serve the interests of government.The responseof the government was to regulate the design of the network so it better served the government’s ends. (Luckily for the networks, the government, at least ini- tially, agreed to pick up part of the cost.6)As Susan Crawford writes,

Most critically for the futureof the Internet, lawenforcement . . .hasmadeclear

that itwants toensure that it reviewsallpossibly relevantnewservices for com-

pliance with unstated information-gathering and information-forwarding

requirements before these services are launched. All prudent businesses will

want to run their services by law enforcement, suggests the DOJ: “Service

providers would be well advised to seek guidance early, preferably well before

deployment of a service, if they believe that their service is not covered by

CALEA. . . .DOJwouldcertainly consider a serviceprovider’s failure to request

such guidance in any enforcement action.”7

CALEAisa“signal,”Crawforddescribes, that the“FCCmaytake theview thatpermissionwill beneeded fromgovernmentauthoritieswhendesigning

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awidevarietyof services,computers,andwebsites thatuse the Internetpro- tocol. . . . [I]nformation flowmembraneswillbegovernmentallymandatedas part of the design process for online products and services.”8 That hint has continued: InAugust2005, theFederalCommunicationsCommission(FCC) ruled thatVoice-over-IPservices“mustbedesignedsoas tomakegovernment wiretapping easier.”9

Of course, regulating the architecture of the network was not the only means that Congress had. Congress could have compensated for any loss in crime prevention that resulted from the decreased ability to wiretap by increasing criminal punishments.10 Or Congress could have increased the resourcesdevoted tocriminal investigation.Bothof thesechangeswouldhave altered the incentives thatcriminals facewithoutusing thenetwork’spotential tohelp trackandconvict criminals.But instead,Congressacted tochange the architecture of the telephone networks, thus using the networks directly to change the incentives of criminals indirectly.

This is law regulating code. Its indirect effect is to improve law enforce- ment, and it does so by modifying code-based constraints on law enforce- ment.

Regulation like this works well with telephone companies.There are few companies,andtheregulation is relativelyeasy toverify.Telephonecompanies are thus regulable intermediaries:Rulesdirectedagainst themare likely tobe enforced.

But what about when telephone service (or rather “telephone service”) begins to be carried across the Internet? Vonage, or Skype, rather than Bell South?Are these entities similarly regulable?11

Theanswer is that theyare, though fordifferent reasons.SkypeandVon- age, as well as many other VOIP providers, seek to maximize their value as corporations.Thatvaluecomes inpart fromdemonstratingreliably regulable behavior.Failing tocomplywith the rulesof theUnitedStates government is nota foundationuponwhich tobuildahealthy,profitable company.That’s as true for General Motors as it is for eBay.

Telephones: Part 2

Four years after Congress enacted CALEA, the FBI petitioned the Federal CommunicationsCommission toenhance even further government’spower to regulate. Among the amendments the FBI proposed was a regulation designed to require disclosure of the locations of individuals using cellular phonesbyrequiring thephonecompanies toreport thecell tower fromwhich thecallwas served.12 Cellularphonesystemsneed thisdata toensure seamless

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switchingbetween transmitters.Butbeyondthis andbilling, thephonecom- panies have no further need for this information.

TheFBI,however,has interests beyond thoseof the companies. It would like that data made available whenever it has a “legitimate law enforcement reason”for requesting it.Theproposedamendment toCALEAwouldrequire thecellular company toprovide this information,which is awayof indirectly requiring that it write its code to make the information retrievable.13

The original motivation for this requirement was reasonable enough: Emergency service providers needed a simple way to determine where an emergency cellular phone call was coming from. Thus, revealing location data was necessary, at least in those cases. But the FBI was keen to extend the reach of location data beyond cases where someone was calling 911, so they pushed to require the collection of this information whenever a call is made.

So far, the FBI has been successful in its requests with the regulators but less sowithcourts.But the limits thecourtshave imposed simply require the FBI to meet a high burden of proof to get access to the data. Whatever the standard, the effect of the regulation has been to force cell phone companies tobuild their systems tocollect andpreserveakindof data thatonly aids the government.

Data Retention

Computers gather data about how they’re used. These data are collected in logs. The logs can be verbose or not—meaning they might gather lots of data,or little.And themore theygather, the easier itwill be to tracewhodid what.

Governments are beginning to recognize this. And some are making sure they can take advantage of it. The United States is beginning to “mull,”14 and the European Union has adopted, legislation to regulate“data generated or processed in connection with the provision of publicly avail- able electronic communications,”by requiring that providers retain speci- fied data to better enable law enforcement.This includes data to determine the source,destination, time,duration, type,andequipmentused inagiven communication.15 Rules suchas thiswill build a layerof traceability into the platformof electronic communication,making it easier for governments to track individualbehavior. (By contrast, in2006,CongressmanEdMarkeyof Massachusetts proposed legislation to forbid certain Internet companies, primarily search engines, from keeping logs that make Internet behavior traceable.16 We’ll see how far that proposed rule gets.)

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Encryption

The examples so far have involved regulations directed to code writers as a way indirectly to changebehavior.But sometimes, the government is doubly indirect:Sometimes it createsmarket incentivesasaway tochangecodewrit- ing, so that thecodewritingwill indirectlychangebehavior.Anexample is the U.S.government’s failedattempt tosecureClipperas the standard forencryp- tion technology.17

I have already sketched the Janus-faced nature of encryption: The same technology enables both confidentiality and identification.The government is concerned with the confidentiality part. Encryption allows individuals to make their conversationsordataexchangesuntranslatableexceptbysomeone with a key. How untranslatable is a matter of debate,18 but we can put that debate aside for the moment, because, regardless, it is too untranslatable for the government’s liking. So the government sought to control the use of encryption technologybygetting theClipper chipacceptedas a standard for encryption.

Themechanicsof theClipperchiparenoteasily summarized,but its aim was to encourage encryption technologies that left a back door open for the government.19 A conversation could be encrypted so that others could not understand it,but thegovernmentwouldhave theability (inmost caseswith a court order) to decrypt the conversation using a special key.

Thequestion for thegovernment thenwashow it could spread theClip- perchip technology.At first, theClintonadministration thought that thebest way was simply to ban all other encryption technology.This strategy proved very controversial, so the government then fixed on a different technique: It subsidized the development and deployment of the Clipper chip.20

The thinking was obvious: If the government could get industry to use Clipper by making Clipper the cheapest technology, then it could indirectly regulate the use of encryption. The market would do the regulation for the government.21

The subsidy plan failed. Skepticism about the quality of the code itself, and about the secrecy with which it had been developed, as well as strong opposition to any governmentally directed encryption regime (especially a U.S.-sponsored regime), led most to reject the technology. This forced the government to take another path.

Thatalternative is forourpurposes themost interesting.Fora time,some werepushing for authority to regulate authorsof encryptioncodedirectly— witharequirement that theybuild into their codeabackdoor throughwhich the government could gain access.22 While the proposals have been various,

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they all aim at ensuring that the government has a way to crack whatever encryption code a user selects.

Compared with other strategies—banning the use of encryption or flooding the market with an alternative encryption standard—this mode presents a number of advantages.

First,unlikebanningtheuseofencryption,thismodeof regulationdoesnot directly interferewith therightsofuseby individuals. It therefore isnotvulner- able to a strong, if yet unproven constitutional claim that an individual has a right“tospeakthroughencryption.”Itaimsonlytochangethemixofencryption technologiesavailable,nottocontroldirectlyanyparticularusebyanindividual. State regulationof thewritingof encryptioncode is just like state regulationof the design of automobiles: Individual use is not regulated. Second, unlike the techniqueof subsidizingonemarketsolution,thissolutionallowsthemarket to competetoprovidethebestencryptionsystem,giventhisregulatoryconstraint. Finally,unlikebothothersolutions,thisoneinvolvestheregulationofonlyarel- ativelysmallnumberofactors,sincemanufacturersofencryptiontechnologyare far fewer innumber thanusersorbuyersof encryptionsystems.

Like the other examples in this section, then, this solution is an example of the government regulating code directly so as to better regulate behavior indirectly; thegovernmentuses thearchitectureof thecode toreachapartic- ular substantive end.Here theend,aswithdigital telephony, is to ensure that the government’s ability to search certain conversations is not blocked by emerging technology. And again, the government pursues that end not by regulating primary behavior but by regulating the conditions under which primary behavior happens.

REGULATING CODE TO INCREASE REGULABILITY

All five of these examples address a behavior that the government wants to regulate,but which it cannot (easily) regulate directly. In all five, the govern- ment thus regulates that behavior indirectly by directly regulating technolo- gies that affect that behavior.Those regulated technologies in turn influence or constrain the targeted behavior differently. They “influence the develop- ment of code.”23 They are regulations of code that in turn make behavior more regulable.

Thequestion thatbeganthis chapterwaswhether therewere similarways that thegovernmentmight regulatecodeonthe Internet tomakebehavioron theNetmoreregulable.Theanswer isobviouslyyes.Therearemanysteps the government might take to make behavior on the network more regulable, and there are obvious reasons for taking those steps.

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If done properly, these steps would reduce and isolate untraceable Inter- net behavior. That in turn would increase the probability that bad behavior would be detected. Increased detection would significantly reduce the expectedreturn frommaliciousness.For somesignificant rangeof malevolent actors, that shift would drive their bad behavior elsewhere.

Thiswouldnotworkperfectly,of course.Noeffort of control could ever beperfect in either assuring traceabilityor trackingmisbehavior.Butperfec- tion is not the standard. The question is whether the government could put enough incentives into themixof thenetwork to inducea shift towards trace- ability as a default.For obvious reasons, again, the answer is yes.

The General Form

If the government’s aim is to facilitate traceability, that can be achieved by attachingan identity toactorsonthenetwork.Oneconceivableway todothat wouldbe torequirenetworkproviders toblockactionsby individualsnotdis- playing a government-issued ID. That strategy, however, is unlikely, as it is politically impossible.Americans are antsy enough about a national identity card;24 they are not likely to be interested in an Internet identity card.

Buteven if thegovernmentcan’t force cybercitizens tocarry IDs, it isnot difficult to create strong incentives for individuals to carry IDs. There is no requirement thatall citizenshaveadriver’s license,butyouwould find it very hard to get around without one, even if you do not drive. The government doesnot require thatyoukeepstate-issued identificationonyourperson,but if you want to fly to another city, you must show at least one form of it.The point isobvious:Make the incentive tocarry IDsostrong that it tips thenor- mal requirements of interacting on the Net.

In the sameway, thegovernmentcouldcreate incentives toenabledigital IDs, not by regulating individuals directly but by regulating intermediaries. Intermediaries are fewer, their interests are usually commercial, and they are ordinarily pliant targets of regulation. ISPs will be the“most important and obvious”targets—“focal points of Internet control.”25

Consider first the means the government has to induce the spread of “digital IDs.”Iwill thendescribemorewhat these“digital IDs”wouldhave to be.

First, government means:

•SitesontheNethavetheability toconditionaccessbasedonwhethersomeonecar-

ries thepropercredential.Thegovernmenthasthepowertorequiresites to impose

this condition.For example, the state could require that gambling sites check the

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ageandresidencyof anyonetryingtouse thesite.Manysitescouldberequiredto

check the citizenship of potential users, or any number of other credentials. As

more and more sites complied with this requirement, individuals would have a

greaterandgreater incentive tocarry thepropercredentials.Themorecredentials

theycarried, theeasier itwouldbe to impose regulationson them.26

•Thegovernmentcouldgivea taxbreak toanyonewhofiledhisorher incometax

with a proper credential.

• The government could impose a 10 percent Internet sales tax and then exempt

anyonewhopurchasedgoodswith a certificate that authenticated their stateof

residence; the statewould thenbeable tocollectwhatever local taxappliedwhen

it was informed of the purchase.27

• The government could charge users for government publications unless they

gained access to the site with a properly authenticated certificate.

• As in other Western democracies, the government could mandate voting28—

and then establish Internet voting; voters would come to the virtual polls with

a digital identity that certified them as registered.

• The government could make credit card companies liable for the full cost of

any credit card or debit card online fraud whenever the transaction was

processed without a qualified ID.

• The government could require the establishment of a secure registry of e-mail

servers that would be used to fight spam. That list would encourage others to

begin to require some further level of authentication before sending e-mail.

That authentication could be supplied by a digital ID.

The effect of each of these strategies would be to increase the prevalence of digital IDs.Andat somepoint, therewouldbea tipping.There is anobvi- ous benefit to many on the Net to be able to increase confidence about the entity with whom they are dealing. These digital IDs would be a tool to increase that confidence.Thus,even if a sitepermits itself tobeaccessedwith- out any certification by the user, any step beyond that initial contact could require carrying the proper ID. The norm would be to travel in cyberspace with an ID; those who refuse would find the cyberspace that they could inhabit radically reduced.

The consequence of this tipping would be to effectively stamp every action on the Internet—at a minimum—with a kind of digital fingerprint. That fingerprint—at a minimum—would enable authorities to trace any action back to the party responsible for it. That tracing—at a minimum— could require judicial oversight before any trace could be effected.And that oversight—at a minimum—could track the ordinary requirements of the FourthAmendment.

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At a minimum.For the critical part in this story is not that the govern- ment could induce an ID-rich Internet. Obviously it could. Instead, the important question is the kind of ID-rich Internet the government induces.

Compare two very different sorts of digital IDs, both of which we can understand in terms of the“wallet”metaphor used in Chapter 4 to describe the evolving technology of identity that Microsoft is helping to lead.

One sort of ID would work like this: Every time you need to identify yourself,you turnoveryourwallet.Thepartydemanding identificationrum- mages through the wallet, gathering whatever data he wants.

The second sort of ID works along the lines of the Identity Layer described in Chapter 4:When youneed to identify yourself, youcan provide the minimal identification necessary. So if you need to certify that you’re an American, only that bit gets revealed. Or if you need to certify that you’re over 18,only that fact gets revealed.

Onthemodelof the second formof thedigital ID, itbecomespossible to imagine then an ultra-minimal ID—an identification that revealsnothingon its face, but facilitates traceability.Again, a kind of digital fingerprint which is meaningless unless decoded, and, once decoded, links back to a responsible agent.

These two architectures stand at opposite ends of a spectrum. They produce radically different consequences for privacy and anonymity. Per- fect anonymity is possible with neither; the minimal effect of both is to make behavior traceable.But with the second mode, that traceability itself can be heavily regulated. Thus, there should be no possible traceability when the only action at issue is protected speech.And where a trace is to be permitted, it should only be permitted if authorized by proper judicial action. Thus the system would preserve the capacity to identify who did what when, but it would only realize that capacity under authorized cir- cumstances.

The difference between these two ID-enabled worlds, then, is all the dif- ference in the world.And critically, which world we get depends completely upon the values that guide the development of this architecture. ID-type 1 would be a disaster for privacy as well as security. ID-type 2 could radically increase privacy, as well as security, for all except those whose behavior can legitimately be tracked.

Now, the feasibility of the government effecting either ID depends cru- cially upon the target of regulation. It depends upon there being an entity responsible for thecode that individualsuse,and it requires that theseentities can be effectively regulated. Is this assumption really true? The government

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may be able to regulate the telephone companies,but can it regulate a diver- sity of code writers? In particular, can it regulate code writers who are com- mitted to resisting precisely such regulation?

In a world where the code writers were the sort of people who governed the Internet Engineering Task Force29 of a few years ago, the answer is prob- ably no.The underpaid heroes who built the Net have ideological reasons to resist government’smandate.Theywerenot likely toyield to its threats.Thus, they would provide an important check on the government’s power over the architectures of cyberspace.

But as code writing becomes commercial—as it becomes the product of a smallernumberof largecompanies—thegovernment’s ability to regulate it increases.Themoremoney there is at stake, the less inclinedbusinesses (and their backers) are to bear the costs of promoting an ideology.

The best example is the history of encryption.From the very start of the debateover thegovernment’s controlof encryption, techieshaveargued that suchregulationsare silly.Codecanalwaysbeexported;bitsknownoborders. So the idea that a law of Congress would control the flow of code was, these people argued,absurd.

The fact is,however, that the regulations had a substantial effect.Not on the techies—whocould easily get encryption technologies fromanynumber of places on the Net—but on the businesses writing software that would incorporate such technology.Netscapeor IBMwasnotabout tobuildandsell software in violation of U.S. regulations.The United States has a fairly pow- erful threat against these twocompanies.As the techiespredicted, regulation didnotcontrol the flowof bits.But itdidquite substantially inhibit thedevel- opment of software that would use these bits.30

The effect has been profound. Companies that were once bastions of unregulability are now becoming producers of technologies that facilitate regulation.Forexample,NetworkAssociates, inheritorof theencryptionpro- gramPGP,wasoriginallya strongopponentof regulationof encryption;now itoffersproducts that facilitate corporatecontrolof encryptionandrecovery of keys.31 Keyrecoverycreatesacorporatebackdoor,which, inmanycontexts, is far less restricted than a governmental back door.

Cisco is a second example.32 In 1998 Cisco announced a router product thatwouldenableanISPtoencrypt Internet traffic at the link level—between gateways, that is.33 But this routerwouldalsohavea switch thatwoulddisable theencryptionof the routerdataand facilitate thecollectionof unencrypted Internet traffic.This switch could be flipped at the government’s command; in other words, the data would be encrypted only when the government allowed it to be.

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The point in both cases is that the government is a player in the market for software. It affects the market both by creating rules and by purchasing products. Either way, it influences the supply of commercial software providers who exist to provide what the market demands.

Veterans of the early days of the Net might ask these suppliers, “How could you?”

“It’s just business,” is the obvious reply.

EAST COAST AND WEST COAST CODES

Throughout this section, I’ve been speaking of two sorts of code.One is the “code”thatCongress enacts (as in the taxcodeor“theU.S.Code”).Congress passes an endless array of statutes that say in words how to behave. Some statutesdirectpeople;othersdirect companies; somedirectbureaucrats.The technique is as old as government itself: using commands to control. In our country, it is a primarily East Coast (Washington,D.C.) activity.Call it“East Coast Code.”

The other is the code that code writers“enact”—the instructions imbed- ded in the software and hardware that make cyberspace work.This is code in its modern sense. It regulates in the ways I’ve begun to describe.The code of Net95,forexample,regulatedtodisablecentralizedcontrol; codethatencrypts regulates toprotectprivacy. Inour country (MITexcepted), this kindof code writing is increasinglyaWestCoast (SiliconValley,Redmond)activity.Wecan call it“WestCoastCode.”

WestCoast andEastCoastCodecanget alongperfectlywhen they’renot payingmuchattention toeachother.Each, that is,canregulatewithin itsown domain.But thestoryof thischapter is“WhenEastMeetsWest”:whathappens when East Coast Code recognizes how West Coast Code affects regulability, andwhenEastCoastCodeseeshowitmight interactwithWestCoastCodeto induce it to regulatedifferently.

This interaction has changed. The power of East Coast Code over West CoastCodehas increased.Whensoftwarewas theproductofhackersandindi- viduals locatedoutsideof any institutionof effectivecontrol (forexample, the Universityof IllinoisorMIT),EastCoastCodecoulddo little to controlWest CoastCode.34 Butascodehasbecometheproductof companies, thepowerof EastCoastCodehas increased.Whencommercewritescode,thencodecanbe controlled,becausecommercial entities canbecontrolled.Thus, thepowerof EastoverWest increasesasWestCoastCodebecomes increasinglycommercial.

There is a longhistoryof powermovingwest. It tells of the clashof ways between the old and the new.The pattern is familiar.TheEast reaches out to

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control theWest; theWest resists.But that resistance isnevercomplete.Values fromtheEastbecome integratedwith theWest.Thenewtakesonabitof the old.

That is precisely what is happening on the Internet. When West Coast Code was born, there was little in its DNA that cared at all about East Coast Code concerns.The Internet’s aim was end-to-end communication.Regula- tion at the middle was simply disabled.

Over time, the concerns of East Coast Coders have become much more salient.Everyonehates thepathologiesof the Internet—viruses, IDtheft,and spam, topick the least controversial.Thatuniversal hatredhaswarmedWest Coast Coders to finding a remedy. They are now primed for the influence East Coast Code requires: adding complements to the Internet architecture that will bring regulability to the Net.

Now, some will continue to resist my claim that the government can effect a regulable Net.This resistance has a common form: Even if architec- tures of identification emerge, and even if they become common, there is nothing to showthat theywill becomeuniversal, andnothing to showthat at anyone time they couldnotbe evaded. Individuals canalwaysworkaround these technologiesof identity.Nocontrol that theycouldeffectwouldeverbe perfect.

True.Thecontrolof an ID-rich Internetwouldneverbecomplete.There will always be ways to escape.

But there is an important fallacy lurking in the argument: Just because perfect control isnotpossibledoesnotmeanthat effectivecontrol isnotpos- sible. Locks can be picked, but that does not mean locks are useless. In the context of the Internet, even partial control would have powerful effects.

A fundamental principle of bovinity is operating here and elsewhere. Tiny controls, consistently enforced, are enough to direct very large animals. Thecontrolsof acertificate-rich Internetare tiny,I agree.Butweare largeani- mals. I think it is as likely that themajorityof peoplewouldresist these small but efficient regulators of the Net as it is that cows would resist wire fences. This is who we are, and this is why these regulations work.

So imagine the world in which we all could simply establish our creden- tials simply by looking into a camera or swiping our finger on a thumbprint reader. In a second, without easily forgotten passwords, or easily forged authentication, we get access to the Net, with all of the attributes that are ours, reliably and simply assertable.

What will happen then? When you can choose between remembering a pass-phrase, typing it every timeyouwantaccess toyourcomputer,andsim- ply using your thumb to authenticate who you are? Or if not your thumb,

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then your iris, or whatever body part turns out to be cheapest to certify? When it is easiest simply to give identity up,will anyone resist?

If this is sellingyour soul, then trust that there are trulywonderfulbene- fits tobehad.Imagineaworldwhereall yourdocumentsexiston the Internet ina“virtualprivatenetwork,”accessiblebyyou fromanymachineontheNet and perfectly secured by a biometric key.35 You could sit at any machine, call upyourdocuments,doyourwork,answeryoure-mail,andmoveon—every- thingperfectly secureandsafe, lockedupbyakeycertifiedby themarkings in your eye.

This is theeasiest andmostefficientarchitecture to imagine.Andit comes at (what some think) is a very low price—authentication. Just say who you are,plug intoanarchitecture that certifies facts about you,give your identity away, and all this could be yours.

Z-THEORY

“So, like, itdidn’thappen,Lessig.Yousaid in1999 thatcommerceandgovern- ment would work together to build the perfectly regulable net. As I look through my spam-infested inbox, while my virus checker runs in the back- ground, I wonder what you think now. Whatever was possible hasn’t hap- pened. Doesn’t that show that you’re wrong?”

So writes a friend to me as I began this project to update Code v1. And while I never actually said anything about when the change I was predicting would happen, there is something in the criticism. The theory of Code v1 is missing a part: Whatever incentives there are to push in small ways to the perfectly regulable Net, the theory doesn’t explain what would motivate the final push.What gets us over the tipping point?

The answer is not fully written, but its introduction was published this year. In May 2006, the Harvard Law Review gave Professor Jonathan Zittrain (hence“Z-theory”)67pages toexplain“TheGenerative Internet.”36 Thearti- cle is brilliant; the book will be even better; and the argument is the missing piece in Code v1.

Much of The Generative Internet will be familiar to readers of this book. General-purpose computers plus an end-to-end network, Zittrain argues, have produced an extraordinarily innovative (“generative”) platform for invention.We celebrate the good stuff this platform has produced.But we (I especially) who so celebrate don’t pay enough attention to the bad. For the very same design that makes it possible for an Indian immigrant to invent HoTMaiL, or Stanford dropouts to create Google, also makes it possible for malcontents and worse to create viruses and worse. These sorts use the

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generative Internet togenerateevil.AndasZittrainrightlyobserves,we’ve just begun to see the evil this malware will produce. Consider just a few of his examples:

• In2003, ina testdesigned tomeasure the sophisticationof spammers in finding

“open relay” servers through which they could send their spam undetected,

within10hours spammershad foundthe server.Within66hours theyhadsent

more than 3.3 million messages to 229,468 people.37

• In 2004, the Sasser worm was able to compromise more than 500,000 comput-

ers—in just3days.38 Theyearbefore, theSlammerworminfected90percentof

a particular Microsoft server—in just 15 minutes.39

• In2003, theSoBig.Fe-mail virusaccounted foralmost70percentof thee-mails

sent while it was spreading.More than 23.2 million messages were sent toAOL

users alone.40

Theseareof coursenot isolatedevents.Theyare insteadpartof agrowing pattern. As the U.S. Computer Emergency Readiness Team calculates, there has been an explosion of security incidents reported to CERT. Here is the graph Zittrain produced from the data:41

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Number of Security Incidents Reported to CERT/CC, 1988-2003

20,000

40,000

60,000

80,000

100,000

120,000

140,000

160,000

1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003

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Thegraphends in2004becauseCERTconcluded that the incidentswere so “commonplace and widespread as to be indistinguishable from one another.”42

That there is malware on the Internet isn’t surprising.That it is growing isn’t surprising either.What is surprising is that, so far at least, this malware hasnotbeenasdestructiveas it couldbe.Given theabilityof malwareauthors toget theirmaliciouscodeonmanymachinesveryquickly,whyhaven’tmore tried to do real harm?

Forexample, imagineawormthatworked itself ontoamillionmachines, and in a synchronized attack, simultaneously deleted the hard drive of all million machines.Zittrain’s point is not that this is easy, but rather, that it is just as difficult as the kind of worms that are already successfully spreading themselves everywhere. So why doesn’t one of the malicious code writers do real damage?What’s stopping cyber-Armageddon?

The answer is that there’s no good answer. And when there’s no good explanation for why something hasn’t happened yet, there’s good reason to worry that it will happen.And when this happens—when a malware author producesa reallydevastatinglydestructiveworm—thatwill trigger thepolit- ical resolve to do what so far governments have not done: push to complete the work of transforming the Net into a regulable space.

This is thecrucial (andonceyousee it,obvious) insightof Z-theory.Ter- ror motivates radical change. Think about, for example, the changes in law enforcement (andtheprotectionof civil rights) effectedby the“PatriotAct.”43

Thismassively extensivepieceof legislationwasenacted45daysafter the ter- ror attacks on 9/11. But most of that bill had been written long before 9/11. The authors knew that until there was a serious terrorist attack, there would be insufficientpoliticalwill tochange lawenforcement significantly.Butonce the trigger of 9/11 was pulled, radical change was possible.

The same will be true of the Internet.The malware we’ve seen so far has caused great damage. We’ve suffered this damage as annoyance rather than threat. But when the Internet’s equivalent of 9/11 happens—whether spon- sored by“terrorists”or not—annoyance will mature into political will.And that political will will produce real change.

Zittrain’s aimis toprepareus for that change.Hispowerful andextensive analysisworks through the trade-offswecouldmakeaswechange the Inter- net into something less generative.Andwhilehis analysis isworthyof abook of its own, I’ll let him write it.My goal in pointing to it here is to provide an outline to an answer that plugs the hole in the theory of Code v1. Code v1 described the means.Z-theory provides the motive.

{TXB2}

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There was an awful movie released in 1996 called Independence Day. The story is aboutan invasionbyaliens.Whenthealiens first appear,manyearth- lings are eager to welcome them. For these idealists, there is no reason to assume hostility, and so a general joy spreads among the hopeful across the globe inreaction towhatbeforehadseemed justadream:really coolalien life.

Soon after the aliens appear, however, and well into the celebration, the mood changes. Quite suddenly, Earth’s leaders realize that the intentions of thesealiensarenotat all friendly. Indeed, theyarequitehostile.Withinavery short timeof this realization,Earth is captured. (Only Jeff Goldblumrealizes what’s going on beforehand,but he always gets it first.)

My story here is similar (though I hope not as awful). We have been as welcomingand joyousabout theNetas theearthlingswereabout thealiens in Independence Day; we have accepted its growth in our lives without ques- tioning its final effect.But at some point,we too will come to see a potential threat. We will see that cyberspace does not guarantee its own freedom but instead carries an extraordinary potential for control.And then we will ask: How should we respond?

I have spent many pages making a point that some may find obvious. But Ihave foundthat, for somereason,thepeople forwhomthispoint should be most important do not get it. Too many take this freedom as nature.Too many believe liberty will take care of itself. Too many miss how different architecturesembeddifferentvalues,andthatonlybyselecting thesedifferent architectures—thesedifferent codes—canweestablishandpromoteourval- ues.

Now it shouldbeapparentwhy Ibegan thisbookwithanaccountof the rediscoveryof therole for self-government,orcontrol, thathasmarkedrecent history inpost-CommunistEurope.Market forcesencouragearchitecturesof identity to facilitate online commerce.Government needs to do very little— indeed, nothing at all—to induce just this sort of development. The market forces are too powerful; the potential here is too great. If anything is certain, it is that an architecture of identity will develop on the Net—and thereby fundamentally transform its regulability.

But isn’t it clear thatgovernment shoulddosomething tomake thisarchi- tecture consistent with important public values? If commerce is going to define the emergingarchitecturesof cyberspace, isn’t the roleof government toensure that thosepublic values that arenot incommerce’s interest are also built into the architecture?

Architecture is a kind of law: It determines what people can and cannot do.Whencommercial interestsdetermine thearchitecture, theycreateakind of privatized law.I amnotagainstprivate enterprise;mystrongpresumption

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in most cases is to let the market produce. But isn’t it absolutely clear that there must be limits to this presumption? That public values are not exhaustedby thesumof what IBMmightdesire?Thatwhat isgoodforAmer- ica Online is not necessarily good forAmerica?

Ordinarily, when we describe competing collections of values, and the choices we make among them, we call these choices “political.” They are choices about how the world will be ordered and about which values will be given precedence.

Choices among values, choices about regulation, about control, choices about the definition of spaces of freedom—all this is the stuff of politics. Code codifies values, and yet,oddly,most people speak as if code were just a question of engineering. Or as if code is best left to the market. Or best left unaddressed by government.

But these attitudes aremistaken.Politics is thatprocessbywhichwecol- lectively decide how we should live. That is not to say it is a space where we collectivize—a collective can choose a libertarian form of government. The point is not the substance of the choice. The point about politics is process. Politics is the process by which we reason about how things ought to be.

Two decades ago, in a powerful trilogy drawing together a movement in legal theory,RobertoUngerpreachedthat“it’s allpolitics.”44 Hemeant thatwe should not accept that any part of what defines the world is removed from politics—everything should be considered “up for grabs” and subject to reform.

Many believed Unger was arguing that we should put everything up for grabs all the time, that nothing should be certain or fixed, that everything should be in constant flux.But that is not what he meant.

Hismeaningwas instead just this:Thatwe should interrogate theneces- sitiesof anyparticular socialorderandaskwhether theyare in factnecessities, and we should demand that those necessities justify the powers that they order. As Bruce Ackerman puts it, we must ask of every exercise of power: Why?45 Perhaps not exactly at the moment when the power is exercised, but sometime.

“Power,”in this account, is just anotherword forconstraints thathumans candosomethingabout.Meteorscrashing toeartharenot“power”within the domain of“it’s all politics.”Where the meteor hits is not politics, though the consequences may well be.Where it hits, instead, is nothing we can do any- thing about.

But the architecture of cyberspace is power in this sense; how it is could bedifferent.Politics is abouthowwedecide,howthatpower is exercised,and by whom.

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If code is law,then,asWilliamMitchellwrites,“controlof code ispower”: “Forcitizensof cyberspace, . . . code . . . isbecomingacrucial focusof political contest. Who shall write that software that increasingly structures our daily lives?”46 As the world is now, code writers are increasingly lawmakers. They determine what the defaults of the Internet will be; whether privacy will be protected; thedegree towhichanonymitywillbeallowed; theextent towhich access will be guaranteed. They are the ones who set its nature. Their deci- sions, now made in the interstices of how the Net is coded, define what the Net is.

How the code regulates, who the code writers are, and who controls the codewriters—thesearequestionsonwhichanypracticeof justicemust focus in the ageof cyberspace.Theanswers reveal howcyberspace is regulated.My claim in this part of the book is that cyberspace is regulated by its code, and that the code is changing. Its regulation is its code, and its code is changing.

Weare enteringanagewhen thepowerof regulationwill be relocated to a structurewhoseproperties andpossibilities are fundamentallydifferent.As I said about Russia at the start of this book, one form of power may be destroyed,but another is taking its place.

Ouraimmustbe tounderstand thispowerandtoaskwhether it isprop- erly exercised.AsDavidBrinasks,“If weadmire theNet, shouldnotaburden of proof fall on thosewhowould change thebasic assumptions thatbrought it about in the first place?”47

These “basic assumptions” were grounded in liberty and openness. An invisible hand now threatens both.We need to understand how.

{TXB2} One example of the developing struggle over cyber freedoms is the still-not- free China. The Chinese government has taken an increasingly aggressive standagainstbehavior incyberspace thatviolates real-spacenorms.Purveyors of porn get 10 years in jail. Critics of the government get the same. If this is the people’s republic, this is the people’s tough love.

To make these prosecutions possible, the Chinese need the help of net- workproviders.And local lawrequires thatnetworkproviders inChinahelp. So storyafter storynowreportsmajornetworkproviders—includingYahoo! andMicrosoft—helping thegovernmentdothe sortof stuff thatwouldmake our Constitution cringe.

The extremes are bad enough. But the more revealing example of the pattern I’m describing here is Google.Google is (rightly) famous for its fan- tastic searchengine.Itsbrandhasbeenbuilton the idea thatno irrelevant fac- tor controls its search results. Companies can buy search words, but their results are bracketed and separate from the main search results. The central

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search results—that part of the screen your eyes instinctively go to—are not to be tampered with.

Unless the company seeking to tamperwith the results isChina, Inc.For China,Googlehaspromised tobuilda special routine.48 SitesChinawants to block won’t appear in the Google.CN search engine. No notice will be pre- sented.Nosystemwill informsearchers that the search results they are read- inghavebeen filteredbyChinese censors. Instead, to theChineseviewer, this will look likenormaloldGoogle.AndbecauseGoogle is sogreat, theChinese governmentknowsmostwill bedriven toGoogle,even if Google filterswhat the government doesn’t want its people to have.

Here is the perfect dance of commerce with government. Google can build the technology theChineseneed tomakeChina’s regulationmoreper- fectly enabled, and China can extract that talent from Google by mandating it as a condition of being in China’s market.

The value of that market is thus worth more to Google than the value of its “neutral search” principle. Or at least, it better be, if this deal makes any sense.

My purpose here is not to criticize Google—or Microsoft, or Yahoo! These companies have stockholders; maximizing corporate value is their charge. Were I running any of these companies, I’m not sure I would have acted differently.

But that in the end is my point: Commerce has a purpose, and govern- mentcanexploit that to itsownend.Itwill, increasinglyandmore frequently, and when it does, the character of the Net will change.

Radically so.

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P A R T T W O

r e g u l a t i o n b y c o d e

The lesson of the last part was that the interaction between commerce and governmentwill change theeffectivearchitectureof the Internet.Thatchange will increase the regulability of behavior on the Internet. Powder will be sprayedon the invisiblemenof cyberspace,andafter the spray, their exploits will be more easily known.

But so farmystoryhasnotchangedthebasicmodebywhichgovernment regulates. So far, the government threatens punishment, and that threat is intendedtocreate the incentive for individuals toobey thegovernment’s rule. The changes in the effective architecture of cyberspace that I have described would simplymake it easier for the state tomakegoodon its threat, and that wouldreduce theexpectedvalueof criminalbehavior (preferablybelowzero). Traceability will increase effective enforcement; effective enforcement will increase the costs of deviating from a state-specified rule.

In thispart, I consideradifferentkindof regulation.Thequestionhere is not how the architecture of the Net will make it easier for traditional regula- tion to happen. The issue here is how the architecture of the Net—or its “code”—itself becomes a regulator. In this context, the rule applied to an individualdoesnot find its force fromthe threatof consequencesenforcedby the law—fines, jail,or evenshame.Instead, therule is applied toan individual

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through a kind of physics. A locked door is not a command “do not enter” backed up with the threat of punishment by the state. A locked door is a physical constraint on the liberty of someone to enter some space.

My claim is that this form of regulation will become increasingly com- mon in cyberspace. And it has, moreover, a distinctive and often counter- intuitive character.The aim of this part is to explore this distinctive mode of regulation as a step to understanding more systematically the interaction between technology and policy.

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S I X

c y b e r s p a c e s

I’VE SAID WE CAN DISTINGUISH THE INTERNET FROM CYBERSPACE. TO MAKE THE distinctive form of regulation that is the subject of this part salient,we need tosayabitmoreabout thisdistinction.The Internet is amediumof commu- nication. People do things“on”the Internet.Most of those things are trivial, even if important.Peoplepaybills on the Internet, theymake reservations at restaurants.Theyget theirnews fromthe Internet.They sendnews to family membersusinge-mail or IMchat.Theseuses are important in the sense that they affect the economy and make life easier and harder for those using the Internet.But they’renot important in the sense that they changehowpeople live. It’s verycool thatyoucanbuybookswithoneclickatAmazon.Ibuy tons (maybe literally) of books I wouldn’t otherwise have bought.But my life has notbeenchangedbyone-click (even if mybankaccounthas). It’sbeenmade easier and more literate,but not anything fundamentally different.

Cyberspace, by contrast, is not just about making life easier. It is about making lifedifferent,orperhapsbetter. It is aboutmakingadifferent (or sec- ond) life. It evokes, or calls to life,ways of interacting that were not possible before. I don’t mean that the interaction is new—we’ve always had commu- nities; thesecommunitieshavealwaysproducedsomethingclose towhat Iwill describecyberspace tohaveproduced.But thesecyberspacecommunities cre- ate a difference in degree that has matured into a difference in kind.There is somethinguniqueabout the interactions in these spaces,andsomethingespe- cially unique about how they are regulated.

Life in cyberspace is regulatedprimarily through thecodeof cyberspace. Not regulated in the sense of Part I—my point is not that the code makes it easy to know who did what so that penalties can be visited upon those who behaved badly. Regulated in the sense that bars on a prison regulate the

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movement of a prisoner, or regulated in the sense that stairs regulate the accessof thedisabled.Code is a regulator incyberspacebecause itdefines the terms upon which cyberspace is offered. And those who set those terms increasingly recognize the code as a means to achieving the behaviors that benefit them best.

Andso toowith the Internet.Codeonthe Internet is alsoa regulator,and people live life on the Internet subject to that regulation. But my strategy in this chapter is to begin with the more obscure as a way to build recognition about the familiar. Once you see the technique applied to worlds you are unlikely to inhabit,youwill recognize the techniqueapplied to theworldyou inhabit all the time.

{TXB2} Cyberspace is not one place. It is many places. And the character of these many places differ in ways that are fundamental. These differences come in part from differences in the people who populate these places, but demo- graphics alone don’t explain the variance.Something more is going on.

Here is a test. Read the following passage, and ask yourself whether the description rings true for you:

I believe virtual communities promise to restore to Americans at the end of the

twentiethcenturywhatmanyofus feelwas lost in thedecadesat thebeginningof

thecentury—astablesenseof community,ofplace.Askthosewho’vebeenmem-

bers of such a virtual community, and they’ll tell you that what happens there is

more than an exchange of electronic impulses in the wires. It’s not just virtual

barnraising. . . . It’salsothecomfort fromothers thatamanlikePhilCatalfoof the

WELLcanexperiencewhenhe’sup late atnight caring for a child suffering from

leukemia,andhe logsontotheWELLandpoursouthisanguishandfears.People

really do care for each other and fall in love over the Net, just as they do in geo-

graphiccommunities.Andthat“virtual”connectedness is a real signof hope ina

nation that’s increasingly anxious about the fragmentation of public life and the

polarizationof interest groupsand thealienationof urbanexistence.1

There are two sorts of reactions to talk like this.To those who have been in“cyberspace” for some time, such talk is extremely familiar. These people havebeenondifferentkindsof“nets”fromthestart.Theymovedto the Inter- net frommore isolatedcommunities—froma localBBS(bulletinboardserv- ice), or, as Mike Godwin (the author of the passage) puts it, from a “tony” address likeTheWELL.For themtheNet is a space forconversation,connec- tions, andexchange—awildlypromising location formaking life inreal space different.

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But if youare a recent immigrant to this“space”(theold-timers call you “newbies”), or if all you do on the Internet is check your stocks or look up movie times, you are likely to be impatient with talk like this.When people talkabout“community,”about specialways toconnect,orabout theamazing power of this space to alter lives, you are likely to ask, “What is this idea of cyberspaceasaplace?”Fornewbies, thosewhohavesimplye-mailedor surfed the Web, the“community”of the Net is an odd sort of mysticism. How can anyone think of these pages full of advertisements and spinning icons as a community, or even as a space? To the sober newbie, this just sounds like hype high on java.2

Newbies are the silent majority of today’s Net.3 However much one romanticizes the old days when the Net was a place for conversation and exchange, this is not its function formostof its usersnow.There are explod- ingcommunitiesof bloggersandcreativity.Butbloggersare still just3percent of Internet users; the vast majority of Internet use has no connection to any ideal of community.

Cyberspacehas changed in its feel.4 How it looks,what youcando there, how you are connected there—all this has changed. Why it has changed is a complicated question—a complete answer to which I can’t provide. Cyber- spacehaschanged inpartbecause thepeople—whotheyare,what their inter- ests are—have changed, and in part because the capabilities provided by the space have changed.

But part of the change has to do with the space itself. Communities, exchange, and conversation all flourish in a certain type of space; they are extinguished inadifferent typeof space.5 Myhope is to illuminate thediffer- ences between these two environments.

The next sections describe different cyber-places. The aim is to build intuitionsabouthowto think through thedifferences thatweobserve.These intuitions, in turn, will help us see something about where cyberspace is moving.

THE VALUES OF A SPACE

Spaceshavevalues.6 Theymanifest thesevalues through thepracticesor lives that they enable or disable.As Mark Stefik puts it:

[B]arriers within cyberspace—separate chat rooms, intranet gateways, digital

envelopes, and other systems to limit access—resemble the effects of national

borders, physical boundaries, and distance. Programming determines which

people can access which digital objects and which digital objects can interact

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with other digital objects. How such programming regulates human interac-

tions—and thus modulates change—depends on the choices made.7

Choicesmeanthatdifferentlyconstitutedspacesenableanddisablediffer- ently. This is the first idea to make plain.Here is an example.

At the startof the Internet,communicationwas throughtext.Media such as USENET newsgroups, Internet Relay Chat, and e-mail all confined exchange to text—to words on a screen, typed by a person (or so one thought).

Thereason for this limitation is fairlyobvious:Thebandwidthof earlyNet lifewasverythin.Inanenvironmentwheremostusersconnectedat1,200baud, if theywerelucky,graphicsandstreamingvideowouldhavetakenanunbearably longtimetodownload, if theydownloadedatall.Whatwasneededwasaneffi- cientmodeof communication—andtext isoneof themostefficient.8

Most think of this fact about the early Net as a limitation.Technically, it was.But this technicaldescriptiondoesnotexhaust itsnormativedescription asanarchitecture thatmadepossibleacertainkindof life.Fromthisperspec- tive, limitations can be features; they can enable as well as disable. And this particular limitation enabled classes of people who were disabled in real- space life.

Think about three such classes—the blind, the deaf, and the “ugly.” In real space these people face an extraordinary array of constraints on their ability to communicate. The blind person in real space is constantly con- frontedwitharchitectures thatpresumehecansee;hebearsanextraordinary cost in retrofitting real-space architectures so that this presumption is not totally exclusionary. The deaf person in real space confronts architectures thatpresumeshecanhear; she toobears anextraordinary cost in retrofitting these architectures.The“ugly”person in real space (thinkof abaror a social club)confrontsarchitecturesof socialnorms thatmakehis appearanceabar- rier to a certain sort of intimacy.He endures extraordinary suffering in con- forming to these architectures.

Inreal space these threegroupsareconfrontedwitharchitectures thatdis- able them relative to“the rest of us.”But in cyberspace, in its first iteration, they did not.

Theblindcouldeasily implement speechprograms that read the (bydef- initionmachine-readable) textandcouldrespondby typing.Otherpeopleon the Net would have no way of knowing that the person typing the message was blind,unless he claimed to be.The blind were equal to the seeing.

The samewith thedeaf.Therewasnoneed tohear anything in this early Internet. For the first time many of the deaf could have conversations, or

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exchanges, inwhich themost salient featurewasnot that thepersonwasdeaf. The deaf were equal to the hearing.

Andthesamewith the“ugly.”Becauseyourappearancewasnot transmit- tedwitheveryexchange, theunattractivecouldhavean intimateconversation withothers thatwasnotautomaticallydefinedbywhat they looked like.They could flirt or play or be sexual without their bodies (in an extremely under- appreciated sense)getting in theway.This first versionof theNetmade these people equal to“thebeautiful.”Inavirtual chat room,stunningeyes,a capti- vatingsmile,or impressivebicepsdon’tdo it.Wit,engagement,andarticulate- ness do.

Thearchitectureof thisoriginal cyberspacegave thesegroups something that theydidnothave inreal space.Moregenerally, it changedthemixof ben- efits andburdens thatpeople faced—the literatewereenabledandtheattrac- tive disabled relative to real space. Architectures produced these enablings and disablings.

I’ve told this storyas if itmattersonly to thosewho inreal spaceare“dis- abled.” But of course,“disabled” is a relative term.9 It is more accurate to say that the space changes the meaning of the enabled. A friend—a strikingly beautiful and powerful woman, married, and successful—described for me why she spends hours in political chat spaces, arguing with others about all sorts of political topics:

Youdon’tunderstandwhat it’s like tobeme.Youhave livedyourwhole life in a

world where your words are taken for their meaning; where what you say is

heard forwhat it says. I’veneverhada space,before this space,wheremywords

were taken for what they meant.Always,before, they werewordsof“this babe,”

or“wife,”or“mother.”I could never speak as I.But here, I am as I speak.

Clearly, the space is enabling her, even though one would not have said that in real space she was“disabled.”10

Over time, as bandwidth has expanded, this architecture has changed, and so has the mix of benefits and burdens.When graphics entered the Net through theWorldWideWeb, theblindbecame“blind”again.As sound files or speech in virtual spaces have been created, the deaf have become “deaf” again. And as chat rooms have started segregating into spaces where video- cams capture real images of the people chatting and spaces where there is just text, thevideo-unappealingareagainunappealing.11 As thearchitectures change,definitions of who is“disabled”change as well.

My point is not to argue that the Net should not change—though of course, if it can change in ways that minimize the disabling effect of sound

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andgraphics, then itnodoubt should.12 However important,mypoint isnot really about the “disabled” at all. I use this example simply to highlight a link—betweenthese structuresof codeandtheworld this codeenables.Codes constitutecyberspaces; spacesenableanddisable individuals andgroups.The selections about code are therefore in part a selection about who,what, and, most important,what ways of life will be enabled and disabled.

CYBER-PLACES

Wecanbuildon thispointby lookingat anumberof“communities”that are constituted differently and that constitute different forms of life and by con- sidering what makes these differences possible.

America Online

America Online (AOL) is an online service provider—“by far the largest ISP in the world”13 with some 12 million subscribers in 1998 and 27 million today.14 Butdespitehaving thepopulationof NewYorkandNewJerseycom- bined, AOL still describes itself as a “community.”A large community per- haps, but a community nonetheless.

This community has a constitution—not in the sense of a written docu- ment (though there is that as well), but in the sense of a way of life for those who live there. Its founding vision was that community would make this place sing. So from its start,AOL’s emphasis has been on enabling people to interact, through chat, bulletin boards, and e-mail. (Today, AOL hosts the exchange of more messages daily than does the U.S. Post Office.15) Earlier providers,obsessedwithprovidingcontentoradvertising, limitedor ignored thepossibilities for interactionandexchange,butAOLsawinteractionas the stuff thatmakes cyberspacedifferent. It built itself on building a community and establishing itself as a place where people could say what they wanted.16

This interaction isgovernedby the rulesof theplace.Someof these rules are formal, others customary.Among the formal are express terms to which every member subscribes upon joining AOL. These terms regulate a wide range of behaviors in this space, including the behavior of AOL members anywhere on the Internet.17

Increasingly, these rules have become controversial. AOL policies have been called “Big Brother” practices. Arguments that get heated produce exchanges that are rude. But rudeness, or offensiveness, is not permitted in AOL’s community. When these exchanges are expunged, claims of “censor- ship” arise.18

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My aim here,however, is not to criticize these rules of “netiquette.”AOL alsohasother rules that regulateAOLmembers—rules expressednot incon- tracts but rather through the very architectures of the space.These rules are themost importantpartofAOL’s constitution,but theyareprobably thepart considered last when we think about what regulates behavior in this cyber- place.

Consider some examples: FormostofAOL’s life,19 as amemberofAOLyoucouldbeanyoneof five

people.This was just one amazing feature of the space.When you started an account onAOL,you had the right to establish up to five identities, through five different “screen names” that in effect establish five different accounts. Some users, of course,used the five screen names to give other family mem- bers access to AOL. But not everyone used an AOL account like this. Think about the single woman, signing up for her firstAOL account.AOL gave her up to five identities that shecandefineas shewishes—fivedifferentpersonae she can use in cyberspace.

What does that mean? A screen name is just a label for identifying who you are when you are on the system. It need not (indeed, often cannot) be yourownname.If your screenname is“StrayCat,”thenpeoplecanreachyou by sending e-mail to“straycat@aol.com.”If you are online,people can try to talk to you by paging StrayCat on the AOL system; a dialogue would then appear on your screen asking whether you want to talk to the person who pagedyou. If youenter a chat room,the listof residents therewill addyouas “StrayCat.”

But who is StrayCat? Here is a second dimension of control. StrayCat is who StrayCat says she is. She can choose to define herself as no one at all. If she chooses to place a description of herself in the members’ directory, that description can be as complete or incomplete as she wishes. It can be true or false,explicit orvague, invitingornot.Amember stumblingacrossStrayCat, then, inachat roomsetup for stampcollectors couldgetherprofile andread that StrayCat lives in Cleveland and is single and female.What happens next is anyone’s guess.

Yet this need only be one of StrayCat’s five identities. Let’s say there is a different persona that StrayCat likes to have when she wanders through chat rooms.Shecan thenselect another screennameanddefine it in thedirectory as shewishes.PerhapswhenStrayCat ishavingaseriousdiscussion inanews- group or political list she prefers to speak as herself. She could then select a screennameclose toherownnameanddefine it according towhoshe really is.Atother timesStrayCatmay like topretend tobeaman—engaging invir- tual cross-dressing and all that might bring with it.One of her screen names

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could then be a man’s. And so on. The point is the multiplicity that AOL allows, and the freedom this multiplicity permits.

Nooneexcept StrayCatneeds toknowwhich screennames arehers.She isnot required topublish the full listof her identities,andnoonecan findout who she is (unless she breaks the rules). (After revealing to the U.S.Navy the name of one of its members so that the Navy could prosecute the person for being a homosexual,AOL adopted a very strict privacy policy that promises never to allow a similar transgression to happen again.)20

So in AOL you were given a fantastic power of pseudonymity that the “codewriters”of real space simplydonotgive.Youcould,of course, try inreal space to live the same range of multiple lives, and to the extent that these lives are not incompatible or inconsistent, you could quite often get away with it. For instance, you could be a Cubs fan during the summer and an operabuff during thewinter.Butunless you take extraordinary steps tohide your identity, in real spaceyouarealways tiedback toyou.Youcannot simply defineadifferent character; youmustmake it,andmore important (anddif- ficult), you must sustain its separation from your original identity.

That is a first featureof theconstitutionofAOL—afeatureconstitutedby its code.A second is tied to speech—what you can say, and where.

Within the limits of decency, and so long as you are in the proper place, youcan say what youwantonAOL.But beyond these limits, speech onAOL is constrained inamore interestingway:notby rules,butby thecharacterof the potential audience. There are places in AOL where people can gather; thereareplaceswherepeople cangoandreadmessagespostedbyothers.But there is no space where everyone gathers at one time, or even a space that everyone must sooner or later pass through. There is no public space where youcouldaddressallmembersofAOL.There isnotownhallor townmeeting wherepeoplecancomplain inpublicandhave their complaintsheardbyoth- ers.There isnospace largeenough forcitizens tocreatea riot.Theownersof AOL,however,canspeak toall.SteveCase, the founderofAOL,used towrite “chatty”letters to themembers as the community’s“townmayor.”21 Case left AOLin2005,andapparentlynoonehas stepped intohis speaker shoes.AOL does still advertise to all its members and can send everyone an e-mail, but only theowners and those theyauthorize candoso.The restof themembers of AOLcan speak to crowdsonlywhere theynotice a crowd—andnever to a crowdgreater than thirty-six (up fromtwenty-threewhen the first editionof this book was published).

This is another featureof theconstitutionof the space thatAOLis,and it too is defined by code.That only twenty-three people can be in a chat room at once is a choice of the code engineers.While their reasons could be many,

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the effect is clear. One can’t imagine easily exciting members of AOL into publicaction,suchaspicketing the latestpricingpolicy.Thereareplaces togo tocomplain,butyouhave to take the trouble togo thereyourself.There isno place where members can complain en masse.

Real space is different in this respect.Much of free speech law is devoted to preserving spaces where dissent can occur—spaces that can be noticed, and must be confronted, by nondissenting citizens.22 In real space there are places where people can gather, places where they can leaflet. People have a right to the sidewalks, public streets, and other traditional public forums. They may go there and talk about issues of public import or otherwise say whatever they want.Constitutional law in real space protects the right of the passionate and the weird to get in the face of the rest. But no such design is built intoAOL.23 As Dawn Nunziato writes,

AOL explains in its Community Guidelines that “like any city, we take pride

in—and are protective of—our community.” Unlike any other city, however,

AOLenjoys theunfettereddiscretiontocensorconstitutionally-protectedspeech

in its discussion forums and other online spaces, including “vulgar language”

(which, it warns, is“no more appropriate online than [it] would be at Thanks-

giving dinner”), “crude conversations about sex,” and “discussions about . . .

illegal drug abuse that imply it is acceptable.”24

This isnot to romanticize thepowerof real-spacepublic forums.(Nor is it topickonAOL:AsNunziato continues,“users seeking strongerprotection for their expression might turn to an ISP other than AOL. They will find, however, similar restrictions on speech imposed by many other major ISPs.”25)We have become such an apolitical society that if you actually exer- cised this constitutionallyprotectedright,peoplewould thinkyouwereanut. If you stood on a street corner and attacked the latest tax proposal in Con- gress, your friendswouldbe likely toworry—andnotabout the taxproposal. There are exceptions—events can make salient the need for protest—but in the main, though real space has fewer controls through code on who can speak where, it has many more controls through norms on what people can saywhere.Perhaps in theendreal space ismuch likeAOL—theeffective space forpublic speech is limitedandoftenunimportant.Thatmaywellbe.Butmy aim here is to identify the feature and to isolate what is responsible for it. And once again, it turns out to be a feature built into the code.

A third feature of AOL’s constitution also comes from its code. This is traceability. While members are within the exclusive AOL content area (in other words,when they’re not usingAOL as a gateway to the Internet),AOL

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can (and no doubt does) trace your activities and collect information about them.What files youdownload,whatareasyou frequent,whoyour“buddies” are—all this is available toAOL.Thesedata are extremelyvaluable; theyhelp AOLstructure its space to fit customerdemand.Butgaining theability tocol- lect these data required a design decision. This decision too was part of the constitution that isAOL—again,apart constitutedby its code. It is adecision that gives some but not others the power to watch.

AOL is not exclusive in this enabling capacity. It shares the power. One wonderful feature of the online space is something called“buddy lists.”Add someone toyourbuddy list,andwhenhecomesonlineyouhear the soundof a creaking door and are notified that he is online. (The “buddy” need not knowhe isbeingwatched, thoughhecan, if heknows,block thewatching.) If that person goes into a chat area and you “locate” him, you will be told in whatchatareahe is.Thispower,giventoordinaryusers,canhavecomplicated consequences. (Imagine sitting at work with your buddy feature turned on, watchingyourspousecomeonline,enterachatarea,and—youget thepoint.) This ability to monitor is built into the space. Individuals can turn it off, at least for a single watcher,but only if they know about it and think to change it.

Considerone final featureof theconstitutionofAOL,closely linkedto the last: commerce.InAOLyoucanbuythings.Youcanbuythingsanddownload them, or buy things and have them sent to your home. When you buy, you buy with a screen name, and when you buy with a screen name,AOL knows (even if no one else does) just who you are. It knows who you are, it knows where you live in real space, and most important, it knows your credit card number and the security it provides.

AOLknowswhoyouare—this is a featureof itsdesign.All yourbehavior on AOL is watched; all of it is monitored and tracked back to you as a user. AOLpromisesnot to collect data about you individually,but it certainly col- lects data about you as part of a collective.And with this collective, and the link it provides back to you, AOL is a space that can better, and more effi- ciently, sell to you.

These four features mark AOL space as different from other places in cyberspace. It is easier for AOL to identify who you are, and harder for indi- viduals to findoutwhoyouare; easier forAOLto speak toall its“citizens”as it wishes, and harder for dissidents to organize against AOL’s views about howthingsought tobe; easier forAOLtomarket, andharder for individuals to hide.AOL is a different normative world; it can create this different world because it is in control of the architecture of that world. Members in that space face, in a sense,adifferent setof lawsof nature;AOLmakes those laws.

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Again,my aim is not to criticize the creation of this world or to say that it is improper. No doubt AOL makes promises to its members that are designed toallay someof the concern that this control creates, andnodoubt if the place became oppressive, the market would provide plenty of alterna- tives.

Rathermyobjective is to impart a senseof whatmakesAOLtheway it is. It is not just written rules; it is not just custom; it is not just the supply and demandof aknowingconsumingpublic.WhatmakesAOLis in largepart the structureof the space.YouenterAOLandyou find it tobeacertainuniverse. This space is constituted by its code.You can resist this code—you can resist howyoufind it, just asyoucanresist coldweatherbyputtingonasweater.But you are not going to change how it is.You do not have the power to change AOL’s code, and there is no place where you could rally AOL members to forceAOL tochange the code.You live life inAOL subject to its terms; if you do not like them,you go elsewhere.

These features of the AOL space have important implications for how it is regulated. Imagine there is a problem on AOL that AOL wants to stop. It wants to prevent or at least control a certain behavior.What tools does AOL have?

First, it has all the tools that any club, fraternity, or“community”might have. It can announce rules for its members (and AOL certainly does).Or it can try to stigmatize the behavior, to use the norms of the community to helpregulate theproblem.ThisAOLdoesaswell.Alternatively, if theproblem comes from the overuse of a particular resource, then the managers at AOL canprice that resourcedifferentlybyexactinga tax toreduce itsusageoradif- ferent price for those who use it too much.

But AOL has something more at hand. If AOL does not like a certain behavior, then inat least somecases it canregulate thatbehaviorbychanging its architecture. If AOL is trying to control indecent language, it can write routines that monitor language usage; if there is improper mixing between adults and kids, AOL can track who is talking to whom; if there is a virus problem caused by people uploading infected files, it can run the files auto- matically throughviruscheckers; if there is stalkingorharassingor threaten- ing behavior,AOL can block the connection between any two individuals.

In short, AOL can deal with certain types of problems by changing its code. Because the universe that AOL members know (while in AOL) is defined by this code,AOL can use the code to regulate its members.

Thinkabit about thepower I amdescribing—andagain, I amnot com- plaining or criticizing or questioning this power, only describing it.As you move through this space that AOL defines—entering a chat area, posting a

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message to a bulletin board, entering a discussion space, sending instant- messages to another person,watching or following other people,uploading ordownloading files fromsites, turning tocertainchannels andreadingcer- tain articles, or obsessively paging through a space looking for pictures of a certain actoror actress—asyoudoanyof these things,AOL is, in an impor- tant sense, there. It is as if the system gives you a space suit that you use to navigate the space but that simultaneously monitors your every move.

In principle, the potential for control is extraordinary. Imagine AOL slowing the response time foracertainkindof service itwants todiscourage, or channeling the surfer throughads that itwants customers to see,or iden- tifyingpatternsof behavior that itsmonitorswouldwatch,basedon the fear that people with patterns like X are typically dangerous to people of typeY. I do not think AOL engages in activities like these, and I am not saying that there would be anything wrong if it did.But it is important to note that the potential for control in this“community”isunlimited—not in the sense that AOL could make life miserable (since people would then leave), but in the sense that it has a regulatory tool that others, in both real space and other cyberspaces, do not. Its power is, of course, checked by the market, but it hasa toolof control thatothers in themarket,butoutsidecyberspace,donot have.

In principle, then, AOL must choose. Every time AOL decides that it wants toregulateacertainkindof behavior, itmust select fromamongat least four modalities—rules, norms, prices, or architecture. And when selecting one of these four modalities, selecting architecture as a regulator will often make the most sense.

Counsel Connect

David Johnson began Counsel Connect (CC) in 1992 as an online lawyers’ cooperative. The idea was simple: Give subscribers access to each other; let them engage in conversations with each other; and through this access and these conversations, value would be created. Lawyers would give and take work; theywouldcontribute ideasas they foundideas in thespace.Adifferent kindof lawpracticewouldemerge—less insular, less exclusive,morebroadly based.

I thought the idea amazing, thoughmany thought it nuts.For a time the system was carried by Lexis; in 1996 it was sold to American Lawyer Media, L.P.; in1997 itmigrated to the Internet, and it closed in1999.26 At its peak, it boasted thousands of subscribers, though it is hard to know how many of them contributed to the discussion online.Most simply watched the discus-

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sions of others,perhaps linking three or four discussion groups of their par- ticular interest,plus a fewof moregeneral interest.Butmany sawtheemerg- ing culture as something amazing and new (for lawyers at least). As its founder,David Johnson,described it,“Thinkof TheWell for lawyers,with its own highly unique evolution, emergence, maintenance, and adaptation.”27

Members got to know each other well.“Inevitably, this led to numerous real world meetings. . . .Of those I attended, it always resemble[d] a get together of long-time acquaintances even though many of us ha[d] not previously met face to face.”28

The discussion was organized into legal topics. Each topic was divided intodiscussiongroups,witheachgroup ledbyadiscussion leader.The leader wasnotamoderator;heor shehadnopower tocancel apost.The leaderwas there to inspireconversation—toinduceothers tospeakbybeingencouraging or provocative.

At itsheight, therewere some90groups in this space.Theposterof apar- ticularmessagemayhavehad it removed,but if theposterdidnot remove it, it stayed—at first in the list of topics being discussed, and later in an archive that could be searched by any member.

Memberspaida fee to joinandget anaccountwith their realnameon it. Postings use members’ real names, and anyone wondering who someone is couldsimply link toadirectory.Membersof CCmustbemembersof thebar, unless they are journalists. Others have no right to access; the community here is exclusive.

Postings in the space look very much like postings in a USENET news- group. A thread could be started by anyone, and replies to a thread were appended to the end. Because messages did not move off the system, one couldeasily read fromthestartof a thread to its end.Thewholeconversation, not just a snippet,was preserved.

These featuresof CCspacewereobviouslydesigned; thearchitects chose to enable certain features and to disable others.We can list here some of the effects of these choices.

First, there was the effect from being required to use your own name. You were more likely to think before speaking and to be careful about being right before saying something definitive.You were constrained by the com- munity,whichwould judgewhat you said,and in this community youcould not escape from being linked to what you said. Responsibility was a conse- quence of this architecture, but so was a certain inhibition. Does a senior partner at a leading law firmreallywant toaskaquestion thatwill announce his ignorance about a certain area of law? Names cannot be changed to pro- tect the ignorant, so they will often simply not speak.

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Second, therewasaneffect fromforcingalldiscussion into threads.Post- ingswerekept together; aquestionwasasked,and thediscussionbegan from the question. If you wanted to contribute to this discussion, you had to first read through theother postingsbefore responding.Of course, thiswasnot a technical requirement—youcertainlyhadachoicenot to read.But if youdid not read through the entire thread, you could well end up repeating what another had said and so reveal that you were speaking without listening. Again, theuseof realnames tiesmembers’behavior to thenormsof thecom- munity.

Third, therewas theeffectof reputation:The reputationyoubuilt in this spacewasbasedonthekindof adviceyougave.Your reputationsurvivedany particular post and was, of course, affected by any subsequent posts. These posts were archived and searchable. If you said one thing about topic X and then theopposite lateron,youwere at least open toaquestionabout consis- tency.

Fourth, there was the effect of tying reputation to a real name in a real community of professionals.Misbehaving here mattered elsewhere.CC thus got thebenefitof that community—itgot thebenefit, that is,of thenormsof a particular community. These norms might have supported relatively pro- ductivecommunitybehavior—moreproductive, that is, than thebehaviorof agroupwhosemembersare fundamentallymixed.Theymightalsohave sup- ported punishing those who deviated from appropriate behavior. Thus, CC got thebenefitof community sanction tocontrol improperbehavior,whereas AOLhad to relyon itsowncontentpolice to ensure thatpeople stayedprop- erly on topic.

We can describe the world of CC that these features constitute in two different ways, just as we can describe the world AOL constitutes in two dif- ferentways.One is the life thatCC’s featuresmadepossible—highlydialogic andengaged,butmonitoredandwithconsequences.Theother is the regula- bilityby themanagerof the life thatgoeson in theCCspace.Andherewecan see a significant difference between this space andAOL.

CC could have used the norms of a community to regulate more effec- tively thanAOL can.CC benefited from the norms of the legal community; it knew that any misbehavior would be sanctioned by that community. There was, of course, less “behavior” in this space than in AOL (you did fewer things here), but such as it was, CC behavior was quite significantly regulated by the reputations of members and the consequences of using their real names.

These differences together had an effect on CC’s ability to regulate its members. They enabled a regulation through modalities other than code.

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Theymadebehavior inCCmoreregulablebynormsthanbehavior inAOLis. CC in turn may have had less control than AOL does (since the controlling norms are those of the legal community), but it also bore less of the burden of regulating its members’behavior.Limiting the population,making mem- bers’ behavior public, tying them to their real names—these are the tools of self-regulation in this virtual space.

But CC was like AOL in one important way: It was not a democracy and neither is AOL. Management in both cases controls what will happen in the space—again,notwithoutconstraint,because themarket isan importantcon- straint.But inneitherplacedo“thepeople”havethepowertocontrolwhatgoes on.Perhaps theydid, indirectly, inCCmore thanAOL,since it is thenormsof “the people” that regulate behavior in CC. But these norms cannot be used against CC directly. The decisions of CC and AOL managers may have been affectedbymarket forces—individualscanexit,competitorscanstealcustomers away.Butvotingdoesn’tdirectwhereAOLgoes,and itdidn’twithCCeither.

That’s not the case with the next cyber-place.At least,not anymore.

LambdaMOO

LambdaMOO is a text-based virtual reality. People from across the world (today close to six thousand of them) link to this space and interact in ways that the spacepermits.The reality is theproductof this interaction. Individ- uals can participate in the construction of this reality—sometimes for upwards of eighty hours a week. For some this interaction is the most sus- tainedhumancontactof their entire lives.Formost it is akindof interaction unmatched by anything else they know.

In the main, people just talk here. But it is not the talk of an AOL chat room.The talk in a MUD is in the service of construction—of constructing acharacter andacommunity.You interact inpartby talking,and this talking is tied toaname.Thisname,andthememoriesof what ithasdone, live in the space, and over time people in the space come to know the person by what these memories recall.

The lifewithin theseMUDsdiffer.ElizabethReiddescribes twodifferent “styles”29—social-style MUD and an adventure or game-style MUD. Social MUDsare simplyonlinecommunitieswherepeople talkandbuildcharacters or elements for the MUD.Adventure MUDs are games,with (virtual) prizes orpower tobewonthroughthedeploymentof skill incapturingresourcesor defeating an enemy. In either context, the communities survive a particular interaction.Theybecomevirtual clubs, thoughwithdifferentpurposes.Mem- bers build reputations through their behavior in these clubs.

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You get a character simply by joining the MOO (though in Lamb- daMOO the waiting list for a character extends over many months).When you join the space, you define the character you will have. At least, you define certain featuresof your character.You select anameandagender (no gender is an option as well) and describe your character.Some descriptions arequiteordinary (JohnnyManhattan is“tall and thin,pale as string cheese, wearing a neighborhood hat”).30 Others, however, are quite extraordinary. (Legba, for instance, is a Haitian trickster spirit of indeterminate gender, brown-skinned and wearing an expensive pearl gray suit, top hat, and dark glasses.)31

Julian Dibbell broke the story of this space to the nonvirtual world in an article in the Village Voice.32 The story that was the focus of Dibbell’s article involvedacharacter calledMr.Bunglewho, it turnsout,wasactually agroup of NYU undergraduates sharing this single identity. Bungle entered a room late one evening and found a group of characters well known in that space. The full storycannotbe toldanybetter thanDibbell tells it.Forourpurposes, the facts will be enough.33

Bungle had a special sort of power. By earning special standing in the LambdaMOO community, he had “voodoo” power: he could take over the voices and actions of other characters and make them appear to do things theydidnot reallydo.ThisBungledid thatnight toagroupof womenandat least one person of ambiguous gender.He invoked this power, in this public space,and tookover thevoicesof thesepeople.Once theywere inhis control, Bungle“raped”these women, violently and sadistically, and made it seem as if they enjoyed the rape.

The“rape”was virtual in the sense that the event happened only on the wires.“No bodies touched,”as Dibbell describes it.

Whatever physical interaction occurred consisted of a mingling of electronic

signals sent fromsites spreadoutbetweenNewYorkCityandSydney,Australia.

. . . He commenced his assault entirely unprovoked at, or about 10 P.M. Pacific

Standard Time. . . . [H]e began by using his voodoo doll to force one of the

room’s occupants to sexually service him in a variety of more or less conven-

tionalways.That thisvictimwasexu. . . .He turnedhisattentionsnowtoMoon-

dreamer . . . forcingher intounwanted liaisonswithother individualspresent in

the room. . . . His actions grew progressively violent. . . . He caused Moon-

dreamer to violate herself with a piece of kitchen cutlery. He could not be

stoppeduntil at last someone summoned Iggy . . .whobroughtwithhimagun

of nearwizardlypowers,agun thatdidn’tkill but enveloped its targets inacage

impermeable even to a voodoo doll’s powers.34

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Rape is adifficultword touse inanycontext,butparticularlyhere.Some will object that whatever happened in this virtual space, it has nothing to do with rape.Yet even if “it”was not“rape,”all will see a link between rape and what happened to these women there. Bungle used his power over these women for his own (and against their) sexual desire; he sexualized his vio- lence and denied them even the dignity of registering their protest.

For our purposes,whether what happened here was really rape is beside thepoint.Whatmatters ishowthecommunity reacted.Thecommunitywas outragedbywhatBunglehaddone,andmany thought something shouldbe done in response.

Theygathered, this communityof membersof LambdaMOO,inavirtual room at a set time, to discuss what to do.Some thirty showed up, the largest meeting the community had known. Some thought that Bungle should be expelled—“toaded,”as it isdescribed,killed forpurposesof theMOO.Others thought that nothing should be done; Bungle was certainly a creep, but the best thing to do to creeps was simply to ignore them. Some called on the Wizards of the space—the creators, the gods—to intervene to deal with this character. The Wizards declined: Their job, they replied, was to create the world; the members had to learn to live within it.

There was really no law that governed what Bungle had done. No real- space law reached sexual pranks like this, and neither did any explicit rule of LambdaMOO.35 This troubled many who wanted to do something. Invoking real-space ideals about fair notice and due process, these people argued that Bunglecouldnotbepunishedforviolatingrules thatdidnotexist at the time.

Two extremes eventually emerged. One side urged vigilantism: Bungle was a miscreant, and something should be done about him. But what shouldn’tbedone, theyargued,was forLambdaMOOtorespondbycreating a world of regulation. LambdaMOO did not need a state; it needed a few goodvigilantes. It neededpeoplewhowouldenforce thewill of the commu- nity without the permanent intrusion of some central force called the state. Bungle shouldbeexpelled,killed,or“toaded”—andsomeonewoulddo it.But only if the group resisted the call to organize itself into a state.

Theother sidepromoted justone idea:democracy.With thecooperation of the Wizards, LambdaMOO should establish a way to vote on rules that wouldgovernhowpeople in the spacebehaved.Anyquestioncouldbemade the subject of a ballot; there was no constitution limiting the scope of what democracy could decide. An issue decided by the ballot would be imple- mented by theWizards.From then on, it would be a rule.

Bothextremeshad theirvirtues,andboth invitedcertainvices.Theanar- chy of the first risked chaos. It was easy to imagine the community turning

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against people with little or no warning; one imagined vigilantes roaming the space, unconstrained by any rules, “toading” people whose crimes hap- pened to strike them as“awful.”For those who took this place less seriously than real space, this compromise was tolerable. But what was tolerable for some was intolerable to others—as Bungle had learned.

Democracy seemed natural, yet many resisted it as well. The idea that politics could exist in LambdaMOO seemed to sully the space. The thought that ideaswouldhave tobedebatedand thenvotedonwas just anotherbur- den. Sure, rules would be known and behavior could be regulated, but it all began to seem like work. The work took something from the fun the space was to have been.

In the end, both happened. The debate that evening wound down after almost threehours.Noclear resolutionhad found itsway in.Buta resolution of sorts did occur.As Dibbell describes it:

It was also at this point,most likely, that TomTraceback reached his decision.Tom-

Tracebackwasawizard,a taciturnsortof fellowwho’d satbroodingonthe sidelines

all evening. He hadn’t said a lot, but what he had said indicated that he took the

crime committed against exu and Moondreamer very seriously, and that he felt no

particular compassion toward thecharacterwhohadcommitted it.Buton theother

handhehadmade it equallyplain thathe took theeliminationof a fellowplayer just

as seriously, and moreover that he had no desire to return to the days of wizardly

intervention. It must have been difficult, therefore, to reconcile the conflicting

impulses churning within him at that moment. In fact, it was probably impossible,

for . . . asmuchashewouldhave liked tomakehimself an instrumentof theMOO’s

collectivewill, [he surely realized thatunder thepresentorderof things]hemust in

the final analysis either act alone or not act at all.

So TomTraceback acted alone.

He told the lingering few players in the room that he had to go, and then he

went. It was a minute or two before 10 P.M. He did it quietly and he did it privately,

but all anyone had to do to know he’d done it was to type the @who command,

which was normally what you typed if you wanted to know a player’s present loca-

tion and the time he last logged in.But if you had run an @who on Mr.Bungle not

too longafterTomTraceback left emmeline’s room,thedatabasewouldhave toldyou

something different.

“Mr_Bungle,” it would have said,“is not the name of any player.”

Thedate,as ithappened,wasAprilFool’sDay,but thiswasno joke:Mr.Bungle

was truly dead and truly gone.36

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When the Wizards saw this, they moved to the other extreme. With no formaldecisionby thecitizens, theWizardscalled forthademocracy.Starting May 1, 1993,37 any matter could be decided by ballot, and any proposition receiving at least twice as many votes for as against would become the law.38

Many wondered whether this was an advance or not. There is a lot to think about in this story, even in my savagely abridged

version.39 But Iwant to focuson the senseof loss that accompanied theWiz- ards’ decision. There is a certain romance tied to the idea of establishing a democracy—Kodak commercials with tearful Berliners as the Wall comes down and all that.The romance is the idea of self-government and of estab- lishing structures that facilitate it. But LambdaMOO’s move to self-govern- ment, through structures of democracy,was not just an achievement. It was alsoa failure.Thespacehad failed. Ithad failed,wecould say, to self-regulate. It had failed to engender values in its population sufficient to avoid just the sort of evil Bungle had perpetrated. The debate marked the passage of the space from one kind of place to another. From a space self-regulated to a space regulated by self.

It might seem odd that there would be a place where the emergence of democracy would so depress people.But this kind of reaction is not uncom- monincyber-places.KatieHafnerandMatthewLyontell a storyof theemer- genceof a“widget”called theFINGERcommandonUNIX,thatwouldallow users to see when the last time another user had been on the computer, and whether she had read her mail. Some thought (not surprisingly, I should think) that this command was something of an invasion of privacy. Whose business was it when I was last at my machine, and why should they get to know whether I have read my mail?

AprogrammeratCarnegieMellonUniversity, IvorDurham,changed the command to give the user the power to avoid this spying finger. The result? “Durhamwas flamedwithoutmercy.Hewascalledeverything fromspineless to socially irresponsible to a petty politician, and worse—but not for pro- tecting privacy. He was criticized for monkeying with the openness of the network.”40

Thevaluesof theUNIXworldweredifferent.Theywerevaluesembedded in thecodeof UNIX.Tochange thecodewas tochange thevalues,andmem- bers of the community fought that change.

So too with the changes to LambdaMOO. Before the balloting, Lamb- daMOOwasregulated throughnorms.These regulationsof social structures were sustained by the constant policing of individual citizens.They were the regulations of a community; the rise of democracy marked the fall of this community.Althoughnormswouldnodoubt survive the establishmentof a

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democracy, their statuswas foreverchanged.Before thedemocracy,a struggle over which norms should prevail could be resolved only by consensus—by certainviewsprevailing inadecentralizedway.Nowsucha struggle couldbe resolved by the power of a majority—not through what a majority did, but through how they voted.

I’ve romanticized this bizarre little world far more than I intended. I do not mean to suggest that the world of LambdaMOO before democracy was necessarilybetter than theoneafter. Iwantonly tomarkaparticular change. LikeCC,andunlikeAOL,LambdaMOOisaplacewherenormsregulate.But unlike CC, LambdaMOO is now a place where members have control over restructuring the norms.

Such control changes things. Norms become different when ballots can overrule them,andcodebecomesdifferentwhenballots canorderWizards to change theworld.Thesechangesmarkamovement fromonekindof norma- tive space to another, from one kind of regulation to another.

Inall threeof thesecyber-places,codeisaregulator.Butthereare important differencesamongthe three.Normshavearelevance inCCandLambdaMOO that they do not in AOL; democracy has a relevance in LambdaMOO that it does not have in CC or AOL.And monitoring has a relevance in AOL that it does not have in LambdaMOO or CC (since neither of the latter two use data about individuals for commercial purposes, either internal or external to the organization).Codeconstitutes these threecommunities;as JenniferMnookin saysofLambdaMOO,“politics[is] implementedthroughtechnology.”41 Differ- ences inthecodeconstitute themdifferently,butsomecodemakescommunity thicker thanothers.Wherecommunity is thick,normscanregulate.

The next space in this survey is also constituted by code, though in this case the“management”has less ability to change its basic architecture. This code isnetcode—aprotocolof the Internet that isnoteasilychangedbyasin- gle user.At least it was not easy for me.

.law.cyber

Hisnamewas IBEX,andnooneknewwhohewas. Iprobablycouldhave fig- ured itout—Ihad thedata to trackhimdown—butafterhedidwhathedid, Ididnotwant toknowwhohewas.Hewasprobablya student in thevery first class about cyberspace that I taught, and I would have failed him, because I was furiousaboutwhathehaddone.Theclasswas“TheLawof Cyberspace”; version one of that class was atYale.

I sayversiononebecauseIhadtheextraordinaryopportunity toteachthat class at three extraordinary lawschools—first atYale, thenat theUniversityof

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Chicago, and finally at Harvard. These were three very different places, with threeverydifferent studentbodies,butonepartof the coursewas the same in each place. Every year a “newsgroup” was associated with the class—an elec- tronic bulletin board where students could post messages about questions raised in the course, or about anything at all. These postings began conversa- tions—threads of discussion, one message posted after another, debating or questioningwhat theearliermessagehadsaid.

These newsgroups constituted what philosophers might call “dialogic communities.” They were spaces where discussion could occur, but where whatwas saidwaspreserved forothers toread,as inCC.Thatwas thedialogic part. The community was what was made over time as people got to know eachother—both in this spaceand inreal space.Oneyear students in theclass andstudentsoutside theclass (whohadbeenwatching the .law.cyberdiscus- sions develop) had a party; another year the students outside the class were invited toattendoneclass.Butover the threeyears,at threedifferent schools, itwas clear that three communitieshadbeenmade.Eachwasbornonapar- ticular date, and each lived for at least a couple of months.

My story here comes fromYale.Yale is an odd sort of law school, though odd inagoodway.It is small and filledwithextremelybrightpeople,manyof whomdonot reallywant tobe lawyers. It fashions itself as a community,and everyone fromthedeanondown(nota“Yale”way todescribe things) strives continuously to foster and sustain this sense of community among the stu- dents. To a large extent, it works—not in the sense that there is perpetual peace,but in the sense thatpeopleeverywhereareawareof this senseof com- munity. Someembrace it,others resist it,but resistance, likeanembrace, says that something is there. One does not resist the community of people on a Greyhound bus.

One extraordinary feature of theYale Law School is“theWall.”TheWall is a place where people can post comments about whatever they want to say. A letter can be posted about gay rights atYale,or a protest aboutYale’s treat- ment of unionized workers. Political messages are posted as well as points about law.Eachpostingmakesadditionalonespossible—either scribbledon the original post or appended underneath the post.

Anextraordinary sign foranyvisitor, theWall is locatedrightat thecenter of the lawschool. In themiddleof a fakeGothic structure isa stonespacewith scoresof papersposted inrandomfashion.Aroundtheposts standwandering students, readingwhatothershave said.This isYale’s speakers’corner, though the speakers are writers, and the writing is substantive. There is little to be gainedontheWall throughrhetoric; togainrespect there,youmust say some- thing of substance.

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One rule, however, governs this space. All postings must be signed; any postingwithout a signature is removed.Originally,nodoubt, the rulemeant that the posting must be signed by the person who wrote it.But because this isYale,wherenorulecanexistwithouta thousandquestions raised,a custom has emerged whereby an anonymous post can be signed by someone not its author (“Signed but not written by X”). That signature gives the post the pedigree it needs to survive on theWall.

Thereasons for this ruleareclear,but so tooare itsproblems.Let’s sayyou want to criticize the dean for a decision he has made. The dean, however sweet, is apowerfulperson,andyoumightwellprefer topost amessagewith- outyournameattachedto it.Orsayyouarea studentwithpolitical views that makeyouanoutsider.Postingamessagewith thoseviewsandyour signature might draw the scorn of your classmates. Free speech is not speech without consequence,andscorn,or shame,orostracismare likelyconsequencesof lots of speech.

Anonymity, then, is a way around this dilemma. With anonymity, you cansaywhatyouwantwithout fear. In somecases, for somepeople, the right to speak anonymously makes sense.

Still,a communitymightwant toresist this right. Justasanonymitymight give you the strength to state an unpopular view, it can also shield you if you post an irresponsible,or slanderous,orhurtful view.Youmightwant toques- tion thepoliciesof thedean,oryoumightwant falsely toaccusea fellowstu- dentof cheating.Bothutterancesbenefit fromanonymity,but thecommunity has good reason to resist utterances like the second.

As far as Iknow,IBEXnever saidanythingon theWall. Instead,he spoke in the newsgroup associated with my class. By design, the newsgroup was open to anyone at Yale who wanted to speak. Unlike the Wall, however, the technologyallowedusers tocall themselveswhatever theywanted.“IBEX,”of course,wasapseudonym.Forpurposesof theWall,apseudonymwas just like anonymous speech—you did not have to use your real name.But in a news- group a pseudonymous posting is quite different from an anonymous post- ing. Over time you can come to know the character of a pseudonym. In the class that year, along with IBEX,we had SpeedRacer,MadMacs,CliffClaven, Aliens, blah, and Christopher Robbin. While members of the class might knowwho theseparticipantswere (weall knewwhoMadMacswas,butonly a few of us knew SpeedRacer), each pseudonym had a character.

Thecharacterof IBEXwasbad; thismuchwasclear fromthestart.Before IBEX appeared, life in the space flourished. At first people were timid, but polite.Brave soulswouldpost an ideaora joke,andconversationwouldcon- tinue around the idea or joke for a bit.After a couple of weeks the conversa-

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tion would become quite intense. Patterns of exchange began. People had questions; others had answers.People stumbled as they spoke,but they were beginning, slowly, to speak.

Some things about how they spoke were immediately noticeable. First, women spoke more in this space than they did in class.Maybe not more in a statistically significant sense, but more.42 Second, helpers quickly developed anddifferentiated fromthosewhoreceived theirhelp.Soonaclassdeveloped online—a real class that identified itself as such and spoke as a class in a way that a teacher dreams of in real space, and in a way I had never known.

WhythishappenedIcouldnot really say.UnaSmithmayhavebeenacat- alyst. I said that I taught this course three times.Each time(withoutmyinter- ventionatall) therewasanUnaSmithparticipating in thenewsgroup.AtYale she was a real person,but afterYale I thought of her as a type.She was always a woman from outside the class; she was always extremely knowledgeable about theNetandaboutUSENET;andshealwayswandered intomy(virtual) class and began telling the others how they should behave. When someone violatedanormof theNet,Unawouldcorrect them.Oftenthis instructionwas not takenterriblywell (thesewere,afterall, lawstudents).Soontheclasswould rally todefend the instructedand tochallengeher todefendher rules.Andof course, expert that she was, she usually had an answer that did defend the rules shehaddictated.Thisexchangesoonbecameafocusof theclass.Unahad drawn their anger,and the class gainedcohesiveness as a result.

About a month and a half into the course, the group reached an apex of sorts. It became the best it would be. I remember the moment well.Early on aspringafternoonInoticed that someonehadposted the first lineof apoem. By the end of the day, without any coordination, the class had finished the poem.Therehadbeenrhythmtotheexchanges;nowtherewasrhyme.Things hummed in the newsgroup, and people were genuinely surprised about this space.

Itwas then that IBEXappeared. I think itwas just afterwehaddiscussed anonymity inclass, somaybehis later claims tohavebeenservingapedagog- ical role were true. But he appeared after one of our classes—appeared, it seemed, just to issueanattackonanothermemberof theclass.Notanattack onhis ideas,butonhim.Soviciousandsoextensivewas this attack thatwhen I read it, I didn’t know quite how to understand it.Could it have been real?

Almost immediately, conversation in the group died. It just stopped.No onesaidanything,as if everyonewereafraid that themonster thathadentered our space would turn his fury on one of them next.Until, that is, the victim responded, with an answer that evinced the wounds of the attack. IBEX’s words had cut.The victim was angry and hurt, and he attacked back.

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But his salvo only inspired another round of viciousness, even more vile thanthe first.With this,othermembersof theclass couldnot resist joining in. IBEXwasattackedbya stringof characters in theclass as cowardly forhiding behind a pseudonym and as sick for what he had said.None of this had any effect. IBEXcameback,againandagain,withanugliness thatwasas extreme as it was unrelenting.

The space had been changed. Conversation fell off, people drifted away. Some no doubt left because they were disgusted with what had happened; others did not want to be IBEX’s next target.There was a brief period of life in the space as people rallied to attack IBEX.But as he came back again and again,each timemorevicious than the last,most simply left. (One timeIBEX came back to protest that he had been wronged; in the week before, he claimed,hehadnotpostedanything,but someonewearing thewhite sheetof IBEXhadposted in IBEX’sname,so thathe, thereal IBEX,hadbeendefamed. The class had little sympathy.)

But it was not just the online class that changed.As we met face to face each week, I felt the atmosphere bend. People felt the creature in the room, thoughnoonecouldbelievehewasa studentat theYaleLawSchool.Thiswas their classmate, hiding behind a smile or a joke in real space, but vicious in cyberspace.Andthevery idea that this evilwashiddenundera smile changed how people felt about smiles.

Somecalled this the“DavidLyncheffect,”anallusion to thedirectorwho portrays the rot of society just under freshly painted façades.We felt in that class the rot of our community just under the surface of smiling and func- tional students. There was a (relatively tame) Jake Baker in our midst. The space had permitted behavior that destroyed community—community that the space itself hadcreated.Communityhadbeencreated inpart throughthe ability to hide—to hide behind a benign pseudonym; to hide hesitation, or editing, in thewriting; tohideyourreaction; tohide thatyouwerenotpaying attention.These anonymities had made the community what it was.But the same anonymity that created the community gave birth to IBEX as well, and thus took the community away.

SecondLi(f/v)e(s)

These fourplaces that Ihave justdescribedwereall described in the first edi- tion of this book, each in just about the same terms.They’re old stories, and the lessons they teach are still precisely the lesson this chapter is meant to convey.But I don’t mean to suggest that there’s been no interesting progress in the cyberspaces that the Internethas inspired.The last five yearshavewit-

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nessed an explosion in cyberspaces, much more dramatic than anything I imagined when I first wrote this book.

In one sense, these spaces are nothing really new. They have fancy new technology that,becausecomputersare fasterandbandwidth isbroader, func- tions much better than their earlier versions. But the MMOG space I described in Chapter 2 was inspired by real places.

What’s changed,however, is size.As JulianDibbelldescribed it tome, the question is

does size matter in these kinds of spaces? And I think it does. The text-based

world is naturally limited in size.The limit is not so much text versus graphics

as it is limited cultural accessibility versus a much broader accessibility. That

makes for larger spaces.43

Theresult is“somethingsocially richer ina lotof ways,”“not somuchthe particular affordances of 3D graphic imagery, which will also someday look pretty crude.”

Massively Multiple Online Role Playing Games (again, MMOGs, or MMORPGs) have become a whole industry. Literally millions spend hun- dreds, sometimes thousandsof hourseachyear in these spacesalongwith lit- erally billions of dollars to live these second lives.While living these second lives, of course, they are also living a life in real space.When they’re playing the MMOG World of Warcraft, they are at the same time playing father or wife in real space.They have thus not left the real world to go to these other places.But they integrate theotherplaces into their realworld life,andthe last five years has seen an explosion in the percentage of real-world life that is lived virtually.

These“games”canbedividedroughly into twotypes. Inone type,people “play”agamethathasbeendefinedbyothers.Theseare“role-playinggames.” Thus,World of Warcraft is a role-playing game in which people compete to gainwealthandstatus (making itnot sodifferent fromreal life).GrandTheft Auto isagameinwhichpeopleengage inakindof virtual crime.Thesegames all havea structure to them,but theydiffer in thedegree towhichpeople can customizeor create theirowncharactersor environments.Thevastmajority of onlinegamesare role-playinggames in this sense.Onesite that tracks these communities estimates 97 percent are role-playing games of some sort.44

The second type involvesmuchmoreconstruction.These spacesprovide communities inwhichpeople at aminimumsocialize. Inaddition to social- izing, there is creative and commercial activity. Depending upon the game, themixamong these activitiesdiffers substantially.But theyall aimtocreate

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avirtualworld that inspires a real communitywithin itself.Thesegamesare an extension of the MOOs I described above. But they extend the virtual community of a MOO beyond those who feel comfortable manipulating text.These worlds are graphically real, even if they are virtual.

Of course,withinbothof these typesof MMOGs, there is creativity.The differences between them are simply a matter of degree. And within both, there is commerce. Second Life—described more below—generates over “$4,000,000U.S. in interpersonal transactions”45 amonth.Aggregatedacross games, as Edward Castronova describes, there is a great deal of commerce produced by these virtual worlds.

“Thecommerce flowgeneratedbypeoplebuyingandsellingmoneyand other virtual items (that is, magic wands, spaceships, armor) amounts to at least $30 million annually in the United States, and $100 million globally.”46

And more interesting (and bizarre) is Castronova’s estimate of the gross nationalproductpercapitaproduced invariousvirtualworlds.EverQuest, for example,hasaGDPwhich is abouthalf thatof“theCaribbeanIslandNation of Dominica.”47 And the GDP per capita of Norrath“was about the same as Bulgaria’s and four times higher than China’s or India’s.”48

For my purposes here, however, I want to focus on the second type of MMOG, and two of these in particular. The first was an early leader in this space—There. The second is a growing and extraordinary success—Second Life.

Second Life is, as its website describes, “a 3-D virtual world entirely built andownedby its residents.”3-D in the sense that the experience seems three dimensional—the characters and the objects appear to be in three dimensions. A virtual world in the sense that the objects and people are rendered by computers. Built by its residents in the sense that Second Life merely provided a platform upon which its residents built the Second Life world. (And not just a few.On any given day,15 percent of Second Life res- idents are editing the scripts that make Second Life run.49 That platform originally rendered beautiful green fields. Residents acquired land in that world, and began building structures.) And owned by its residents in the sense that the stuff that the residents of Second Life build is theirs—both the“physical” thing itself (the car, or the surfboard, or the house), and any intellectual property rightwhichmightbe embedded in that thing that they have built.

It is this last feature that contrasts most interestingly (for me at least) with theotherMMOGthat Imentioned,There.Therewasalsoacommunity site. But it was a radically different (and less successful) world from Second Life. It was to be centered around corporate franchises—Sony or Nike, for

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example,wereexpected tosetupshop inThere.Peoplewouldalsobeallowed tocreate things inThere,andwhenthey soldorgave themaway,Therewould get apercentage.The space itself camemuchmorepre-fab,but therewas sig- nificant opportunity for customization.

Its founders crafted the rhetoric of There at least around (at least their understanding of) the ideals of the United States. The exchange rate for There-buckswas1787 to1—1787being theyear theUnitedStatesConstitu- tion was written. And as the then-CEO of There explained to a class I was teaching, the values of theAmerican republic informed the values of There.

Mystudentswere skeptical.Andone fantasticallybright student,Cather- ine Crump, gave the CEO a bit of a rough ride. She asked whether There wouldrespect theprinciplesof theFirstAmendment.“Of course,”responded theCEO.“Wouldacitizenof Therebeallowed toputa signonhis land?”“Of course.”“Would she be allowed to buy land next to, say, Nike?”“Of course.” “Would she be allowed to put a sign up on her land next to Nike that says ‘Nike uses sweatshop labor’?”“Umm. I’m not sure about that.”So much for the FirstAmendment.

Or more relevantly to Second Life, Crump asked, “Who owns the IP [intellectual property] in the designs a citizen creates?”“There does.”“Who owns the IP in thedesignsNikecreates?”“Of course,Nikedoes.Howcould it beanyotherway?”Well, it couldbeanotherway if you followedtheprinciples of the American Constitution, Crump suggested, which said IP rights get vested in“authors or inventors,”not in corporations.

There’s real problem, however, was structural. It is the same problem of anyplannedorcentralizedeconomy.Therewas tobebuiltbyThere, Inc.And thereinwas its problem.The structuresof these virtualworlds are extraordi- narily complex. The cost of building them is immense, and thus There, Inc. faced a huge capital cost in making There run.

SecondLife (likeallnewnations)outsourced that costof construction to its citizens. When you buy land in Second Life, you get an empty field or deserted island. You then have to buy, barter, or build to make it habitable. There’s aneconomytobuilding it,and it canbehardwork.But the thingsyou build you can sell. And again, the designs you make are yours. More than 100,000 people now inhabit, and construct, Second Life.For them, the game is what it says.

These current rules, however, are the product of an evolution in Second Life. In the first public Alpha testing of the site that would become Second Life, there was no concept of land ownership. Everything was public. The ownership of land began with Beta testing, when all users could claim the public land at a price. When the land was claimed, the user could select

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whether others could create objects, scripts,or landmarks for the land.Later the options were extended.

In version 1.1, there was a fairly major change to the physics of land. Whereas before users were free to teleport anywhere, now, to avoid harass- ment, owners of land could decide whether others could“trespass”or not— eitherby settingadefault tograntordenyaccess,orbyaddinga listof people whowere free tovisit.These restrictions,however,appliedonly to the first 15 meters above the property. Beyond that, anyone was free to fly, even if the owner didn’t want them on the property.

Nowthis last restrictionhasan interestingparallel to thehistoryofAmer- ican law.As I describe in Free Culture,50 property law in the American tradi- tionconsidered theownerof landtheownerof the space fromtheground“an indefinite extent,upwards.”51 This createdanobviousconflictwhenairplanes appeared.Did the pilot of an airplane trespass when he flew over your land?

The accommodation the law eventually drew was between flying very lowandflyingveryhigh.Itwasnot trespassing to flyveryhighover someone’s land; itwasanuisance to fly very lowover someone’s land.So something like the solution that Second Life achieved was also achieved by the law.

Butnotice the importantdifference. In real space, the lawmeansyoucan be penalized for violating the “high/low” rule. In Second Life, you simply can’t violate the15-meter rule.Therule ispartof thecode.Thecodecontrols howyouare inSecondLife.There isn’t achoiceaboutobeying theruleornot, any more than there’s a choice about obeying gravity.

So code is lawhere.That code/lawenforces its controldirectly.Butobvi- ously, this code (like law)changes.Thekey is to recognize that this change in the code is (unlike the laws of nature) crafted to reflect choices and values of the coders.

Consider another illustration of the same point. As I said, Second Life gives the creators of Intellectual Property in Second Life ownership of that property—both inside and outside Second Life.52 (As one of the founders described,“Our lawyers shook their heads, but we decided the future of our company isn’t tied up in our owning what our users create.”53) That’s the samewith IP in real space:Unless you’ve signedyour rights away toa corpo- ration(don’t!),whenyoucreate in real space, the lawautomaticallygivesyou a copyright in your creativity. In both spaces, too, you have the right to give those rights away. I run a nonprofit called Creative Commons that makes it simple forcreators to signal the freedomstheywant to runwith their creativ- ity. In real space,when you use a Creative Commons license, you mark your content with the license you want.Users then know the freedoms they have. If a right is violated, it gets remedied through the law.

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Second Life has taken this idea one step further.Creators in Second Life can mark their content with the license they want. But the wizards of this world are exploring the idea that the license they’ve selected could affect directly what others can do with that creativity. If content is marked with a Creative Commons license, then someone can take a picture of it without express permission. But if it is not marked with a license, then if you try to takeapictureof it, theobjectwill be invisible.Here again, the codeexpresses the law more effectively than the law in real space ever could.

The Internet

As I said, we can distinguish cyberspace from the Internet. But the point of this chapter,howeverclearwithrespect tocyberspace, is still trueof the Inter- net.Therearearchitectural featuresof the Internet that embedcertainvalues. Those features can also change, and if they do, the values the Internet pro- motes will be different.

The most significant example of this is one I only mentioned in the first edition of this book,but which was at the center of The Future of Ideas.This is the“end-to-end”principle described by network architects Jerome Saltzer, DavidClark,andDavidReed in1981.54 Theend-to-end(“e2e”)principle is a design philosophy about how networks should be built. It counsels that a networkshouldbekeptas simpleaspossibleandthat the intelligencerequired inanetworkbevested in theedge,orendsof anetwork,at least so faras that’s possible.

As I’vealreadydescribed, the Internet embodied thisprinciplebykeeping the functionality of TCP/IP focused quite narrowly—that is, on the single function best-efforts delivery of packets of data. What those packets do, or whothey’remeant for, isnotaconcernof theprotocol. Justdeliveringpackets is the end.

Oneconsequenceof thisdesign, then, is thatpeoplecan innovate for this networkwithoutanyneedtocoordinatewithanynetworkowner. If youwant todevelopanapplication todeliver voice across IP, thenall youneed todo is to write the application to use the TCP/IP protocols to send data across the network in a way that will make your application run.

This design embeds a value that encourages innovation in applications for thenetwork. It does sobothbecause itminimizes the costs of developing newapplications (you don’t need thehassle of askingor clearing permission with anyone) andbecause it avoids strategic behavior by thenetwork owner. Consideragain the ideaof developingaVoice-over-IPapplication. If thenet- work is ownedby the telephonecompanies, theywouldnotbe excitedabout

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an application that will cannibalize their telephone market.Thus, if permis- sionwere requiredbefore theVOIPapplicationcouldbedeployed,wemight well expect theVOIP application not to be deployed—either because some- onedeveloped it,but itwasblocked,orbecause smartdevelopersknewitwas awasteof time todevelop it,because itwouldbeblocked.AsSusanCrawford describes, “The miraculous growth of the Internet has in large part come fromthenondiscriminationagainsthigher levels. . . . Innovatorsat theappli- cation layer have been able to assume the continued stable existence of the lower layers.”55

The value here is innovation and competition. The network empowers the widest range of innovators—users of the network—and entitles all of them to innovate for this network. Any innovation can be deployed on the network (so longas it respects theTCP/IPprotocols). If usersof thenetwork like the innovation, then the innovation is a success.

Simultaneously—at least so long as the e2e principle is respected—this design disables the potentially most powerful actor in the network, the net- workowner, frominterferingwith theopportunity for innovationwithin the network.Thenetworkownermightnot like thestuff beingdeveloped,bute2e disables the opportunity to block that development.

In the same way that the original TCP/IP network could be effectively changedso that“gaps”in informationabout thatnetworkcouldbeclosed, the TCP/IP network could be changed to remove its e2e character. Indeed, the very tools that I described in Chapter 4 couldhave this effect.For example, a network owner could scan the packets that were traveling across its network and block any packet that didn’t come from a known, or approved, applica- tion.Togeton that list,applicationdeveloperswouldhave tocontact thenet- work owner and ask to be included on the list. That change to the way the Internet functions is completely technically possible. Indeed, versions of it are being pursued for both competitive and security reasons. That is, some networks,keen tocontrol thekindof applications that runonthenetwork for competitive reasons, could use this to block disfavored applications (again, think of telephone companies blockingVOIP).Others,keen to avoid viruses orother troubleon theirnetwork,could simplydecide toblockeverything to make life simple.Either reason would produce the same result: that innova- tion on the Internet would be stifled.

As with the stories about “cyberspace,” this case about the Internet also demonstrates the linkbetweenarchitectureandpolicy.End-to-end is apara- digmfor technology that embedsvalues.Whicharchitectureweencourage is a choice aboutwhichpolicyweencourage.This is true even in the context in which the Internet isnota“place”—evenwhere, that is, it is“just”amedium.

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HOW ARCHITECTURES MATTER AND SPACES DIFFER

Thespaces Ihavedescribedherearedifferent. In someplaces there is commu- nity—asetof norms thatare self-enforcing(bymembersof thecommunity). Features suchasvisibility (asopposed toanonymity)andnontransiencehelp create those norms; anonymity, transience, and diversity make it harder to create community.

Inplaceswherecommunity isnot fully self-enforcing,normsare supple- mented by rules imposed either through code or by the relevant sovereign. These supplementsmay further somenormativeend,butat times theycanbe in tension with the goal of community building.

If wehadtosimplify thisdiversityof spacesby findingadimensionalong which we could rank them, one such dimension might be each group’s amenability to control. Some groups on this list can be controlled only through norms—.law.cyber, for example. The only technology for changing behavior there—given my commitment not to monitor and punish bad behavior—was the norms of the students in the law school class. Other groups are amenable to other technologies of control. Indeed, as we move from .law.cyber to CC to LambdaMOO toAOL to Second Life, the ability to use theseother technologiesof control increases, though,of course, that abil- ity is constrained by competition. If the code makes the place no longer attractive,people will leave.

Thus, in CC and AOL, the architects could use technology to change behavior.But if thechange is too far removedfromwhatmostmembers think the space is about, members may simply leave. The threat of that constraint turns upon the alternatives, of course.As blogs have flourished, a space like CC would have relatively little market power. AOL’s market power is more complicated. There are many alternative ISPs, of course. But once you’re a member of one, the costs of migrating are significant.

In LambdaMOO the story is even more complicated. Nothing really binds people to a particular MOO. (There are hundreds, and most are free.) Butbecausecharacters inaMOOareearnedrather thanbought,andbecause this takes time and characters are not fungible, it becomes increasingly hard formembersof a successfulMOOtomoveelsewhere.Theyhave the right to exit, but in the sense that Soviet citizens had the right to exit—namely,with none of the assets they had built in their particular world.

Finally, Second Life offers the potential for the most control.Code regu- lates experience in Second Life more than in any of the other four spaces, and the intimacyof experience inSecondLifepullspeople into the spaceand makesescapecostly.Again, thereare limits to thecontrol,but thecontrols are

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more finely articulated here than in any of the other contexts.And if Philip Rosedale, theCEOof SecondLife, is tobebelieved, thecontrol throughcode here will only become more subtly expressed.As he described to me:

[O]ur feeling is . . . thatweshouldaggressivelymove intocodeanythingwecan,

becauseof theenhancedscalability it givesus.Andweshouldexecutepolicyout-

side of code only when absolutely necessary or unfeasible. There are things

where we look at them and we say,“Well,we’ll be able to do that in code some

day,but for today,we’re just going to do it by hand.”56

REGULATING CODE TO REGULATE BETTER

I’ve surveyeda rangeof cyberspaces tomakeclear the elementsof regulation within each. One increasingly important element is code. In cyberspace in particular, but across the Internet in general, code embeds values. It enables, or not, certain control.And as has been the focus of this part, it is also a tool of control—not of government control, at least in the cases I’ve surveyed— but instead control to the end of whatever sovereign does the coding.

These stories suggest a technique, and once we see the idea, we’ll recog- nize the technique inmanydifferentcontextsof regulation.If SecondLifecan usecode tobetter controlbehavior,whatabout first-life? IfAOLcanusecode to better control fraud, what about America off-line? If the Internet can use thedesignof e2e tobetterenablecompetition,whatdoes that teachregulators on the ground? How do these techniques of policy inform the practice of policy makers?

The answer is that policy makers have done the same in real space for a long time.Just asChapter5describedregulatorsusingcode tomakebehavior more regulable, so toohave regulatorsusedcode todirectly controlbehavior. Consider a few obvious examples:

Tapes

The most significant feature of digital media is that copies can be perfect. Digital media is just data, and data is just a string of 1’s and 0’s. Computers have complex algorithms to verify that when they’ve copied a string of data they’ve copied that string precisely.

This feature thus creates a new risk for sellers of content.While the code of analogcopying technologymeant thatacopywasadegradedversionof the original, thecodeof digital technologiesmeans that acopycouldbe identical

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to the original. That means the threat to content providers from“copies” is greater in the digital world than in the analog world.

Digital Audio Technology (DAT) was the first technology to expose this risk. Like any digital recording, it can, in principle, copy content perfectly. Content providers were thus terrified that piracy from DAT tapes would destroy their industry, so they lobbiedCongress effectively toaddnewlaws to protect them from the digital threat.

Congress could have responded to their request in any number of ways. It couldhaveused lawto regulatebehaviordirectly,by increasing thepenalty for illegal copying. It could have funded a public ad campaign against illegal copying or funded programs in schools to discourage students from buying piratededitionsof popular recordings.Congress couldhave taxedblank tapes and then transferred the revenue to owners of copyrighted material.57 Or Congress could have tried to regulate DAT technology to weaken the threat that technology presented for copyright.

Congress chose the latter two.TheAudioHomeRecordingActboth taxed blank tapes slightly and regulated the code of digital reproduction technolo- giesdirectly.TheAct requiresproducersof digital recordingdevices to install a chip in their systems that implements a code-based system to monitor the copies of any copy made on that machine.58 The chip would allow a limited numberof personal copies,butoncopiesof copies, thequalityof the record- ing would be degraded.Congress in essence required that the code of digital copying be modified to restore the imperfections that were “natural” in the earlier code.

This again is Congress regulating code as a means of regulating behav- ior—mandating thatmultiplecopiesbe imperfectasaway tominimize illegal copying.Like the telephoneregulation, this regulationsucceedsbecause there are relatively fewmanufacturersof DATtechnology.Again,givena limited tar- get, thegovernment’s regulationcanbeeffective,andtheeffectof thegovern- ment’s regulation is to make more regulable the primary targeted behavior—copyright infringement.

Televisions

Bythemid-1990s,parents’concernabout theeffect thatviolenceontelevision has on their kids had caught the attention of Congress, and Congress responded through legislation.Butgiven the stateof FirstAmendment law, it wouldhavebeendifficult forCongress toblockviolenceontelevisiondirectly. Thus, Congress sought a way to block violence on television indirectly. It sought to require that thosebroadcasting televisioncontent tag their content

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with labels that signaled the level of violence in the film, and it mandated that the television industry develop a technology to block content on the basis of those labels.

Thiswas the“V-Chip,”mandatedaspartof theTelecommunicationsAct of 1996.59 The V-chip would facilitate the automatic blocking of television broadcasts, based on criteria of content that have not yet been completely determined.Thecrudestproposals involve something like theMotionPicture Association’smovie rating system; themore sophisticatedenvisionselections based on a much richer set of factors.

This again isCongress regulatingcode toaffect a targetedbehavior (pro- viding violent programming) rather than regulating that behavior directly. The constraint on direct regulation here is similarly a regulability problem. But the lack of regulability in this context comes from constitutional limits, not the inability to track those being regulated by the technology. The con- straint of the Constitution thus pushed Congress to require technology to empower parents. By giving parents more power to discriminate, Congress indirectly discourages an ill (exposure to violence) that it is constitutionally unable to regulate directly.60

Anti-Circumvention

Whatever problem the content industry had with DAT tapes, no doubt they look tiny compared with the problems the content industry has with digital content and the Internet. Although DAT makes perfect copies possible, it doesn’t make distributing those perfect copies any easier. That honor fell to the Internet. Now digital technology not only assured perfect copies of the original, it also made it trivial to distribute those digital copies for free.

As Idescribemore inChapter10,oneresponse to this“feature”of digital technologies is “digital rights management” technology. DRM technologies addcode todigital content thatdisables the simple ability to copyordistrib- ute that content—at leastwithout the technicalpermissionof theDRMtech- nology itself.

Thus, the songs I’ve purchased and downloaded from Apple’s iTunes music store are protected by Apple’s “fairplay”DRM technology. That tech- nology permits me to copy the song to a limited number of machines,but it restricts my ability to copy those songs broadly.

This restriction is effected throughcode.The“copy”function isproduced through code; the DRM technology modifies, or qualifies, that“copy” func- tionality. It is thusaclassic exampleof codebeingdeployed torestorecontrol over something that (different) code had disabled.

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These systems of DRM are privately created. But in 1998, they got an important subsidy of protection from Congress. In the Digital Millennium CopyrightAct,Congressbannedthecreationanddistributionof technologies “produced for the purpose of circumventing a technological measure that effectively controls access” to a copyrighted work, or“primarily designed or produced for thepurposeof circumventingprotectionaffordedbya techno- logical measure that effectively protects a right of a copyright owner.”61 By banning this code, Congress aimed to add support to the code content cre- ators were distributing to protect their content. Thus, by directly regulating code,Congress indirectly regulated copyright infringement.

Since this enactment, there has been no end to trouble and litigation surrounding it. Beginning in 1999, the DVD-Copy Control Association began suing individuals and websites that facilitated access to a program, DeCSS, which could be used to decrypt data on DVDs.62 In July 2001, 27- year-old Russian programmer Dmitry Sklyarov was arrested while giving a presentation in Las Vegas because the company he worked for in Russia hadproduced software that enabledpeople to circumvent the accessprotec- tion technologies built into Adobe’s eBook system.63 Sklyarov spent six months in anAmerican jail before he was permitted to return to his family in Russia.

The effect of this regulation is hard to measure. The Electronic Frontier Foundationhascataloged itsviewof the law’seffect fiveyearsafter the lawwas enacted.64 And while the EFF’s view may not be universal, there is a fairly universal surprise at the range of cases that have been brought under the statute. (I doubt the framers of the DMCA imagined that garage door com- panieswouldbe suing toprotect their automaticdooropeners fromcompe- tition under the DMCA (they lost).65)

Broadcast Flags

As broadcast television moves to digital television, copyright holders have becomeconcernedabout the risk they face inbroadcastingcopyrightedcon- tent.Unlikeanordinary televisionbroadcast, thequalityof adigitalbroadcast is perfect, so copies of digital broadcasts could likewise be perfect. And the spread of perfect copies of digital broadcasts on a free digital network (the Internet) terrifies copyright holders.

Their response is similar to the response with DAT technologies.First in the FCC, and now in Congress, copyright holders have pushed the govern- ment to mandate that any technology capable of reproducing digital broad- casts be architected to respect a “broadcast flag.” If that flag was turned on,

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then the technology would be required to block any copy of that content. The content could be played, but it couldn’t be reproduced.As Susan Craw- ford describes it,

The broadcast flag rule, distilled to its essence, is a mandate that all consumer

electronics manufacturers and information technology companies ensure that

anydevice that touchesdigital televisioncontent“recognizedandgiveeffect to”

the flag by protecting content against unauthorized onward distribution. The

FCC claimed that the rule would protect digital television (“DTV”) broadcasts

from massive redistribution over the Internet.66

There is a lot to say about the broadcast flag, and if I were doing the say- ing, most of it would be bad.67 But for our purposes, it is the form,not sub- stance, of the broadcast flag that is relevant.This is the most direct example of a regulation of code designed to control primary behavior: law regulating code to make behavior better.

{TXB2} In each case, the government directs an intermediary that has some power over code to change that code to effect a change in behavior. Whether that change incodewill effect achange inbehaviordependsuponthepowerof the particular application. If the application is a MOO, or an online discussion space like Counsel Connect, the power to control behavior is significantly limited.If theapplication isAOLorSecondLife, theexit costs forausercould well be higher. The scope for effective regulation will thus be greater.And if the application is the Internet,or any digital technology produced or sold in the United States, then the power of the regulator is greater still. Code becomes law even if there remains a capacity to escape the regulation of that code.

These examples point to a general question about how regulation will function. That general point requires many significant qualifications. To understand the effect of code requirements on any regulatory policy will require, as Polk Wagner writes, an understanding that is “profoundly dynamic.”68 Part of that dynamic,of course, is resistance. Individuals can act to resist the forceof codedirectly.Or individuals canact to resist the forceof code throughcode.AsTimWuhas rightlydescribed,code itself isnotneces- sarily regulationenhancing—codecanbeusedto foil regulation.Agunisabit of code. It works wonders to destroy the peace.Circumvention technologies are code. They weaken rules reinforcing control. P2P filesharing protocols are code. They undermine the effectiveness of copyright regulations that restrict the freedom to distribute copyrighted works. Whether a particular

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regulationwill beeffective, then,requires considerationof these interactions, and any code-based resistance it might engender.AsWu puts it,

The reason that codematters for lawat all is its capability todefinebehavioron

a mass scale. This capability can mean constraints on behavior, in which case

coderegulates.But it canalsomeanshapingbehavior into legally advantageous

forms.69

In this secondsense,code functions“as ananti-regulatorymechanism:a tool to minimize the costs of law that certain groups will use to their advan- tage.”70

More fundamentally, these complications suggest that a more general framework is needed. I’ve highlighted an interaction between technology, policy, and the law in this chapter.That interaction suggests a much broader model. In the next chapter, I describe that model. In the chapter following that,we will return to the dynamic of code regulation to consider one other important qualification.

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S E V E N

w h a t t h i n g s r e g u l a t e

JOHN STUART MILL WAS AN ENGLISHMAN. HE WAS ALSO ONE OF THE MOST influential political philosophers in America. His writings ranged from importantworkon logic toa still striking text about sexual equality,The Sub- jection of Women. But perhaps his most important continuing influence comes from a relatively short book titled On Liberty. Published in 1859, this powerful argument for individual liberty anddiversityof thought represents an importantviewof liberal and libertarian thinking in the secondhalf of the nineteenth century.

“Libertarian,”however,has a specific meaning for us.For most, it associ- ates with arguments against government.1 Government, in the modern liber- tarian’s view, is the threat to liberty; private action is not. Thus, the good libertarian is focused on reducing government’s power. Curb the excesses of government, the libertariansays,andyouwill ensure freedomforyoursociety.

Mill’s viewwasnot sonarrow.Hewasadefenderof libertyandanoppo- nentof forces that suppressed it,but those forceswerenotconfinedtogovern- ment. Liberty, in Mill’s view, was threatened as much by norms as by government,asmuchbystigmaand intoleranceasby the threatof statepun- ishment. His objective was to argue against these private forces of coercion. His work was a defense against liberty-suppressing norms, because, in Eng- land at that time, these were the real threat to liberty.

Mill’s method is important, and it should be our own as well. It asks, What is the threat to liberty,andhowcanweresist it? It isnot limited toask- ing,What is the threat to liberty fromgovernment? Itunderstands thatmore than government can threaten liberty, and that sometimes this something morecanbeprivate rather thanstateaction.Millwasnotconcernedwith the source of the threat to liberty.His concern was with liberty.

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Threatstolibertychange.InEngland,normsmayhavebeenthethreattofree speechinthelatenineteenthcentury;I takeit theyarenotasmuchathreattoday. IntheUnitedStates inthefirst twodecadesof thetwentiethcentury,thethreatto free speech was state suppression through criminal penalties for unpopular speech;thestrongprotectionsof theFirstAmendmentnowmakethatparticular threat less significant.2 The labor movement was founded on the idea that the market is sometimesa threat to liberty—notsomuchbecauseof lowwages,but becausethemarketformoforganizationitselfdisablesacertainkindof freedom.3

Inothersocieties,atother times,themarket isakey to liberty,not theenemy. Thus,rather thanthinkof“liberty’senemy”intheabstract,weshouldfocus

upon a particular threat to liberty that might exist in a particular time and place.And this is especially true when we think about liberty in cyberspace. I believe thatcyberspacecreatesanewthreat to liberty,notnewinthesense that notheoristhadconceivedof itbefore,4butnewinthesenseofnewlyurgent.We are coming tounderstandanewlypowerful regulator in cyberspace.That reg- ulatorcouldbeasignificant threat toawiderangeof liberties,andwedon’tyet understandhowbest tocontrol it.

Thisregulator iswhatIcall“code”—theinstructionsembeddedinthesoft- wareorhardware thatmakescyberspacewhat it is.Thiscode is the“built envi- ronment”of social life incyberspace.It is its“architecture.”5Andif inthemiddle of thenineteenthcenturythethreat to libertywasnorms,andat thestartof the twentieth itwasstatepower,andduringmuchof themiddletwentieth itwasthe market, then my argument is that we must come to understand how in the twenty-first century it is adifferent regulator—code—that shouldbeour cur- rent concern.

But not to the exclusion of other significant“regulators.”My argument is not that there’s onlyone threat to liberty,or thatwe should forgetother,more traditional threats. It is instead thatwemustaddonemore increasingly salient threat to the list.And to see this new, salient threat, I believe we need a more general understanding of how regulation works—one that focuses on more than the single influence of any one force such as government, norms, or the market,and instead integrates these factors intoa single account.

This chapter is a step toward that more general understanding.6 It is an invitationto thinkbeyondthe threat to liberty fromgovernmentpower.It is a map for thismoregeneralunderstanding.

A DOT’S LIFE

There are many ways to think about “regulation.” I want to think about it from the perspective of someone who is regulated,or,what is different, con-

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strained. That someone regulated is represented by this (pathetic) dot—a creature (youorme)subject todifferent regulations thatmighthave theeffect of constraining(oraswe’ll see,enabling) thedot’sbehavior.Bydescribing the various constraints that might bear on this individual, I hope to show you something about how these constraints function together.

Here then is the dot.

How is this dot“regulated”? Let’s start with something easy: smoking. If you want to smoke, what

constraintsdoyouface?What factors regulateyourdecision tosmokeornot? Oneconstraint is legal. In someplacesat least, laws regulate smoking—if

you are under eighteen, the law says that cigarettes cannot be sold to you. If you are under twenty-six, cigarettes cannot be sold to you unless the seller checks your ID. Laws also regulate where smoking is permitted—not in O’Hare Airport, on an airplane, or in an elevator, for instance. In these two ways at least, laws aim to direct smoking behavior.They operate as a kind of constraint on an individual who wants to smoke.

But lawsarenot themost significant constraintson smoking.Smokers in the United States certainly feel their freedom regulated, even if only rarely by the law.There are no smoking police, and smoking courts are still quite rare. Rather, smokers in America are regulated by norms. Norms say that one doesn’t light a cigarette in a private car without first asking permission of the other passengers. They also say, however, that one needn’t ask permission to smoke at a picnic. Norms say that others can ask you to stop smoking at a restaurant,or thatyouneversmokeduringameal.Thesenormseffectacertain constraint, and this constraint regulates smokingbehavior.

Lawsandnormsare stillnot theonly forces regulating smokingbehavior. Themarket is alsoaconstraint.Thepriceof cigarettes is a constraintonyour ability to smoke—change theprice,andyouchange this constraint.Likewise with quality. If the market supplies a variety of cigarettes of widely varying quality and price, your ability to select the kind of cigarette you want increases; increasing choice here reduces constraint.

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Finally, thereare theconstraints createdby the technologyof cigarettes,or by the technologies affecting their supply.7 Nicotine-treated cigarettes are addictiveandthereforecreateagreater constraintonsmoking thanuntreated cigarettes.Smokeless cigarettespresent lessof aconstraintbecause theycanbe smoked inmoreplaces.Cigaretteswitha strongodorpresentmoreof a con- straintbecause theycanbe smoked in fewerplaces.Howthecigarette is,how it is designed, how it is built—in a word, its architecture—affects the con- straints faced by a smoker.

Thus, four constraints regulate this pathetic dot—the law, social norms, the market, and architecture—and the“regulation”of this dot is the sum of these four constraints. Changes in any one will affect the regulation of the whole. Some constraints will support others; some may undermine others. Thus,“changes in technology [may]usher in changes in . . .norms,”8 and the other way around. A complete view, therefore, must consider these four modalities together.

So think of the four together like this:

In this drawing, each oval represents one kind of constraint operating onourpatheticdot in thecenter.Eachconstraint imposes adifferentkindof cost on the dot for engaging in the relevant behavior—in this case, smoking. The cost from norms is different from the market cost, which is different fromthecost fromlawandthecost fromthe(cancerous)architectureof cig- arettes.

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The constraints are distinct, yet they are plainly interdependent. Each can support or oppose the others. Technologies can undermine norms and laws; they can also support them. Some constraints make others possible; others make some impossible.Constraints work together, though they func- tiondifferentlyandtheeffectof each isdistinct.Normsconstrain throughthe stigma that a community imposes; markets constrain through the price that theyexact; architectures constrain throughthephysicalburdens they impose; and law constrains through the punishment it threatens.

We can call each constraint a “regulator,” and we can think of each as a distinctmodalityof regulation.Eachmodalityhasacomplexnature,and the interactionamongthese four isalsohard todescribe. I’veworkedthroughthis complexity more completely in the appendix. But for now, it is enough to see that theyare linkedandthat, ina sense, theycombine toproduce the reg- ulation to which our pathetic dot is subject in any given area.

We can use the same model to describe the regulation of behavior in cyberspace.9

Lawregulatesbehavior incyberspace.Copyright law,defamation law,and obscenity laws all continue to threaten ex post sanction for the violation of legal rights.Howwell lawregulates,orhowefficiently, is adifferentquestion: Insomecases itdoes somoreefficiently, in somecases less.Butwhetherbetter ornot, lawcontinues to threatenacertainconsequence if it isdefied.Legisla- tures enact;10 prosecutors threaten;11 courts convict.12

Normsalso regulatebehavior incyberspace.TalkaboutDemocraticpol- itics in thealt.knittingnewsgroup,andyouopenyourself to flaming;“spoof” someone’s identity in aMUD,andyoumay findyourself “toaded”;13 talk too much in a discussion list, and you are likely to be placed on a common bozo filter. In eachcase,a setof understandings constrainbehavior,again through the threat of ex post sanctions imposed by a community.14

Markets regulate behavior in cyberspace. Pricing structures constrain access, and if they do not, busy signals do. (AOL learned this quite dramati- callywhen it shifted fromanhourly toa flat-ratepricingplan.)15 Areasof the Webarebeginning tocharge foraccess,asonline serviceshave for sometime. Advertisers rewardpopular sites;online servicesdrop low-population forums. Thesebehaviorsareall a functionof market constraintsandmarketopportu- nity. They are all, in this sense, regulations of the market.

Finally, an analog for architecture regulates behavior in cyberspace— code.Thesoftwareandhardware thatmakecyberspacewhat it is constitutea setof constraintsonhowyoucanbehave.The substanceof these constraints mayvary,but theyareexperiencedasconditionsonyouraccess tocyberspace. In some places (online services such as AOL, for instance) you must enter a

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passwordbeforeyougainaccess; inotherplaces youcanenterwhether iden- tified or not.16 In some places the transactions you engage in produce traces that link the transactions (the “mouse droppings”) back to you; in other places this link is achievedonly if youwant it tobe.17 In someplaces youcan choose to speaka language thatonly the recipient canhear (throughencryp- tion);18 inotherplaces encryption isnotanoption.19 Thecodeor softwareor architectureorprotocols set these features,whichare selectedbycodewriters. They constrain some behavior by making other behavior possible or impos- sible. The code embeds certain values or makes certain values impossible. In this sense, it too is regulation, just as thearchitecturesof real-space codes are regulations.

As inreal space, then, these fourmodalities regulatecyberspace.Thesame balanceexists.AsWilliamMitchellputs it (thoughheomits theconstraintof the market):

Architecture, laws, and customs maintain and represent whatever balance has

beenstruck in real space.Asweconstruct and inhabit cyberspacecommunities,

we will have to make and maintain similar bargains—though they will be

embodied in software structures and electronic access controls rather than in

architectural arrangements.20

Laws,norms, themarket,andarchitectures interact tobuild theenviron- ment that “Netizens” know. The code writer, as Ethan Katsh puts it, is the “architect.”21

But how can we“make and maintain” this balance between modalities? What tools do we have to achieve a different construction? How might the mix of real-space values be carried over to the world of cyberspace? How might the mix be changed if change is desired?

ON GOVERNMENTS AND WAYS TO REGULATE

I’ve described four constraints that I’ve said “regulate” an individual. But these separate constraints obviously don’t simply exist as givens in a social life. They are neither found in nature nor fixed by God. Each can be changed, though the mechanics of changing them is complex. Law can have a significant role in this mechanics, and my aim in this section is to describe that role.

A simple example will suggest the more general point. Say the theft of car radios is a problem—not big in the scale of things, but a frequent and costly enough problem to make more regulation necessary. One response

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might be to increase the penalty for car radio theft to life in prison, so that the risk faced by thieves made it such that this crime did not pay. If radio thieves realized that they exposed themselves to a lifetime in prison each time they stole a radio, it might no longer make sense to them to steal radios. The constraint constituted by the threatened punishment of law would now be enough to stop the behavior we are trying to stop.

But changing the law isnot theonlypossible technique.A secondmight be to change the radio’s architecture. Imagine that radio manufacturers program radios to work only with a single car—a security code that elec- tronically locks the radio to the car, so that, if the radio is removed, itwill no longer work. This is a code constraint on the theft of radios; it makes the radio no longer effective once stolen. It too functions as a constraint on the radio’s theft, and like the threatenedpunishmentof life inprison, it couldbe effective in stopping the radio-stealing behavior.

Thus, the same constraint can be achieved through different means, and thedifferentmeans costdifferent amounts.The threatenedpunishment of life in prison may be fiscally more costly than the change in the architec- ture of radios (depending on how many people actually continue to steal radios and how many are caught). From this fiscal perspective, it may be more efficient to change code than law.Fiscal efficiencymay also align with the expressive content of law—a punishment so extreme would bebarbaric for a crime so slight.Thus, the values may well track the efficient response. Code would be the best means to regulate.

The costs, however, need not align so well. Take the Supreme Court’s hypothetical example of life in prison for a parking ticket.22 It is likely that whatever code constraint might match this law constraint, the law con- straint would be more efficient (if reducing parking violations were the only aim). There would be very few victims of this law before people con- formed theirbehavior appropriately.But the“efficient result”wouldconflict with other values. If it is barbaric to incarcerate for life for the theft of a radio, it is all themorebarbaric as apenalty for aparkingviolation.The reg- ulator has a range of means to effect the desired constraint, but the values that these means entail need not align with their efficiency. The efficient answer may well be unjust—that is, it may conflict with values inherent in the norms,or law (constitution), of the society.

Law-talk typically ignores theseother regulators andhow lawcanaffect their regulation.Many speak as if lawmust simply take theother three con- straints as given and fashion itself to them.23

I say“as if”because today it takesonly a second’s thought to see that this narrowness is absurd. There were times when these other constraints were

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treatedas fixed—when the constraintsof normswere said tobe immovable by governmental action,24 or the market was thought to be essentially unregulable,25 or the cost of changing real-space code was so high as to make the thought of using it for regulation absurd.26 But we see now that these constraints areplastic.27 They are, as law is, changeable, and subject to regulation.

Theexamplesareobviousandmany.Think first about themarket: talkof a“freemarket”notwithstanding, there isnomoreheavily regulatedaspectof our life.28 Themarket is regulatedby lawnot just in its elements—it is lawthat enforces contracts, establishes property, and regulates currency—but also in its effects. The law uses taxes to increase the market’s constraint on certain behaviorsandsubsidies to reduce its constraintonothers.Wetaxcigarettes in part to reduce their consumption, but we subsidize tobacco production to increase its supply. We tax alcohol to reduce its consumption. We subsidize child care to reduce the constraint the market puts on raising children. In manysuchways theconstraintof law isused tochange theconstraintsof the market.

Law can also change the regulation of architecture. Think about the Americans with Disabilities Act (ADA).29 Many of the“disabled”are cut off fromaccess tomuchof theworld.Abuildingwithonly stairs is abuilding that is inaccessible to a person in a wheelchair; the stairs are a constraint on the disabledperson’s access to thatbuilding.But theADAinpart aims tochange that constraintbyrequiringbuilders tochange thedesignof buildings so that the disabled are not excluded.Here is a regulation of real-space code,by law, to change the constraint that real-space code creates.

Other examples are even better.

• Some of the power of the French Revolution derived from the architecture of

Paris: The city’s small and winding streets were easily barricaded, making it

possible for revolutionaries to take control of the city with relatively little

absolute strength. Louis Napoleon III understood this, and in 1853 he took

steps to change it.30 Paris was rebuilt, with wide boulevards and multiple

passages, making it impossible for insurgents to take control of the city.

• Every schoolchild learns of L’Enfant’s design to make an invasion of Washing-

ton difficult. But more interesting is the placement of the White House rela-

tive to the Capitol.The distance between them is one mile, and at the time it

was a mile through difficult terrain (the mall was a swamp). The distance

was a barrier meant to tilt the intercourse between Congress and the presi-

dent by making it marginally more difficult for them to connect—and

thereby more difficult for the executive to control the legislature.

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• This same idea has influenced the placement of constitutional courts in

Europe.Throughout Europe constitutional courts were placed in cities other

than the capital. In Germany the court is in Karlsruhe rather than Berlin; in

the Czech Republic it is in Brno rather than Prague. The reason again is tied

to the constraint of geography: Placing constitutional courts far away from

legislatures and executives was meant to minimize both the pressure the latter

two bodies could place on the court and reduce the court’s temptation to

bow to it.

• The principle is not limited to high politics. Designers of parking garages or

streets where children may play place speed bumps in the road so that drivers

must slow down. These structures have the same purpose as a speed limit or

a norm against driving too fast, but they operate by modifying architecture.

• Neither is the principle limited to virtuous regulation: Robert Moses built

bridges on Long Island to block buses, so that African Americans, who

depended primarily on public transportation, could not easily get to public

beaches.31 That was regulation through architecture, invidious yet familiar.

• Nor is it limited to governments.A major American airline noticed that pas-

sengers on early Monday morning flights were frustrated with the time it

took to retrieve bags from the plane. They were much more annoyed than

other passengers, even though it took no longer than average to retrieve the

bags from these flights.The company began parking these flights at gates far-

ther away from baggage claim, so that by the time the passengers arrived at

baggage claim, their bags were there. Frustration with the baggage handling

system was eliminated.

• A large hotel in an American city received many complaints about the slow-

ness of its elevators. It installed mirrors next to the elevator doors.The com-

plaints ended.

• Few are likely to recognize the leading regulation-through-architecture pro-

ponent of the 20th century—Ralph Nader. It is astonishing today to read his

account of the struggle to get safety standards enforced upon auto makers.

Nader’s whole objective was to get the law to force car manufacturers to build

safer cars. It is obvious today that the code of cars is an essential part of auto

safety.Yet on this basic point, there was fundamental disagreement.32

• Neal Katyal has extensively considered the relationship of architecture to

criminal law, from the deployment of street lights to the design of public

spaces to maximize visibility.33 The 2000 Sydney Olympics, for example,“self-

consciously employed architecture to reduce crime.”34 And architects have

begun to identify principles of design that can minimize crime—called

“Crime Prevention Through Environmental Design.”35

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Ineachexample,anarchitecture ischangedsoas torealizedifferentbehav- ior. The architecture effects that difference.As a sign above one of the portals at the 1933 Chicago World’s Fair put it (though it was speaking of science): “ScienceExplores:TechnologyExecutes:ManConforms.”36

Law can change social norms as well, though much of our constitutional jurisprudence seemsdedicated to forgetting justhow.37 Education is themost obviousexample.AsThurgoodMarshallput it,“Education isnot the teaching of the threeR’s.Education is the teachingof theoverall citizenship, to learn to live togetherwith fellowcitizens,andaboveall to learntoobey the law.”38 Edu- cation is, inpartat least,aprocess throughwhichweindoctrinatechildren into certain norms of behavior—we teach them how to“say no”to sex and drugs. Wetry tobuildwithinthemasenseofwhat iscorrect.This sense thenregulates themto the law’s end.

Plainly, thecontentof muchof thiseducation is regulatedby law.Conser- vativesworry, forexample, thatby teachingsexeducationwechange thenorm of sexual abstinence.Whether that is correct or not, the law is certainly being used to change the norms of children. If conservatives are correct, the law is eliminating abstinence. If liberals are correct, the law is being used to instill a normof safe sex.Eitherway,normshave theirownconstraint,and lawisaim- ing to change that constraint.

To say that lawplays a role isnot to say that it alwaysplays apositive role. The lawcanmuckupnormsaswell as improve them,and Idonot claimthat the latter result ismorecommonthanthe former.39 Thepoint is just to see the role,not topraiseor criticize it.

In each case, the law chooses between direct and indirect regulation.The question is: Which means best advances the regulator’s goal, subject to the constraints (whethernormativeormaterial) that theregulatormustrecognize? Myargument is thatanyanalysisof the strategiesof regulationmust take into account these different modalities. As Polk Wagner puts it, focusing on one additionalmodality:

[J]ust as the choice of a legal rule will involve analytic trade offs between the

familiarcategoriesof property rulesand liability rules, the incorporationof legal

preemptionrules in thecyberspacecontextwill requireasimilarexercisealongan

additionaldimension—the impact that the legal rulewillhaveoncorresponding

software regulation (and thus the effect on the law-software interface).40

Or again,“legal policy proposals unsupported by predictions of techno- logical responsearedeeply incomplete.”41 Andthe samecanbe saidgenerally about the interaction between any modality and any policy proposal.

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We can represent the point through a modification of the second figure:

AsWagner rightly insists,again, the interactionamongthesemodalities is dynamic,“requiring considerationof notonly . . . legal adjustments,but also predicting the responsiveeffects suchchangeswill stimulate.”42 Theregulator seeksan“equilibrium,”constantlyconsidering trade-offs amongmodalitiesof regulation.

The point should be familiar, and the examples can be multiplied. Seatbelts: The government may want citizens to wear seatbelts more

often.43 It could pass a law to require the wearing of seatbelts (law regulating behavior directly). Or it could fund public education campaigns to create a stigma against those who do not wear seatbelts (law regulating social norms asameans toregulatingbehavior).Or it couldsubsidize insurancecompanies to offer reduced rates to seatbelt wearers (law regulating the market as a way of regulatingbehavior).Finally, the lawcouldmandateautomatic seatbelts,or ignition-locking systems(changing thecodeof theautomobile as ameansof regulatingbeltingbehavior).Eachactionmightbe said tohave someeffecton seatbelt use; each has some cost.The question for the government is how to get the most seatbelt use for the least cost.

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Discrimination against the disabled: The disabled bear the burden of sig- nificant social and physical barriers in daily life.44 The government might decide to do something about those barriers. The traditional answer is law regulating behavior directly: a law barring discrimination on the basis of physical disability.But the law could do more. It could, for example, educate children inorder tochangesocialnorms(regulatingnormstoregulatebehav- ior). It could subsidize companies tohire thedisabled(regulating themarket toregulatebehavior). It couldregulatebuildingcodes tomakebuildingsmore accessible to thedisabled(regulating“natural”or real-spacecodes to regulate behavior). Each of these regulations would have some effect on discrimina- tion and would have a cost. The government would have to weigh the costs against the benefits and select the mode that regulates most effectively.

Drugs: The government is obsessed with reducing the consumption of illicit drugs. Itsmain strategyhasbeendirect regulationof behavior through the threatof barbaricprison terms forviolationof thedrug laws.Thispolicy has obvious costs and non-obvious benefits. But most interesting for our purposes are the non-obvious costs. As Tracey Meares persuasively argues, one effective structure for regulating the consumption of illegal drugs is the social structure of the community in which an individual lives.45 These are what I’ve called social norm constraints: standards of appropriate behavior enforced by the sanctions of a community—whether through shame, exclu- sion, or force.

Just asgovernmentcanact to strengthen these socialnormconstraints, it should be obvious that government can also act to weaken them.46 One way to do this is by weakening the communities within which these norms oper- ate.This, saysMeares, iswhat the extremesanctionsof the criminal lawdo.47

In their extremityandeffect, theyundermine the social structures thatwould support this social policy.This is an indirect effect of thedirect regulationof law, and at some point this effect may overwhelm the effect of the law. We might call this the Laffer Curve for criminal law.

The net effect of these different constraints cannot be deduced a priori. The government acts in many ways to regulate the consumption of drugs. It supports extensive public education campaigns to stigmatize the consump- tionof drugs (regulating socialnorms toregulatebehavior). It seizesdrugsat theborder, therebyreducing the supply, increasing theprice,andpresumably reducing demand (regulating the market to regulate behavior).And at times it has even (and grotesquely) regulated the“code”of drugs (by, for example, sprayingmarijuana fieldswithparaquat),making themmoredangerousand thereby increasing theconstraintontheir consumption.48Allof these together influence the consumption of drugs. But as advocates of legalization argue,

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theyalso influence the incidenceof other criminalbehavior aswell.Thepol- icymakermustassess thenet effect—whetheron thewhole these regulations reduce or increase social costs.

Abortion: One final example will complete the account. Since Roe v. Wade, the Court has recognized a woman’s constitutional right to an abor- tion.49 This right, however, has not stopped government from seeking to eliminate or reduce the number of abortions. Again, the government need not relyondirect regulationof abortion(whichunderRoewouldbeuncon- stitutional). It can instead use indirect means to the same end. In Rust v. Sullivan, theCourtupheld thepowerof thegovernment tobias theprovision of family planning advice by forbidding doctors in “government-funded” clinics from mentioning abortion as a method of family planning.50 This is a regulation of social norms (within the social structure of medical care) to regulatebehavior. In Maher v. Roe, theCourtupheld the rightof thegovern- ment to disable selectively medical funding for abortion.51 This is the use of the market to regulate behavior. And in Hodgson v. Minnesota, the Court upheld the rightof the state to forceminorwomen towait forty-eighthours before getting an abortion.52 This is the use of real-space code (the con- straintsof time) to regulate access toabortion. Inall theseways,Roe notwith- standing, the government can regulate the behavior of women wanting abortions.

In each of these examples, law functions in two very different ways.53

When its operation is direct, it tells individuals how to behave and threatens punishment if theydeviate fromthatbehavior.When itsoperation is indirect, it modifies one of the other structures of constraint.54 The regulator selects from among these various techniques according to the return from each— both in efficiency and in the values that each might express.

Whenwesee regulation in thismoregeneralway,wecanseemoreclearly howtheunregulabilityof cyberspace is contingent.Wegeta stronger senseof howthestatecould intervene tomakeregulationwork,andweshouldalsoget a senseof the increaseddangerspresentedby thismoreexpansive senseof reg- ulation. Inparticular,weshouldhaveastronger senseof thedanger itpresents to constitutional values.The next section considers one such threat.

THE PROBLEMS OF INDIRECTION

In 1985, after years of inaction, Congress passed the Low Level Radioactive Waste Policy Amendments Act to deal with the problem of nuclear waste. Someone needed to take and store nuclear waste.55 After sufficient prodding by the government, a number of states formed a compact, which Congress

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then ratified, implementing a number of requirements and incentives for states to deal with the nuclear waste they produce.

The details of the overall plan are not important here. It is enough to focus on just one part.To induce states to follow federal guidelines for regu- lating nuclear waste,Congress gave them a choice:Either enact certain regu- lationsor“take title”to thespentnuclear fuel.Thiswasa“yourmoneyoryour life” regulation, for the fuel to which the states would take title was not an assetbutagreat liability. Inaveryheavy-handedway,Congresswasessentially forcing states to pass the regulations it wanted.

TheSupremeCourt struckdownthispartof the law. Ineffect, theCourt held,Congress was commandeering the state legislatures to enact Congress’s law. Congress itself, of course, had the power to enact those regulations directly.But itdidnothave thepower toorder states toenact laws. Indirection here was not allowed.

This case—New York v. United States—doesnot stand for thebroadprin- ciple that government must regulate only directly, or even for the principle that indirect regulation generally is disfavored. The case was focused quite narrowly on the question of indirection as it involved the states. The most New York stands for is the idea that states,as independent sovereignsdeserving of special constitutional respect, cannot be co-opted to the federal govern- ment’s ends—that when the federal government has a program it wants to carry out, it must put its own name behind it.

Butwhile New York doesn’t establishageneral constitutionalprinciple, it does suggest why indirection should be a more general concern.

Indirection misdirects responsibility. When a government uses other structuresof constraint toeffect aconstraint it could imposedirectly, itmud- dies the responsibility for that constraint and so undermines political accountability. If transparency is a value in constitutional government, indi- rection is its enemy. It confuses responsibility and hence confuses politics.56

Such misunderstandings are possible in other contexts as well. Think again about the case of Rust. The federal government helps to fund family planning clinics. (“Helps” fund, not completely funds.)57 Before 1988 these clinicsgaveadviceonawiderangeof birth-related topics, includingabortion. Doctors in familyplanningclinicswouldadvise theirpatients aboutabortion whenever they felt such advice was proper.

The Reagan administration wanted to change that, so it ordered (the details of how are not important here) doctors in those clinics to not discuss abortion as a method of family planning with their patients. If asked, the doctors were to say,“The project does not consider abortion an appropriate method of family planning.”58

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Theaimof this regulationwasclear: to reduce the incidenceof abortion. Itdid thisbyusingdoctors to steerpatients away fromabortion.Adoctorhas a great deal of power over a patient in a context like this, and the patient would most likely believe the doctor was recommending against abortion.

But notice the technique. The federal government could have stated its own position about abortion. It could have put up posters and billboards saying that abortion is wrong, or it could have used space in its clinics to advertise its view.But it chose instead tobury itspolicychoice in thewordsof doctors. It therebycould tradeontheprofessional authorityof thedoctors to advance its own ends. It could regulate abortion indirectly by regulating the doctors directly.

Just as it tried to use the authority of the states to effect its ends in New York, the government trades on a misrepresentation in Rust. But worse than in the federalism context, the victim of the misrepresentation here does not even realize that the misrepresentation is a policy choice. The patient is unlikely to hear the doctor’s statement as a political broadcast from the gov- ernment; she is most likely to hear it as a medical opinion.Not only is there a confusion about who is responsible for the opinion expressed, but there is also confusion about whether it is an opinion at all.

Rust v. Sullivan is one of the great embarrassments of the Supreme Court—thecaseproving JusticeScalia’s rule thatany issuegetsdistortedonce it getsnear thequestionof abortion.59 Butmyargumentheredoesn’tdepend upon whether Rust was right. My aim is to bring out a certain sensibility about regulation; Rust simply points the way.

Consider a third case. Until 1948 deeds could include covenants (promises) that theproperty coveredby thedeedcouldnotbe sold topeople of a particular race. The purpose of these provisions was clear: to effect and preserve segregation.Their use was extensive. It was estimated, for example, that when Shelley v Kraemer60 struck these provisions down as unconstitu- tionalunder theequalprotectionclause,25percentof theproperties in south Chicago had been prohibited from sale toAfricanAmericans.61

Asawfulas suchprovisionswere, theyhadacertain integrity.Theyclearly stated theirpurposeandwere transparentabout thevalues theyaffirmed.No one could pretend that the segregation they effected was somehow an acci- dental by-product of decisions made elsewhere.Although they were private covenants, theywereenforcedby the stateand, indeed,derived theirmeaning from the state.They said:This society is racist.

When the Court struck these provisions down, however, the question becamewhatwouldreplace them.Fewexpectedthat theattitudesbehindthese covenants would suddenly disappear because of a single court judgment. So

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when the Court ended direct segregation,we should expect indirect segrega- tion toemerge to replace it.

Sure enough, after 1948 local communities shifted their technique for preserving segregation.Rather thancovenants, theyusedarchitecture.Com- munitiesweredesigned to“break the flow”of residents fromone toanother. Highwayswithouteasycrossingswereplacedbetweencommunities.Railroad tracks were used to divide. A thousand tiny inconveniences of architecture and zoning replaced the express preferences of covenants. Nothing formally prohibited integration,but informally,much did. 62

Local governments thus did something very much like what the federal government did in Rust and tried to do in New York: No longer able to effect segregationdirectly, theyusedzoning laws—geographicalarchitecture,orreal- spacecode—toeffect it indirectly.Theybuilt their communitiesanddesigned their streets to make it hard for integration to occur, and the tiny inconven- iencesof zoning regulations succeeded inkeepingcommunities separate.

What is most significant is that now, even more than with Rust, it becomes very difficult to see the link between the regulation and its conse- quence.Thecontinuing segregationof these communities isdescribedas the product of “choice.” Individuals choose to live in one neighborhood rather thananother. Ina strict sense, that is correct,but their choicesaremade in the face of costs that the state has imposed. It is easier to remain segregated, so peoplechoose todo that.But it isonlyeasierbecausegovernmenthasmoved mountains to make it that way.

Here the government is regulating indirectly by using the structures of real-spacecode toeffect its ends,but this regulation,again, isnot seenas reg- ulation. Here the government gets an effect at no political cost. It gets the benefit of whatwould clearlybe an illegal andcontroversial regulationwith- out even having to admit any regulation exists.

In all three cases, the government is commandeering the power of anothermodality—another structureof constraint—toeffect itsownends.63

This in itself is not necessarily improper. There are plenty of examples that anyone would consider proper. A requirement that streets be well lit, for instance, is a regulation designed to reduce crime, and no one would think that regulation improper.Nordoesall suchregulationhide itspedigree.Think again about speed bumps–they are examples of indirect regulation. Like a windingroad, theyuse thecodeof streets tokeepdownthespeedof acar.But no one is fooled about the source of this regulation; no one believes the bumps are accidental.

Thus, the point is not against indirect regulation generally. The point is instead about transparency. The state has no right to hide its agenda. In a

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constitutionaldemocracy its regulations shouldbepublic.Andthus,one issue raised by the practice of indirect regulation is the general issue of publicity. Should the statebepermitted tousenontransparentmeanswhentransparent means are available?

WHERE THIS LEADS

After Ipublishedanessay in the(thenexisting) Industry Standard arguing that “code is law,”64 the following letter was sent to the editor:

Typical foraHarvardLawProfessor. . . .Lessigmisses theentire forestwhiledancing

amongthe trees. . . .Whilehis riff onWestCoastCode(fromSiliconValleyProgram-

mers) vs. East Coast Code (from government lawyers) is very cleverly crafted, it

completely avoids the real difference between the two.

The good professor seems to apply the word“regulation”equally to the efforts

of private enterprises to control the behavior of their customers through market

mechanismsandtheeffortsof governmentagencies tocontrol thebehaviorof all cit-

izens through force of law.

So longas thecreators andpurveyorsofWestCoastCode(nomatterhowself-

ish, monopolistic, demonic or incompetent they may be) do not carry guns and

badges, I will choose them over the enforcers of East Coast Code any time.65

Whetherornot I’vemissed the“realdifference”betweencodeand law,the genius in this letter is that its authorclearly sees thereal similarity.Theauthor (the president of an Internet-related business) understands that “private enterprises”try to“control thebehaviorof their customers,”andhewrites that they use “market mechanisms” to achieve that control. (Technically, I was speaking about architectures to achieve that effect,but never mind.Whether markets or architectures, the point is the same.) He therefore sees that there is“regulation”beyond law.He justhashis favoritebetweenthe two(corporate executive that he is).

What this author sees is what we all must see to understand how cyber- space is regulated and to see how law might regulate cyberspace. I’ve argued in this chapter that government has a range of tools that it uses to regulate, andcyberspaceexpands that range. Indirectly,by regulatingcodewriting, the governmentcanachieve regulatoryends,oftenwithout suffering thepolitical consequences that the same ends,pursued directly,would yield.

Weshouldworryabout this.Weshouldworryabouta regimethatmakes invisible regulationeasier;we shouldworryabouta regime thatmakes it eas- ier to regulate.We should worry about the first because invisibility makes it

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hard to resist bad regulation; we should worry about the second because we don’t yet—as I argue inPart III—havea senseof thevaluesput at riskby the increasing scope of efficient regulation.

That’s a lot of worries, no doubt. But before we go further with these worries, we could consider in more detail the contexts within which these worries become real.

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E I G H T

t h e l i m i t s i n o p e n c o d e

I’VE TOLD A STORY ABOUT HOW REGULATION WORKS, AND ABOUT THE INCREASING regulability of the Internet that we should expect. These are, as I described, changes in the architecture of the Net that will better enable government’s control bymakingbehavior more easilymonitored—or at least more trace- able. These changes will emerge even if government does nothing.They are the by-product of changes made to enable e-commerce. But they will be cemented if (or when) the government recognizes just how it could make the network its tool.

That was Part I. In this part, I’ve focused upon a different regulabil- ity—the kind of regulation that is effected through the architectures of the space within which one lives.As I argued in Chapter 5, there’s nothing new about this modality of regulation: Governments have used architecture to regulate behavior forever. But what is new is its significance. As life moves onto the Net, more of life will be regulated through the self-conscious design of the space within which life happens. That’s not necessarily a bad thing. If there were a code-based way to stop drunk drivers, I’d be all for it. Butneither is this pervasive code-based regulationbenign.Due to theman- ner inwhich it functions, regulationbycodecan interferewith theordinary democratic process by which we hold regulators accountable.

The key criticism that I’ve identified so far is transparency.Code-based regulation—especially of people who are not themselves technically expert—risksmaking regulation invisible.Controls are imposed for partic- ular policy reasons, but people experience these controls as nature. And that experience, I suggested, could weaken democratic resolve.

Now that’s not saying much, at least about us. We are already a pretty apathetic political culture.And there’s nothing about cyberspace to suggest

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things are going to be different. Indeed, as Castranova observes about vir- tual worlds:“How strange, then, that one does not find much democracy at all in syntheticworlds.Not a trace, in fact.Not ahintof a shadowof a trace. It’s not there.The typical governance model in synthetic worlds consists of isolated moments of oppressive tyranny embedded in widespread anar- chy.”1

But if we could put aside our own skepticism about our democracy for a moment, and focus at least upon aspects of the Internet and cyberspace that we all agree matter fundamentally, then I think we will all recognize a point that, once recognized, seems obvious: If code regulates, then in at least some critical contexts, the kind of code that regulates is critically important.

By “kind” I mean to distinguish between two types of code: open and closed. By “open code” I mean code (both software and hardware) whose functionality is transparent at least tooneknowledgeable about the technol- ogy. By “closed code,” I mean code (both software and hardware) whose functionality is opaque.One can guess what closed code is doing; and with enoughopportunity to test,onemightwell reverse engineer it.But fromthe technology itself, there isno reasonableway todiscern what the functional- ity of the technology is.

The terms “open” and “closed” code will suggest to many a critically important debate about how software should be developed.What most call the“open source softwaremovement,”but which I, followingRichardStall- man, call the “free software movement,” argues (in my view at least) that there are fundamental values of freedom that demand that software be developed as free software. The opposite of free software, in this sense, is proprietary software, where the developer hides the functionality of the softwarebydistributingdigital objects that areopaqueabout theunderlying design.

I will describe this debate more in the balance of this chapter. But importantly, thepoint I ammakingabout“open”versus“closed”code isdis- tinct from the point about how code gets created. I personally have very strong views about how code should be created. But whatever side you are on in the“freevs.proprietary software”debate ingeneral, in at least the con- texts I will identify here, you should be able to agree with me first, that open code is a constraint on state power, and second, that in at least some cases, code must, in the relevant sense, be“open.”

To set the stage for this argument, I want to describe two contexts in which I will argue that we all should agree that the kind of code deployed matters.The balance of the chapter then makes that argument.

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BYTES THAT SNIFF

In Chapter 2, I described technology that at the time was a bit of science fic- tion. In the five years since, that fiction has become even less fictional. In 1997, thegovernmentannouncedaproject calledCarnivore.Carnivorewas to be a technology that sifted through e-mail traffic and collected just those e- mailswrittenbyor toaparticularandnamedindividual.TheFBI intendedto use this technology,pursuant tocourtorders, togather evidencewhile inves- tigating crimes.

In principle, there’s lots to praise in the ideals of the Carnivore design. The protocols required a judge to approve this surveillance. The technology was intended to collect data only about the target of the investigation. No oneelsewas tobeburdenedby the tool.Nooneelsewas tohave theirprivacy compromised.

But whether the technology did what it was said to do depends upon its code. And that code was closed.2 The contract the government let with the vendor thatdeveloped theCarnivore softwaredidnot require that the source for the software be made public. It instead permitted the vendor to keep the code secret.

Now it’s easy to understand why the vendor wanted its code kept secret. In general, inviting others to look at your code is much like inviting them to yourhouse fordinner:There’s lots youneed todo tomake theplacepresent- able. In this case inparticular, theDOJmayhavebeenconcernedabout secu- rity.3 But substantively,however, thevendormightwant tousecomponentsof the software inother softwareprojects. If thecode ispublic, thevendormight lose someadvantage fromthat transparency.Theseadvantages for thevendor mean that it would be more costly for the government to insist upon a tech- nology that was delivered with its source code revealed.And so the question should be whether there’s something the government gains from having the source code revealed.

And here’s the obvious point: As the government quickly learned as it tried to sell the idea of Carnivore, the fact that its code was secret was costly. Muchof thegovernment’s effortsweredevoted to trying tobuild trustaround its claim that Carnivore did just what it said it did. But the argument “I’m from the government, so trust me”doesn’t have much weight.And thus, the efforts of the government to deploy this technology—again, a valuable tech- nology if it did what it said it did—were hampered.

I don’t know of any study that tries to evaluate the cost the government facedbecauseof the skepticismaboutCarnivoreversus thecostof developing Carnivore inanopenway.4 Iwouldbe surprised if thegovernment’s strategy

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made fiscal sense.Butwhetherornot itwas cheaper todevelopclosed rather than open code, it shouldn’t be controversial that the government has an independent obligation to make its procedures—at least in the context of ordinarycriminalprosecution—transparent. Idon’tmeanthat the investiga- tor needs to reveal the things he thinks about when deciding which suspects to target. I mean instead the procedures for invading the privacy interests of ordinary citizens.

The only kind of code that can do that is “open code.” And the small point Iwant to insistupon justnowis thatwhere transparencyof government action matters, so too should the kind of code it uses. This is not the claim thatall governmentcode shouldbepublic. Ibelieve thereare legitimateareas withinwhich thegovernmentcanact secretly.Moreparticularly,where trans- parencywould interferewith the function itself, then there’s agoodargument against transparency. But there were very limited ways in which a possible criminal suspect could more effectively evade the surveillance of Carnivore just because its code was open. And thus, again, open code should, in my view,have been the norm.

MACHINES THAT COUNT

Before November 7, 2000, there was very little discussion among national policymakers about the technologyof votingmachines.Formost (and Iwas within this majority), the question of voting technology seemed trivial.Cer- tainly, there couldhavebeen faster technologies for tallyingavote.Andthere couldhavebeenbetter technologies tocheck forerrors.But the idea thatany- thing important hung upon these details in technology was not an idea that made the cover of the front page of the New York Times.

The2000presidential electionchangedall that.More specifically,Florida in2000changedall that.Notonlydid theFloridaexperiencedemonstrate the imperfection in traditionalmechanicaldevices for tabulatingvotes (exhibit1, the hanging chad), it also demonstrated the extraordinary inequality that havingdifferent technologies indifferentpartsof the statewouldproduce.As Justice Stevens described in his dissent in Bush v. Gore, almost 4 percent of punch-card ballots were disqualified,while only 1.43 percent of optical scan ballotsweredisqualified.5 Andasone studyestimated,changinga singlevote on each machine would have changed the outcome of the election.6

The 2004 election made things even worse. In the four years since the Floridadebacle,a fewcompanieshadpushed todeploynewelectronicvoting machines. But these voting machines seemed to create more anxiety among voters than less.Whilemostvoters arenot techies,everyonehasa senseof the

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obvious queasiness that a totally electronic voting machine produces. You standbeforea terminal andpressbuttons to indicateyourvote.Themachine confirms your vote and then reports the vote has been recorded.But how do you know? How could anyone know? And even if you’re not conspiracy- theory-orientedenoughtobelieve thateveryvotingmachine is fixed,howcan anyone know that when these voting machines check in with the central server, the server records their votes accurately?What’s to guarantee that the numbers won’t be fudged?

The most extreme example of this anxiety was produced by the leading electronicvotingcompany,Diebold. In2003,Dieboldhadbeencaught fudg- ing thenumbersassociatedwith testsof its voting technology.Memos leaked to the public showed that Diebold’s management knew the machines were flawed and intentionally chose to hide that fact. (The company then sued studentswhohadpublished thesememos—for copyright infringement.The students won a countersuit against Diebold.)

That incident seemed only to harden Diebold in its ways. The company continued to refuse to reveal anything about the code that its machines ran. It refused to bid in contexts in which such transparency was required. And whenyoutie that refusal to its chairman’spromise to“deliverOhio”forPres- identBush in2004,youhaveall themakingsof aperfect trust storm.Youcon- trol the machines; you won’t show us how they work; and you promise a particular result in the election. Is there any doubt people would be suspi- cious?7

Now it turns out that it is a very hard question to know how electronic voting machines should be designed. In one of my own dumbest moments since turning21, I told a colleague that therewasno reason tohavea confer- ence about electronic voting since all the issues were “perfectly obvious.” They’re not perfectly obvious. In fact, they’re very difficult. It seems obvious to some that, like an ATM, there should at least be a printed receipt. But if there’s a printed receipt, that would make it simple for voters to sell their votes. Moreover, there’s no reason the receipt needs to reflect what was counted.Nordoes the receiptnecessarily reflectwhatwas transmitted toany central tabulatingauthority.Thequestionof howbest todesign these systems turns out not to be obvious.And having uttered absolute garbage about this pointbefore, Iwon’t enterhere intoanyconsiderationof howbest thismight be architected.

Buthowever a systemis architected, there is an independentpoint about the openness of the code that comprises the system. Again, the procedures used to tabulate votes must be transparent. In the nondigital world, those procedureswereobvious. In thedigitalworld,however they’rearchitected,we

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needaway toensure that themachinedoeswhat it is said itwilldo.Onesim- pleway todo that is either toopen the code to thosemachines,or, at amini- mum, require that that code be certified by independent inspectors. Many would prefer the latter to the former, just because transparency here might increase the chances of the code being hacked.My own intuition about that isdifferent.Butwhetherornot thecode is completelyopen,requirements for certification are obvious. And for certification to function, the code for the technology must—in a limited sense at least—be open. {TXB2} Both of these examples make a similar point.But that point, however, is not universal.Thereare timeswhencodeneeds tobe transparent,even if thereare timeswhen itdoesnot. I’mnot talkingaboutall code forwhateverpurposes. I don’t think Wal*Mart needs to reveal the code for calculating change at its check-out counters. I don’t even thinkYahoo! should have to reveal the code for its Instant Messaging service. But I do think we all should think that, in certain contexts at least, the transparency of open code should be a require- ment.

This is a point that Phil Zimmermann taught by his practice more than 15 years ago. Zimmermann wrote and released to the Net a program called PGP(prettygoodprivacy).PGPprovides cryptographicprivacyandauthen- tication.ButZimmermannrecognized that itwouldnotearn trust enoughto provide these services well unless he made available the source code to the program.So from the beginning (except for a brief lapse when the program wasownedbyacompanycalledNAI8) the source codehasbeenavailable for anyone toreviewandverify.Thatpublicityhasbuilt confidence in thecode— aconfidence that couldneverhavebeenproducedbymerecommand.In this case,opencodeserved thepurposeof theprogrammer,ashispurposewas to build confidence and trust in a system that would support privacy and authentication.Open code worked.

The hard question is whether there’s any claim to be made beyond this minimal one. That’s the question for the balance of this chapter: How does open code affect regulability?

CODE ON THE NET

I’ve spent lots of time talking about“code.”It’s time to be a bit more specific about what“code” in the context of the Internet is, in what sense should we consider this code tobe“open,”and inwhatcontexts itsopennesswillmatter.

As I’ve mentioned, the Internet is constructed by a set of protocols together referred to as TCP/IP.The TCP/IP suite includes a large number of

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protocols that feed different“layers”of the network.The standard model for describing layers of a network is the open systems interconnect (OSI) refer- ence model. It describes seven network layers, each representing a“function performedwhendata is transferredbetweencooperatingapplicationsacross” the network. But the TCP/IP suite is not as well articulated in that model. According to Craig Hunt,“most descriptions of TCP/IP define three to five functional levels in the protocol architecture.” In my view, it is simplest to describe four functional layers inaTCP/IParchitecture.9 Fromthebottomof the stack up,we can call these thedata link,network, transport, andapplica- tion layers.10

Three layers constitute the essential plumbing of the Internet, hidden in the Net’s walls. (The faucets work at the next layer; be patient.) At the very bottom,just above thephysical layerof the Internet, in thedata link layer,very few protocols operate, since that handles local network interactions exclu- sively. More protocols exist at the next layer up, the network layer,where the IP protocol is dominant. It routes data between hosts and across network links,determining which path the data should take.At the next layer up, the transport layer, two different protocols dominate—TCP and UDP. These negotiate the flow of data between two network hosts. (The difference between the two is reliability—UDP offers no reliability guarantee.)

The protocols together function as a kind of odd UPS. Data are passed from the application to the transport layer. There the data are placed in a (virtual)boxanda(virtual) label is slappedon.That label ties thecontentsof the box to particular processes. (This is the work of the TCP or UDP proto- cols.) That box is then passed to the network layer, where the IP protocol puts thepackage intoanotherpackage,with itsown label.This label includes the origination and destination addresses. That box then can be further wrappedat thedata link layer,dependingonthespecificsof the localnetwork (whether, for example, it is an Ethernet network).

The whole process is thus a bizarre packaging game:A new box is added at each layer, and a new label on each box describes the process at that layer. At the other end, the packaging process is reversed: Like a Russian doll, each package is opened at the proper layer, until at the end the machine recovers the initial application data.

On top of these three layers is the application layer of the Internet.Here protocols“proliferate.”11 These include themost familiarnetworkapplication protocols, suchasFTP(file transferprotocol,aprotocol for transferring files), SMTP(simplemail transportprotocol,aprotocol for transferringmail),and HTTP(hyper text transferprotocol,aprotocol topublishandreadhypertext documentsacross theWeb).Theseare rules forhowaclient (yourcomputer)

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will interactwitha server (where thedataare),orwithanother computer (in peer-to-peer services), and the other way around.12

These four layers of protocols are “the Internet.” Building on simple blocks, the system makespossible an extraordinary rangeof interaction. It is perhapsnotquiteasamazingasnature—thinkof DNA—but it isbuilton the same principle: keep the elements simple, and the compounds will astound.

When I speak about regulating the code, I’m not talking about changing these core TCP/IP protocols. (Though in principle, of course, they could be regulated,andothershave suggested that they shouldbe.)13 Inmyview these components of the network are fixed. If you required them to be different, you’dbreak the Internet.Thus rather than imagining thegovernmentchang- ing the core, the question I want to consider is how the government might either (1) complement thecorewith technology that adds regulability,or (2) regulatesapplications thatconnect to thecore.Bothwillbe important,butmy focus isonthecode thatplugs into the Internet. Iwill call that code the“appli- cation space” of the Internet. This includes all the code that implements TCP/IP protocols at the application layer—browsers, operating systems, encryption modules, Java, e-mail systems,P2P,whatever elements you want. The question for the balance of this chapter is:What is the character of that code that makes it susceptible to regulation?

A SHORT HISTORY OF CODE ON THE NET

In thebeginning,of course, therewere very fewapplicationson theNet.The Net was no more than a protocol for exchanging data, and the original pro- gramssimply tookadvantageof thisprotocol.The file transferprotocol (FTP) wasbornearly in theNet’shistory;14 theelectronicmessageprotocol (SMTP) wasbornsoonafter. Itwasnot longbeforeaprotocol todisplaydirectories in a graphical way (Gopher) was developed. And in 1991 the most famous of protocols—the hyper text transfer protocol (HTTP) and hyper text markup language (HTML)—gave birth to theWorldWideWeb.

Eachprotocol spawnedmanyapplications.Sincenoonehadamonopoly on the protocol, no one had a monopoly on its implementation.There were many FTP applications and many e-mail servers. There were even a large numberof browsers.15 Theprotocolswereopenstandards,gaining theirbless- ing fromstandardsbodies suchas the InternetEngineeringTaskForce (IETF) and, later, theW3C.Onceaprotocolwas specified,programmerscouldbuild programs that utilized it.

Much of the software implementing these protocols was“open,”at least initially—that is, the sourcecode for the softwarewasavailablealongwith the

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object code.16 This openness was responsible for much of the early Net’s growth. Others could explore how a program was implemented and learn from that example how better to implement the protocol in the future.

The World Wide Web is the best example of this point. Again, the code that makes a web page appear as it does is called the hyper text markup lan- guage, orHTML.17 WithHTML,youcan specifyhowawebpagewill appear and to what it will be linked.

TheoriginalHTMLwasproposed in1990by theCERNresearchersTim Berners-Lee and Robert Cailliau.18 It was designed to make it easy to link documents at a research facility, but it quickly became obvious that docu- mentsonanymachineonthe Internet couldbe linked.Berners-LeeandCail- liau made both HTML and its companion HTTP freely available for anyone to take.

And take them people did, at first slowly, but then at an extraordinary rate. People started building web pages and linking them to others. HTML becameoneof the fastest-growingcomputer languages in thehistoryof com- puting.

Why? One important reason was that HTML was always “open.” Even today,onmostbrowsers indistribution,youcanalways reveal the“source”of a web page and see what makes it tick. The source remains open: You can download it, copy it, and improve it as you wish.Copyright law may protect the source code of a web page, but in reality it protects it very imperfectly. HTML became as popular as it did primarily because it was so easy to copy. Anyone,at any time,could lookunder thehoodof anHTMLdocument and learn how the author produced it.

Openness—not property or contract but free code and access—created the boom that gave birth to the Internet that we now know.And it was this boom that then attracted the attention of commerce. With all this activity, commerce rightly reasoned, surely there was money to be made.

Historically the commercial model for producing software has been dif- ferent.19 Though the history began even as the open code movement contin- ued, commercial software vendors were not about to produce “free” (what most call “open source”) software. Commercial vendors produced software that was closed—that traveled without its source and was protected against modification both by the law and by its own code.

By the second half of the 1990s—marked most famously by Microsoft’s Windows95,whichcamebundledInternet-savvy—commercial softwareven- dors began producing “application space” code. This code was increasingly connected to theNet—it increasinglybecamecode“on”the Internet.But for the most part, the code remained closed.

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Thatbegantochange,however,aroundthe turnof thecentury.Especially in thecontextof peer-to-peer services, technologies emerged thatweredom- inant and “open.” More importantly, the protocols these technologies depended upon were unregulated. Thus, for example, the protocol that the peer-to-peer client Grokster used to share content on the Internet is itself an openstandard thatanyonecanuse.Manycommercial entities tried touse that standard, at least until the Supreme Court’s decision in Grokster. But even if that decision inspires every commercial entity to abandon the StreamCast network,noncommercial implementations of the protocol will still exist.

Thesamemixbetweenopenandclosedexists inbothbrowsersandblog- ging software. Firefox is the more popular current implementation of the Mozilla technology—the technology that originally drove the Netscape browser. It competes with Microsoft’s Internet Explorer and a handful of other commercial browsers.Likewise,WordPress is anopen-sourceblogging tool that competes with a handful of other proprietary blogging tools.

This recent growth in open code builds upon a long tradition. Part of themotivation for that tradition is ideological,orvaluesbased.RichardStall- man is the inspirationhere. In1984,Stallmanbegan theFreeSoftwareFoun- dation with the aim of fueling the growth of free software. A MacArthur Fellow who gave up his career to commit himself to the cause, Stallman has devoted the last twenty years of his life to free software. That work began with the GNU project, which sought to develop a free operating system. By 1991, the GNU project had just about everything it needed, except a kernel. That final challenge was taken up by an undergraduate at the University of Helsinki. That year, Linus Torvalds posted on the Internet the kernel of an operating system.He invited the world to extend and experiment with it.

People tookupthechallenge,andslowly, throughtheearly1990s,marry- ing the GNU project with Torvald’s kernel, they built an operating system— GNU/Linux. By 1998, it had become apparent to all that GNU/Linux was going to be an important competitor to the Microsoft operating system. Microsoft may have imagined in 1995 that by 2000 there would be no other server operating system available except Windows NT, but when 2000 came around, there was GNU/Linux, presenting a serious threat to Microsoft in the server market. Now in 2007, Linux-based web servers continue to gain market share at the expense of Microsoft systems.

GNU/Linux is amazing inmanyways. It is amazing firstbecause it is the- oretically imperfect but practically superior. Linus Torvalds rejected what computer science told him was the ideal operating system design,20 and insteadbuilt anoperating systemthatwasdesigned fora singleprocessor (an Intel 386) and not cross-platform-compatible. Its creative development, and

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theenergy it inspired,slowly turnedGNU/Linux intoanextraordinarilypow- erful system.Asof thiswriting,GNU/Linuxhasbeenported toat least eight- een different computer architecture platforms—from the original Intel processors, toApple’sPowerPCchip, toSunSPARCchips,andmobiledevices usingARMprocessors.21 Creativehackershave evenportedLinux to squeeze ontoApple’s iPodandoldAtari systems.Although initiallydesigned to speak onlyone language,GNU/Linuxhasbecomethe lingua francaof free software operating systems.

What makes a system open is a commitment among its developers to keep its core code public—to keep the hood of the car unlocked.That com- mitment isnot just awish;Stallmanencoded it ina license that sets the terms that control the future use of most free software. This is the Free Software Foundation’s General Public License (GPL), which requires that any code licensed with GPL (as GNU/Linux is) keep its source free. GNU/Linux was developedbyanextraordinary collectionof hackersworldwideonlybecause its code was open for others to work on.

Its code, inotherwords,sits in thecommons.22Anyonecantake it anduse it as shewishes.Anyonecantake it andcometounderstandhowitworks.The codeof GNU/Linux is like a research program whose results are alwayspub- lished for others to see.Everything is public; anyone,without having to seek the permission of anyone else,may join the project.

Thisprojecthasbeenwildlymore successful thananyoneever imagined. In1992,mostwouldhave said that itwas impossible tobuilda freeoperating system from volunteers around the world. In 2002, no one could doubt it anymore.But if the impossible couldbecomepossible, thennodoubt it could become impossible again.And certain trends in computing technology may create precisely this threat.

For example, consider the wayActive Server Pages (ASP) code works on the network.When you go to an ASP page on the Internet, the server runs a program—ascript togiveyouaccess toadatabase, forexample,oraprogram togeneratenewdatayouneed.ASPsare increasinglypopularways toprovide program functionality.You use it all the time when you are on the Internet.

But thecode that runsASPs isnot technically“distributed.”Thus,even if thecode isproducedusingGPL’dcode, there’snoGPLobligation torelease it to anyone. Therefore, as more and more of the infrastructure of networked life becomes governed by ASP, less and less will be effectively set free by free license.

“Trusted Computing” creates another threat to the open code ecology. Launchedasa response tovirusandsecurity threatswithinanetworkedenvi- ronment, thekey technical featureof“trustedcomputing”is that theplatform

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blocksprograms thatarenotcryptographically signedorverifiedby theplat- form. For example, if you want to run a program on your computer, your computerwould first verify that theprogramiscertifiedbyoneof theauthor- ities recognized by the computer operating system, and “incorporat[ing] hardware and software . . . security standards approved by the content providers themselves.”23 If it isn’t, the program wouldn’t run.

In principle, of course, if the cost of certifying a program were tiny, this limitation might be unproblematic. But the fear is that this restriction will operate to effectively block open code projects. It is not easy for a certifying authority to actually know what a program does; that means certifying authorities won’t be keen to certify programs they can’t trust. And that in turn will effect a significant discrimination against open code.

REGULATING OPEN CODE

Opencodeprojects—whether free softwareoropensourcesoftwareprojects— sharethefeaturethattheknowledgenecessarytoreplicatetheproject is intended alwaystobeavailabletoothers.There isnoeffort,throughlawortechnology,for thedeveloperof anopencodeproject tomakethatdevelopmentexclusive.And, moreimportantly,thecapacitytoreplicateandredirect theevolutionofaproject provided in itsmostefficient formisalsoalwayspreserved.

Howdoes this fact affect theregulabilityof code? InChapter5,Isketchedexamplesofgovernmentregulatingcode.Butthink

againabout thoseexamples:Howdoes suchregulationwork? Consider two. The government tells the telephone company something

about how its networks are to be designed,and the government tells television manufacturers what kinds of chips TVs are to have.Why do these regulations work?

The answer in each case is obvious.The code is regulable only because the codewriterscanbecontrolled.If thestate tells thephonecompanytodosome- thing, thephonecompanyisnot likely toresist.Resistancewouldbringpunish- ment;punishmentisexpensive;phonecompanies,likeallothercompanies,want to reduce the cost of doing business. If the state’s regulation is rational (that is, effective), itwill set thecostofdisobeyingthestateaboveanypossiblebenefit.If the targetof regulation is a rational actorwithin the reachof the state, then the regulationis likelytohaveits intendedeffect.CALEA’sregulationof thenetwork architecture for telephones is anobviousexampleof this (seeChapter5).

An unmovable, and unmoving, target of regulation, then, is a good start toward regulability.And this statement has an interesting corollary: Regulable code is closed code.Think again about telephone networks.When the govern-

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ment induces the telephone networks to modify their network software, users havenochoiceaboutwhethertoadoptthismodificationornot.Youpickupthe phone,youget thedial tonethephonecompanygivesyou.NooneIknowhacks the telephone company’s code to build a different network design. The same withtheV-chip—Idoubtthatmanypeoplewouldriskdestroyingtheirtelevision bypullingout thechip,andIamcertain thatnoonere-burns thechip tobuild inadifferent filtering technology.

Inbothcases thegovernment’sregulationworksbecausewhenthetargetof theregulationcomplies,customerscando littlebutaccept it.

Opencodeisdifferent.Wecanseesomethingof thedifferenceinastorytold by Netscape’s former legal counsel, Peter Harter, about Netscape and the French.24

In1996,Netscapereleasedaprotocol(SSLv3.0)tofacilitatesecureelectronic commerceontheWeb.Theessenceof its function is topermit secureexchange betweenabrowserandaserver.TheFrenchwerenothappywiththesecuritythat SSLgave;theywantedtobeabletocrackSSLtransactions.Sotheyrequestedthat NetscapemodifySSLtoenable their spying.

Thereareplentyof constraintsonNetscape’sability tomodifySSL—notthe leastof whichbeing thatNetscapehasgivenSSLover to thepublic, in the form of apublic standard.Butassumefora secondthat ithadnot.AssumeNetscape reallydidcontrol the standards forSSLand in theorycouldmodify thecode to enable French spying.Would that mean that Netscape could comply with the Frenchdemand?

No.Technically, it could comply by modifying the code of Netscape Com- municator and then posting a new module that enabled hacking by a govern- ment. But because Netscape (or more generally, the Mozilla project) is open source, anyone is free to build a competing module that would replace the FrenchifiedSSLmodule.Thatmodulewouldcompetewithothermodules.The module that wins would be the one users wanted.Users don’t typically want a module that enables spyingbyagovernment.

Thepoint is simple,but its implication isprofound.Totheextent thatcode isopencode,thepowerofgovernmentisconstrained.Governmentcandemand, governmentcanthreaten,butwhenthetargetof itsregulationisplastic,itcannot relyon its target remainingas itwants.

SayyouareaSovietpropagandist,andyouwanttogetpeopletoreadlotsof informationaboutPapaStalin.Soyoudeclare that everybookpublished in the Soviet Union must have a chapter devoted to Stalin. How likely is it that such bookswill actuallyaffectwhatpeople read?

Booksareopencode:Theyhidenothing; theyreveal their source—theyare their source!Auseroradopterof abookalwayshas thechoice to readonly the

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chapters she wants. If it is a book on electronics, then the reader can certainly choose not to read the chapter on Stalin.There is very little the state can do to modify thereader’spower in this respect.

Thesameidea liberatesopencode.Thegovernment’s rulesarerulesonly to theextent that they impose restrictions that adopterswouldwant.Thegovern- mentmaycoordinatestandards(like“driveontheright”),but itcertainlycannot impose standards that constrain users in ways they do not want to be con- strained.Thisarchitecture,then,isanimportantcheckonthegovernment’sreg- ulatorypower.Opencodemeansopencontrol—there iscontrol,but theuser is awareof it.25

Closed code functions differently. With closed code, users cannot easily modifythecontrol that thecodecomespackagedwith.Hackersandverysophis- ticated programmers may be able to do so, but most users would not know which parts were required and which parts were not. Or more precisely, users wouldnotbeabletoseethepartsrequiredandthepartsnotrequiredbecausethe sourcecodedoesnotcomebundledwithclosedcode.Closedcodeis thepropa- gandist’sbeststrategy—notaseparatechapterthattheusercanignore,butaper- sistent and unrecognized influence that tilts the story in the direction the propagandistwants.

SofarI’veplayedfastandloosewiththeideaofa“user.”Whilesome“users” ofFirefoxcouldchange itscode if theydidn’t like thewayit functioned,thevast majority could not. For most of us, it is just as feasible to change the way MicrosoftWordfunctionsas it is tochange thewayGNU/Linuxoperates.

Butthedifferencehere is that there is—andlegallycanbe—acommunityof developers who modify open code, but there is not—or legally cannot be—a communityof developerswhomodifyclosedcode,at leastwithout theowner’s permission.Thatcultureofdevelopers is thecriticalmechanismthatcreates the independencewithinopencode.Withoutthatculture,there’dbelittlerealdiffer- encebetweentheregulabilityof openandclosedcode.

This in turn impliesadifferent sortof limitonthis limitontheregulability of code.Communitiesofdevelopersare likelytoenablesometypesofdeviations fromrules imposedbygovernments.Forexample,they’requite likelytoresist the kindof regulationbytheFrenchtoenablethecrackingof financialsafety.They’re less likely todisablevirusprotectionor spamfilters.

WHERE THIS LEADS

My argument so far has taken a simple path. In answer to those who say that the Net cannot be regulated, I’ve argued that whether it can be regulated depends on its architecture. Some architectures would be regulable, others

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would not. I have then argued that government could take a role in deciding whether an architecture would be regulable or not. The government could take steps to transform an architecture from unregulable to regulable, both indirectly (bymakingbehaviormore traceable)anddirectly (byusingcode to directly effect the control the government wants).

The final step in this progression of regulability is a constraint that is only now becoming significant. Government’s power to regulate code, to makebehaviorwithin thecoderegulable,depends inparton thecharacterof thecode.Opencode is less regulable thanclosedcode; to theextent that code becomes open,government’s power is reduced.

Take for example the most prominent recent controversy in the area of copyright—peer-to-peer filesharing.As I’ve described, P2P filesharing is an application that runs on the network. Filesharing networks like StreamCast are simply protocols that P2P applications run.All these protocols are open; anyone can build to them.And because the technology for building to them is widely available, whether or not a particular company builds to them doesn’t affect whether they will be built to—but demand does.

Thus, imagine for themoment that therecording industry is successful in driving out of business every business that supports P2P filesharing. The industry won’t be successful in driving P2P out of existence. This is because opencodehasenablednoncommercial actors to sustain the infrastructureof P2P sharing,without the commercial infrastructure.

This is not, obviously, an absolute claim. I am discussing relative, not absolute, regulability.Evenwithopencode, if thegovernment threatenspun- ishments that are severe enough, it will induce a certain compliance. And evenwithopencode, the techniquesof identity, tied tocode thathasbeencer- tifiedas compliant,will still givegovernmentplentyof power.Thus,muchof the argument from Part I survives this point about open code—if the world becomescertificate-rich,regulability still increases.The sameconclusion fol- lows if more codewereburned intohardware rather than left to exist as soft- ware. Then, even if the code were open, it would not be modifiable.26

But when designing an architecture for cyberspace, the margins matter. The values of a given space are not only the values of speech, autonomy, access, or privacy.They may also be values of limited control.As John Perry Barlowputs it, theyare thevaluesof acertainbugbeingprogrammedinto the architectureof theNet—abug that inhibits thepowerof government tocon- trol the Net perfectly, even if it does not disable that power entirely.

For some, theobjective is tobuildcode thatdisables anypossiblegovern- mental control.That is not my objective. I certainly believe that government must be constrained, and I endorse the constraints that open code imposes,

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but it is not my objective to disable government generally. As I’ve argued already,andas thenextpartmakesplain, somevalues canbeachievedonly if government intervenes. Government has a role, even if not as substantial a roleas itwouldwish.Weneed tounderstand this role,aswell ashowourval- ues might be advanced in the context of theWeb.

One constraint seems clear in this account. As I argue more extensively later in the book, even if open code does not disable government’s power to regulate completely, it certainly changes that power. On the margin, open code reduces the reward from burying regulation in the hidden spaces of code. It functions as a kind of Freedom of InformationAct for network reg- ulation. As with ordinary law,open code requires that lawmaking be public, and thus that lawmaking be transparent. In a sense that George Soros ought to understand,open code is a foundation to an open society.

Even this is an important—some might say an essential—check on the power of government. But whether or not one is for transparency generally, my aim so far is just to map out the links. Regulability is conditional on the character of the code, and open code changes that character. It is a limit on government’s power to regulate—not necessarily by defeating the power to regulate,but by changing it.

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P A R T T H R E E

l a t e n t a m b i g u i t i e s

The story so far has focused on regulation—both the changing regulabil- ity of behavior in cyberspace (it is increasing) and the distinctive way in which behavior in cyberspace will be regulated (through code).

In this Part, I apply the analysis drawn so far to three areas of social and political life that will be affected by these changes—intellectual prop- erty, privacy, and free speech.

In each of these areas, I will identify values that are relevant. I will then ask how those values translate to life online. In some cases, the values carry over quite directly, but, in others, they produce what I called in Chapter 2 a “latent ambiguity.” That ambiguity forces us to choose between two very different conceptions of the value at stake.My aim is not to make that choice, but instead simply to throw at least two options into relief.

I have another objective in each chapter as well. In my view, the most important lesson about law in cyberspace is the need for law to account for the regulatory effect of code. Just as the wise regulator accounts for the way the market interacts with legal regulation, so too the wise regulator must account for the ways in which technology interacts with legal regu- lation. That interaction is often counterintuitive. But unless a regulator

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takes this interactive effect into account, the regulation—whether to con- trol behavior or to protect certain liberties—will fail.

To know what values are relevant,however,we need a method for car- rying values into a new context. I begin this part with an account of that method.The values I will describe are part of our tradition, and they need to be interpreted and made real in this context. Thus, I begin this part with one approach that the law has developed for recognizing and respect- ing these values. This is the interpretive practice I call “translation.” A translator practices a fidelity to earlier commitments to value. Latent ambiguities are those instances where fidelity runs out. We have nothing to be faithful to, because the choices we now face are choices that our for- bears did not.1

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N I N E

t r a n s l a t i o n

AT THE HEIGHT OF A PREVIOUS WAR ON DRUGS—PROHIBITION, IN THE LATE 1920s—the federal government began using a technique of police work that startledmanybutprovedquite effective:wiretapping.1 Lifehad justbegun to move onto the wires, and, in an effort to take advantage of the evidence that this new medium might yield, the government began to tap phones without warrants.

Because law enforcement officials themselves were conflicted about the ethics of wiretapping, taps were used sparingly.Nonetheless, for threats per- ceived to be extremely grave, the technique was deployed. Illegal alcohol, the obsession of the age,was just such a threat.

Themost famousof these taps led to the1928SupremeCourt case Olm- stead v. United States.Thegovernmentwas investigatingoneof the largest ille- gal liquor import,distribution,and salesorganizations in thenation.Aspart of the investigation, the government began to tap the telephones used by dealers and their agents.Thesewereprivatephones,but the tapswere always secured without trespassing on the property of the targets.2 Instead, the taps were placed on the wires in places where the government had rightful access to the phone lines.

Using these taps, the government recorded many hours of conversations (775 typewritten pages, according to Justice Louis Brandeis),3 and it used these recordings to convict the defendants in the case. The defendants chal- lenged theuseof these recordings,claiming that thegovernmenthadviolated the Constitution in securing them. The Fourth Amendment protects “per- sons,houses,papers,andeffects,againstunreasonable searchesandseizures,” and this wiretapping, the defendants argued,was a violation of their right to be protected from unreasonable searches.

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Under then-existing law, it was plain that to enter the apartments of allegedbootleggerRoyOlmsteadandhis associates and search them(at least while they were gone), the government investigators would have needed a warrant, that is, theywouldhaveneededtheapprovalof a judgeormagistrate before invading thedefendants’privacy.This iswhat theFourthAmendment hadcometomean—that certainplaces (persons,houses,papers,andeffects) were protected by presumptively requiring a warrant before they could be invaded.4 Here there had been no warrant, and hence, as the defendants argued, the search had been illegal.The evidence had to be excluded.

Wemightpause toaskwhy.If weread the textof theFourthAmendment carefully, it is hard to see just where a warrant is required:

(a) The right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violated, and

(b) no Warrants shall issue, but upon probable cause, supported by Oath or

affirmation,andparticularlydescribing theplace tobesearched,andthepersons

or things to be seized.

TheFourthAmendment is really twocommands.(I’veadded“a”and“b” to help make the point.) The first says that a certain right (“the right of the People to be secure”) shall not be violated; the second limits the conditions under which a warrant shall be issued. But the text of the amendment does not statea relationshipbetween the firstpart and the secondpart.And it cer- tainlydoesnot say thata search isunreasonable if it isnot supportedbyawar- rant. So why the“warrant requirement”?5

To make sense of the amendment, we must go back to its framing. At that time, the legal protection against the invasion of privacy was trespass law.If someoneenteredyourpropertyandrifled throughyour stuff, thatper- son violated your common law rights against trespass. You could sue that person for trespass, whether he was a police officer or private citizen. The threat of such suits gave the police an incentive not to invade your privacy.6

Evenwithoutawarrant,however,a trespassingpoliceofficermighthavea numberof defenses.Theseboil down towhether the searchwas“reasonable.” But therewere two important facts about this reasonableness.First, thedeter- mination of reasonableness was made by a jury. Neighbors and peers of the officer judged whether his behavior had been proper. Second, in some cases reasonablenesswas foundasamatterof law—that is, the judgewould instruct the jury to find that the search had been reasonable. (For example,when the officer foundcontrabandonthepropertyof thedefendant,whether therewas sufficient suspicionbefore the searchornot, the searchwas reasonable.)7

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This regimecreatedobvious risks foranofficerbeforehe searchedsome- one’s property. If he searched and found nothing, or if a jury thought later that his search had not been reasonable, then he paid for his illegal behavior by being held personally liable for the rights he had violated.

But the regime also offered insurance against this liability—the warrant. If the officer secured a warrant from a judge before he made his search, the warrant immunizedhimagainst trespass liability. If he then foundnocontra- band or his search turned out to be unreasonable, he still had a defense to a suit.

Creating incentives was one aim of the original system.The law gave an officer an incentive to obtain a warrant before he searched; if he was uncer- tain, or wanted to avoid all risk of liability,he could first check his judgment byaskinga judge.But if theofficerwas sure,orwanted tohazard thegamble, then not getting a warrant did not make the search automatically unreason- able. He was at risk of increased liability, but his liability was all that was at stake.

The weak link in this system was the judge. If judges were too lax, then warrants would be too easy to get,8 and weak judges were a concern for the framers.UnderBritish rule judgeshadbeenappointedby theCrown,andby the time of the Revolution, the Crown was the enemy. Having seen much abuseof thepower to issuewarrants, the framerswerenotkeen togive judges control in determining whether the government’s searches were reasonable.

Inparticular (as Idescribed inChapter2), the framershad inmindsome famouscases inwhich judgesandtheexecutivehad issued“generalwarrants” givinggovernmentofficers thepower tosearchgenerally forobjectsof contra- band.9 Inmodern terms, thesewere“fishingexpeditions.”Because theofficers hadwarrants, theycouldnotbesued;because the judgeswere largely immune from suit, they could not be sued.Because no one could be sued, there was a temptation for abuse. The framers wanted to avoid just such judge-made abuse. If therewas tobe immunity, itwouldcomefroma jury,or fromasuc- cessful search.

This is the origin of clause (b) of the Fourth Amendment. The framers required that judges,when issuing warrants, name particularly“the place to be searched,and thepersonsor things tobe seized,”so that judgeswouldnot be able to issue warrants of general power. The immunity of the warrant would be limited to particular people and places, and only when probable cause existed to issue the warrant.

This constitutional regimewasdesigned tobalance thepeople’s interests inprivacyagainst the legitimateneed for thegovernment to search.Theoffi- cer had an incentive to get a warrant (to avoid the risk of personal liability);

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the judgehadarule that restricted theconditionsunderwhichhecould issue awarrant; andtogether these structures limitedofficial invasionsof privacy to cases that presented a strong reason to invade.

That much is background.But notice what follows. Theoriginal regimepresupposedagreatdeal.Mostobviously, it presup-

posedacommon-lawsystemof trespass law—itwas the threatof legal liability from trespass law that created the incentives for officers to seek warrants in the firstplace.Thispresuppositionplacedproperty at thecoreof theConsti- tution’s original protections.

Equally important, the regime presupposed much about the technology of the time. The Fourth Amendment focuses on trespass because that was the primary mode of searching at the time. If it had been possible simply to view the contents of a house without going inside, the restrictions of the FourthAmendment would have made little sense.But the protections of the amendment did make sense as a way to draw the balance between govern- ment’s power to search and the people’s right to privacy given the regime of trespass lawandprivacy-invading technologies thatprevailedat theendof the eighteenth century.

Presuppositions—what is taken forgrantedorconsideredundebatable— change.10 Howdowerespondwhensuchpresuppositionschange?Howdowe read a text written against a background of certain presuppositions when those presuppositions no longer apply?

ForAmericans,or for any nation with a constitution some two hundred yearsold, this is thecentralproblemforconstitutional interpretation.What if stategovernments, forexample,were simply toabolishrightsagainst trespass? Would the amendment be read any differently?11 What if technologies for searching were to change so dramatically that no one would ever need to enter another’s property toknowwhat is kept there? Should theamendment then be read differently?

The history of the Supreme Court’s treatment of such questions lacks a perfectly clear pattern,but we can identify two distinct strategies competing for the Court’s attention. One strategy is focused on what the framers or founderswouldhavedone—thestrategyof one-steporiginalism.Thesecond strategy aims at finding a current reading of the original Constitution that preserves its original meaning in the present context—a strategy that I call translation.

Both strategies are present in the Olmstead wiretapping case. When the government tapped the phones of the defendants without any warrant, the Courthad todecidewhether theuseof thiskindof evidencewaspermissible or consistent with the principles of the FourthAmendment.The defendants

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said: The government must get a warrant to tap phones. The government said:The FourthAmendment simply does not apply.

The government’s argument was quite simple.The amendment presup- posed that thegovernmentwouldbe trespassing to search,and itwas regulat- ing the conditions under which officers could trespass. But because wiretapping is an invasion of privacy without a trespass, the government is able to tap the defendants’ phones without ever entering their property; the amendment thereforedoesnotapply. It simplydoesnot reach toprotect inva- sions that are invasions without trespass.

The Supreme Court agreed. In an opinion written by Chief Justice (and formerPresident)WilliamHowardTaft, theCourt followed thegovernment.

The amendment does not forbid what was done here. There was no searching.Therewasno seizure.Theevidencewas securedonlyby theuseof the senseof hearingandthatonly.The languageof theamendmentcannotbe extended and expanded to include telephone wires reaching to the whole world from the defendant’s house or office.12

This conclusion was received with surprise and shock.Already much of life had moved to the wires. People were beginning to understand what it meant to have intimate contact“online”; they counted on the telephone sys- tem to protect their intimate secrets. Indeed, telephone companies, having strongly fought the authority that the government claimed, pledged not to assist the government except as required by law.13 This resistance notwith- standing, the Court concluded that the Constitution did not interfere with invasions of this sort. It would not have done so when the Constitution was written; it did not do so at the time when the case was decided.

But thedissentwrittenbyJusticeBrandeis (therewasalsoadissentby Jus- tices Holmes, Stone, and Butler) had a different view.As with Taft’s opinion, the focus was fidelity.But his fidelity was quite differently conceived.

Brandeis acknowledged that the Fourth Amendment, as originally writ- ten, applied only to trespass.14 But it did so, he argued, because when it was written trespass was the technology for invading privacy. That was the framers’ presupposition, but that presupposition had now changed. Given this change, Brandeis argued, it was the Court’s responsibility to read the amendment in a way that preserved its meaning, changed circumstances notwithstanding.Theaimmustbe to translate theoriginalprotections intoa context in which the technology for invading privacy had changed.15 This would be done,Brandeis argued,by applying the FourthAmendment’s pro- tection to invasions that were not themselves trespasses.

These twoopinionsmark twodifferentmodesof constitutional interpre- tation. Taft finds fidelity by simply repeating what the framers did; Brandeis

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finds fidelity by finding the current equivalent to what the framers did. If we followed Taft, Brandeis argued, we would defeat the protections for privacy that the framersoriginally set; if we followedBrandeis,Taft implied,wewould beadding something to theConstitution that the framershadnotwritten.

Partisansonbothsides claimedthat theopinionof theotherwouldhave “changed”the meaning of the Constitution.But whose opinion, the Court’s or Justice Brandeis’s, would really “change” the meaning of the Fourth Amendment?

Toanswer thisquestion,wemust first ask:Changerelative towhat?What is the baseline against which this change is a change? Certainly Brandeis wouldhaveagreed that in1791any findingby theCourt that theamendment reached beyond trespass would have been improper. But when something presupposed by the original amendment has changed, is it clear that the Court’s proper response is to act as if nothing has changed at all?

Brandeis’smethodaccounted for thechangedpresupposition.Heoffered a reading that changed the scopeof theamendment inorder tomaintain the amendment’sprotectionof privacy.Taft,on theotherhand,offeredareading that maintained the scope of the amendment but changed its protection of privacy.Eachreadingkept somethingconstant; eachalsochangedsomething. The question is: Which reading preserved what fidelity demands should be preserved?

We might better see the point through a somewhat stylized re-creation. Imagine thatwecouldquantifyprivacy;wecould thusdescribe thechange in the quantity of privacy that any change in technology might bring. (Robert Post has given an absolutely persuasive argument about why privacy is not quantifiable, but my purposes here are simply illustrative.16) Imagine that in 1791 protecting against physical trespass protected 90 percent of personal privacy. The government could still stand on the street and listen through openwindows,but the invasionpresentedby that threatwas small, all things considered. For the most part, a regime that protected against trespass also protected privacy.

When telephones camealong,however, this protectionchanged.A lotof private information was put out across the phone lines.Now, if tapping was not trespass,much lessof private lifewasprotected fromgovernment snoop- ing.Rather than90percentbeingprotectedby the amendment,only 50per- cent was protected.

Brandeis wanted to read the amendment so that it protected the 90 per- cent it originally protected—even though doing so required that it protect against more than simple trespass.He wanted to read it differently,we could say, so that it protected the same.

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This formof argument is commoninourconstitutionalhistory,and it is central to the best in our constitutional tradition.17 It is an argument that responds to changed circumstances by proposing a reading that neutralizes those changes and preserves an original meaning. It is an argument invoked by justicesonboth the rightandthe left,18 and it is away tokeep life inacon- stitutional provision—to make certain that changes in the world do not change the meaning of the Constitution’s text. It is an argument,we can say, that aims at translating the protections that the Fourth Amendment gave in 1791 into the same set of protections at any time later in our history. It acknowledges that todo this theCourtmayhave to read theamendmentdif- ferently, but it is not reading the amendment differently to improve the amendment or to add to its protections. It is reading the amendment differ- ently to accommodate the changes in protection that have resulted from changes in technology. It is translation to preserve meaning.

If there is a justicewhodeserves cyberspace’spraise, if there is aSupreme Court opinion that should be the model for cyber activists in the future, if there is a first chapter in the fight to protect cyberspace, it is this justice, this opinion,and this case.Brandeis gaveusamodel for reading theConstitution topreserve itsmeaning,and its values,across timeandcontext. It is amethod that recognizeswhathaschangedandaccommodates that change topreserve somethingof what the framersoriginallygaveus. It is amethodthat translates theConstitution’smeaningacross fundamentallydifferentcontexts—whether they are as temporally distant as we are from the framers or as distant as cyberspace is from real space.

But it was Taft’s opinion that became law and his narrow view of the FourthAmendment thatprevailed. It took fortyyears for theSupremeCourt to embrace Brandeis’s picture of the Fourth Amendment—40 years before Olmstead was overruled.The case overruling it was Katz v. United States.19

Charles Katz was suspected of transmitting gambling information to clients inother statesby telephone.Federal agents recordedhishalf of several of his telephone calls by attaching an eavesdropping device to the outside of a public phone booth where he made his calls. Katz was convicted on the basis of this evidence, and the court of appeals upheld the conviction on the basis of Olmstead.

HarvardLawSchoolProfessorLaurenceTribewas involved in thecaseat the beginning of his legal career:

Asa [law]clerk toSupremeCourt JusticePotterStewart, I foundmyself workingon

a case involving the government’s electronic surveillance of a suspected criminal in

the formof a tinydeviceattachedto theoutsideof apublic telephonebooth.Because

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the invasion of the suspect’s privacy was accomplished without physical trespass

into a “constitutionally protected area,” the Federal Government argued, relying

upon Olmstead, that therehadbeenno“search”or“seizure”andtherefore theFourth

Amendment“right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures”simply did not apply.

At first, therewereonly fourvotes tooverrule Olmstead andtohold theFourth

Amendment applicable to wiretapping and electronic eavesdropping. I’m proud to

say that,as a26-year-oldkid, Ihadat least a littlebit todowithchanging thatnum-

ber fromfour to seven—andwith theargument, formallyadoptedbyaseven-Justice

majority in December 1967, that the Fourth Amendment “protects people, not

places” [389 US at 351]. In that decision, Katz v. United States, the Supreme Court

finally repudiated Olmstead and themanydecisions thathad reliedupon it, reason-

ing that, given the role of electronic telecommunications in modern life, the [First

Amendment]purposesof protecting free speechaswell as the[FourthAmendment]

purposes of protecting privacy require treating as a“search”any invasion of a per-

son’s confidential telephone communications,with or without physical trespass.20

TheCourt in Katz followedBrandeis rather thanTaft. It soughta reading of the Fourth Amendment that made sense of the amendment in a changed context. In the framers’ context of 1791,protecting against trespass to prop- ertywasaneffectiveway toprotect against trespass toprivacy,but in the Katz context of the 1960s it was not. In the 1960s much of intimate life was con- ducted inplaceswhereproperty rulesdidnot reach(in the“ether,”for exam- ple, of the AT&T telephone network). And so a regime that made privacy hangonpropertydidnotprotectprivacy to the samedegree that the framers had intended. Justice Stewart in Katz sought to remedy that by linking the FourthAmendment to a more direct protection of privacy.

The link was the idea of “a reasonable expectation of privacy.”The core value, Stewart wrote,was the protection of“people,not places.”21 Hence, the core technique should be to protect people where they have a reasonable expectationof privacy.Where this is the case, the government cannot invade that space without satisfying the requirements of the FourthAmendment.

There ismuchtoadmire inStewart’sopinion,at least to theextent thathe is willing to fashion tools for preserving the Constitution’s meaning in changed circumstances—or again, to the extent that he attempts to translate the protections of the Fourth Amendment into a modern context. There is alsomuchtoquestion.22 Butwecanput thosequestionsaside for themoment and focus on one feature of the problem that is fairly uncontentious.

While lines will be hard to draw, it is at least fairly clear that the framers madeaconsciouschoice toprotectprivacy.Thiswasnotan issueoff the table

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of their original debate or a question they did not notice.And this is not the “right to privacy” that conservatives complain about in the context of the right to abortion. This is the right to be free from state intrusion into the “sanctity”of aprivatehome.State-enforced threats to individualprivacywere at the center of the movement that led to the republic.Brandeis and Stewart simply aimed toeffect that choice in contextswhere the earlier structurehad grown ineffectual.

Translations like theseare fairly straightforward.Theoriginal valuescho- sen are fairly clear; the way in which contexts undermine the original appli- cation is easilygrasped;andthereadings thatwouldrestore theoriginalvalues are fairly obvious. Of course, such cases often require a certain interpretive courage—awillingness topreserve interpretive fidelitybychangingan inter- pretive practice.But at least the direction is clear, even if the means are a bit unseemly.23

These are the easy cases. They are even easier when we are not trying to carry values from some distant past into the future but instead are simply carryingvalues fromonecontext intoanother.Whenweknowwhatvalueswe want to preserve,we need only be creative about how to preserve them.

Cyberspace will present many such easy cases. When courts confront them,they should followtheexampleof Brandeis:Theyshould translate,and they should push the Supreme Court to do likewise. Where circumstances have changed to nullify the protections of some original right, the Court should adopt a reading of the Constitution that restores that right.

But some cases will not be so easy. Sometimes translation will not be an option, and sometimes the values that translation would track are values we no longerwant topreserve.Sometimeswecannot tellwhichvalues translation would select.Thiswas theprobleminChapter2with theworm,whichmade the point about latent ambiguities.Changing contexts sometimes reveals an ambiguity latent in the original context.We must then choose between two different values, either of which could be said to be consistent with the orig- inal value. Since either way could be said to be right, we cannot say that the original context (whether now or two hundred years ago) decided the case.

Professor Tribe describes an example in a founding article in the law of cyberspace,“The Constitution in Cyberspace.”24 Tribe sketches a method of reading the Constitution in cyberspace that aims to make the Constitution “technologicallyneutral.”Theobjective is toadopt readings (orperhapseven an amendment) that make it plain that changes in technology are not to change the Constitution’s meaning. We must always adopt readings of the Constitution thatpreserve itsoriginal values.Whendealingwithcyberspace, judgesare tobe translators:Different technologiesare thedifferent languages,

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andtheaimis to findareadingof theConstitution thatpreserves itsmeaning from one world’s technology to another.25

This is fidelity as translation. This kind of translation speaks as if it is just carryingover something thathasalreadybeensaid. Ithides thecreativity in its act; it feignsacertainpoliteor respectfuldeference.Thiswayof reading the Constitution insists that the important political decisions have already beenmadeandall that is required is akindof technical adjustment. It aims to keep the piano in tune as it is moved from one concert hall to another.

ButTribe thenoffersanexample thatmaymake thismethodseemempty. The question is about the meaning of the confrontation clause of the Sixth Amendment—thedefendant’s right inacriminal trial“tobeconfrontedwith thewitnesses againsthim.”How,Tribeasks, shouldweread this clause today?

At the time of the founding, he argues, the technology of confrontation was simple—confrontationwas two-way.If awitness confronted theaccused, theaccused,of necessity,confronted thewitness.Thiswasanecessitygiven to usby the technologyof the time.But today it is possible for confrontation to be one-way—the witness confronts the accused, but the accused need not confront the witness.The question then is whether the confrontation clause requires one-way or two-way confrontation.26

Let us grant that Tribe’s descriptions of the available technologies are correct and that the framers embraced the only confrontation clause that their technology permitted. The real question comes in step two. Now that technology allows two possibilities—one-way or two-way confrontation— which does the Constitution require?

The Court’s answer in its 1990 decision in Maryland v. Craig was clear: The Constitution requires only one-way confrontation. A confrontation clauseregimethatpermitsonlyone-wayconfrontation,at leastwhenthereare strong interests in not requiring two, is a fair translation of the original clause.27

Asamatterof political choice, I certainly like this answer.But Idonot see its source. It seems to me that this is a question the framers did not decide, andaquestion that if presented to themmightwellhavedivided them.Given the technology of 1791, they did not have to decide between one-way and two-way confrontation; given the conflict of values at stake, it is not obvious howtheywouldhavedecided it.Thus, to speakas if therewereananswerhere that the framersgaveus is abitmisleading.The framersgavenoanswerhere, and, in my view,no answer can be drawn from what they said.

Like the worm in Chapter 2, the confrontation clause presents a latent ambiguity.28 Constitutional law in cyberspace will reveal many more such latentambiguities.Andtheseambiguitiesofferusachoice:Howwillwegoon?

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Choices arenot terrible. It is not adisaster if wemustmakeadecision— as long as we are capable of it. But here is the nub of the problem as I see it. As I argue inmoredetail inPart IV,given the current attitudesof our courts, andour legal culturegenerally,constitutional choicesarecostly.Wearebadat making them;we are not likely to get better at it soon.

When there is no answer about how to proceed—when the translation leaves open a question—we have two sorts of responses in constitutional practice.Oneresponse ispassive:Thecourt simply lets the legislaturedecide. This is the response that JusticeScaliapresses in thecontextof theFourteenth Amendment.Onmatters that, to the framers,were“undebatable,”theConsti- tutiondoesnot speak.29 In this case,only the legislaturecanengageandpress questionsof constitutionalvalueandthus saywhat theConstitutionwill con- tinue to mean.

The second response is more active: The court finds a way to articulate constitutional values that were not present at the founding. The courts help spur a conversation about these fundamental values—or at least add their voice to this conversation—to focusadebate thatmayultimatelybe resolved elsewhere.The first response is awayof doingnothing; the second is awayof excitingadialogueaboutconstitutionalvaluesasameans toconfrontingand resolving new questions.30

Myfearaboutcyberspace is thatwewill respondin the firstway—that the courts, the institutionsmost responsible forarticulatingconstitutionalvalues, will stand back while issues of constitutional import are legislatively deter- mined.Mysense is that theywill stepbackbecause they feel (as thebalanceof this book argues) that these are new questions that cyberspace has raised. Theirnewnesswillmake themfeel political, andwhenaquestion feels polit- ical, courts step away from resolving it.

I fear thisnotbecause I fear legislatures,butbecause inourdayconstitu- tional discourse at the level of the legislature is a very thin sort of discourse. The philosopher Bernard Williams has argued that because the Supreme Court has taken so central a role in the articulation of constitutional values, legislatures no longer do.31 Whether Williams is correct or not, this much is clear: The constitutional discourse of our present Congress is far below the level atwhich itmustbe toaddress thequestions about constitutional values that will be raised by cyberspace.

Howwecouldreachbeyondthis thinnessof discourse isunclear.Consti- tutional thoughthasbeen thedomainof lawyers and judges for too long.We havebeentrappedbyamodeof reasoning thatpretends thatall the important questionshavealreadybeenanswered, thatour jobnowis simply to translate them for modern times. As a result, we do not quite know how to proceed

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whenwe think theanswers arenot already there.Asnations across theworld struggle to express and embrace constitutional values, we, with the oldest writtenconstitutional tradition,have lost thepracticeof embracing,articulat- ing, and deciding on constitutional values.

I return to this problem in Chapter 15. For now, my point is simply descriptive. Translation is one way to deal with the choices that cyberspace presents. It is one way of finding equivalence across contexts.But in the four applications that follow, I press the question: Is the past enough? Are there choices the framers did not address?Are they choices that we must make?32

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T E N

i n t e l l e c t u a l p r o p e r t y

HAROLD REEVES IS AMONG THE BEST RESEARCH ASSISTANTS I HAVE HAD.(BUT ALAS, the law has now lost him—he’s become a priest!). Early into his second year at the University of Chicago Law School,he came to me with an idea he had for a student “comment”—an article that would be published in the law review.1 The topic was trespass law in cyberspace—whether andhow the law should protect owners of space in cyberspace from the kinds of intrusions that trespass law protects against in real space. His initial idea was simple: There should be no trespass law in cyberspace.2 The law should grant“own- ers” of space in cyberspace no legal protection against invasion; they should be forced to fend for themselves.

Reeves’s idea was a bit nutty, and in the end, I think,wrong.3 But it con- tainedan insight thatwasquitebrilliant,and that shouldbecentral to think- ing about law in cyberspace.

The idea—much more briefly and much less elegantly than Reeves has put it—is this:Thequestion that lawshouldask is,Whatmeanswouldbring about themostefficient setof protections forproperty interests incyberspace? Two sorts of protections are possible. One is the traditional protection of law—the law defines a space where others should not enter and punishes peoplewhoenternonetheless.Theotherprotection is a fence,a technological device (a bit of code) that (among other things) blocks the unwanted from entering. In real space,of course,we have both—law, in the form of trespass law, and fences that supplement that law. Both cost money, and the return from each is not necessarily the same. From a social perspective, we would want the mix that provides optimal protection at the lowest cost. (In eco- nomics-speak, we would want a mix such that the marginal cost of an addi- tional unit of protection is equivalent to the marginal benefit.)

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The implicationof this idea inreal space is that it sometimesmakes sense to shift the burden of protection to citizens rather than to the state. If, for example, a farmer wants to store some valuable seed on a remote part of his farm, it isbetter forhimtobear thecostof fencing in the seed than torequire thepolice topatrol the areamore consistentlyor to increase thepunishment for those they catch.The question is always one of balance between the costs and benefits of private protection and state protection.

Reeves’s insight about cyberspace follows the same line. The optimal protection for spaces in cyberspace is a mix between public law and private fences.The question to ask in determining the mix is which protection,on the margin, costs less.Reeves argues that the costs of law in this context are extremely high—in part because of the costs of enforcement, but also because it is hard for the law to distinguish between legitimate and illegiti- mate uses of cyberspaces. There are many “agents” that might “use” the spaceof cyberspace.Web spiders,which gatherdata for web search engines; browsers, who are searching across the Net for stuff to see; hackers (of the goodsort)whoare testing the locksof spaces to see that theyare locked; and hackers (of the bad sort) who are breaking and entering to steal. It is hard, ex ante, for the law to know which agent is using the space legitimately and which is not. Legitimacy depends on the intention of the person granting access.

So that ledReeves tohis idea:Since the intentof the“owner”is socrucial here, and since the fences of cyberspace can be made to reflect that intent cheaply, it is best to put all the incentive on the owner to define access as he wishes.Theright tobrowseshouldbe thenorm,andtheburdento lockdoors should be placed on the owner.4

Now put Reeves’s argument aside, and think for a second about some- thing that will seem completely different but is very much the same idea. Think about“theft”and the protections that we have against it.

• Ihavea stackof firewoodbehindmyhouse.Noonesteals it. If I leftmybikeout

overnight, it would be gone.

•A friend toldmethat, ina favoritebeach town,thecityused to find it impossible

to plant flowers—they would immediately be picked. But now, he proudly

reports, after a long “community spirit” campaign, the flowers are no longer

picked.

• There are special laws about the theft of automobiles, planes, and boats. There

are no special laws about the theft of skyscrapers.Cars, planes, and boats need

protection.Skyscrapers pretty much take care of themselves.

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Manythingsprotectpropertyagainst theft—differently.Themarketpro- tectsmyfirewood(it is cheaper tobuyyourownthan it is tohaulmineaway); themarket is a special threat tomybike (which if taken is easily sold).Norms sometimes protect flowers in a park; sometimes they do not. Nature some- times conspires with thieves (cars,planes, and boats) and sometimes against them (skyscrapers).

These protections are not fixed. I could lock my bike and thereby use real-space code to make it harder to steal. There could be a shortage of fire- wood;demandwould increase,making itharder toprotect.Public campaigns aboutcivicbeautymight stop flower theft; selectingadistinctive flowermight dothe same.Sophisticated locksmightmakestolencarsuseless; sophisticated bank fraudmightmake skyscrapers vulnerable.Thepoint isnot thatprotec- tions are given, or unchangeable, but that they are multiplied and their modalities different.

Property is protected by the sum of the different protections that law, norms, the market, and real-space code yield. This is the implication of the argumentmade inChapter7.Fromthepointof viewof thestate,weneed law only when the other three modalities leave property vulnerable. From the pointof viewof thecitizen,real-spacecode(suchas locks) isneededwhenlaws andnormsalonedonotprotect enough.Understandinghowproperty ispro- tectedmeansunderstandinghowthesedifferentprotectionswork together.

Reeves’s idea and these reflections on firewood and skyscrapers point to thedifferentways that lawmightprotect“property”andsuggest the rangeof kinds of property that law might try to protect. They also invite a question that has been asked by Justice Stephen Breyer and many others: Should law protect somekindsof property—inparticular, intellectualproperty—atall?5

Amongthekindsof property lawmightprotect,my focus in this chapter will be on the property protected by copyright.6 Of all the different types of property, this type is said tobe themostvulnerable to thechanges that cyber- space will bring.Many believe that intellectual property cannot be protected in cyberspace. And in the terms that I’ve sketched, we can begin to see why one might think this,but we will soon see that this thought must be wrong.

ON THE REPORTS OF COPYRIGHT’S DEMISE

Roughly put, copyright gives a copyright holder certain exclusive rights over the work, including, most famously, the exclusive right to copy the work. I haveacopyright in thisbook.Thatmeans,amongother rights,andsubject to some important exceptions, you cannot copy this book without my permis- sion.Theright isprotected to theextent that laws(andnorms)support it,and

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it is threatened to theextent that technologymakes it easy tocopy.Strengthen the lawwhileholding technologyconstant,and the right is stronger.Prolifer- ate copying technology while holding the law constant, and the right is weaker.

In this sense,copyrighthasalwaysbeenatwarwith technology.Before the printingpress, therewasnotmuchneed toprotect anauthor’s interest inhis creativework.Copyingwassoexpensive thatnature itself protected that inter- est. But as the cost of copying decreased, and the spread of technologies for copying increased, the threat to theauthor’s control increased.Aseachgener- ation has delivered a technology better than the last, the ability of the copy- right holder to protect her intellectual property has been weakened.

Until recently, the law’s response to these changes has been measured and gradual. When technologies to record and reproduce sound emerged at the turnof the lastcentury,composerswerethreatenedbythem.Thelawresponded bygiving composers anew,but limited, right toprofit fromrecordings.When radio began broadcasting music, the composers were held to be entitled to compensation for the public performance of their work,but performers were not compensated for the“performance”of their recordings.Congress decided not to remedy that problem.When cable television started rebroadcasting tel- evisionbroadcasts, thecopyrightholders intheoriginalbroadcastscomplained theirworkwasbeingexploitedwithoutcompensation.Congress respondedby granting the copyright holders a new, but limited, right to profit from the rebroadcasts. When the VCR made it simple to record copyrighted content from off the air, copyright holders cried “piracy.” Congress decided not to respondtothatcomplaint.Sometimes thechange intechnology inspiredCon- gress tocreatenewrights,andsometimesnot.But throughout thishistory,new technologieshavebeenembracedas theyhaveenabled the spreadof culture.

{TXB2} During the same period,norms about copyrighted content also evolved.But the single, defining feature of these norms can perhaps be summarized like this: that a consumer could do with the copyrighted content that he legally ownedanythinghewantedtodo,withoutever triggering the lawof copyright. Thisnormwas truealmostbydefinitionuntil 1909,sincebefore then, the law didn’t regulate “copies.”Any use the consumer made of copyrighted content was thereforehighlyunlikely to triggeranyof theexclusiverightsof copyright. After 1909, though the law technically regulated“copies,” the technologies to make copies were broadly available. There was a struggle about Xerox machines, which forced a bit of reform,7 but the first real conflict that copy- right law had with consumers happened when cassette tapes made it easy to copy recorded music. Some of that copying was for the purpose of making a

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“mixedtape,”andsomewassimply for thepurposeof avoidingtheneedtobuy theoriginal recording.Aftermanyyearsofdebate,Congressdecidednot to leg- islateabanonhometaping. Instead, in theAudioHomeRecordingAct,Con- gress signaled fairly clear exemptions from copyright for such consumer activity.These changes reinforced thenormamongconsumers that theywere legally free todowhatever theywantedwithcopyrightedwork.Giventhe tech- nologiesmost consumershadaccess to, the stuff theywanted todoeitherdid not trigger copyright (e.g., resell their books to a used bookstore),or if it did, the lawwasmodified toprotect it (e.g., cassette tapes).

Against thebackgroundof thesegradual changes in the law,alongwith the practicalnormthat, inthemain,the lawdidn’t reachconsumers,thechangesof digital technologywereaconsiderableshock.First,fromtheperspectiveof tech- nology,digital technologies,unlike their analog sister, enabledperfect copiesof an original work. The return from copying was therefore greater. Second, also fromtheperspectiveof technology,thedigital technologyof theInternetenabled contenttobefreely(andeffectivelyanonymously)distributedacrosstheInternet. The availability of copies was therefore greater. Third, from the perspective of norms,consumerswhohadinternalizedthenormthattheycoulddowith“their content”whatever theywantedused thesenewdigital tools tomake“their con- tent” available widely on the Internet. Companies such as Napster helped fuel thisbehavior,butthepracticeexistedbothbeforeandafterNapster.Andfourth, from the perspective of law,because the base technology of the Internet didn’t revealanythingabout thenatureof thecontentbeingsharedontheInternet,or about who was doing the sharing, there was little the law could do to stop this massive“sharing”of content.Thus fifth,and fromtheperspectiveof copyright holders, digital technologies and the Internet were the perfect storm for their businessmodel: If theymademoneybycontrolling thedistributionof“copies” of copyrightedcontent,youcouldwellunderstandwhytheyviewedtheInternet asagrave threat.

Very quickly, and quite early on, the content industry responded to this threat.Their first line of defense was a more aggressive regime of regulation. Because, thepredictionsof cyberspacemavensnotwithstanding,noteveryone was willing to concede that copyright law was dead. Intellectual property lawyers and interest groupspushedearlyon tohave lawshoreup theprotec- tions of intellectual property that cyberspace seemed certain to erase.

LAW TO THE RESCUE

The initial response to this push was a White Paper produced by the Com- merce Department in 1995. The paper outlined a series of modifications

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aimed, it said, at restoring “balance” in intellectual property law. Entitled “Intellectual Property and the National Information Infrastructure,” the report sought torestateexisting intellectualproperty lawin termsthatanyone couldunderstand,aswell as to recommendchanges in the law in response to the changes the Net would bring. But as scholars quickly pointed out, the first part was a bust.8 The report no more“restated”existing law than Soviet historians “retold” stories of Stalin’s administration. The restatement had a tilt, very definitely in the direction of increased intellectual property protec- tion, but it pretended that its tilt was the natural lay of the land.

For our purposes, however, it is the recommendations that were most significant.Thegovernmentproposed four responses to the threatpresented by cyberspace. In the terms of Chapter 7, these responses should be familiar.

The first responsewas traditional.Thegovernmentproposedchanges in the law of copyright to “clarify” the rights that it was to protect.9 These changes were intended to better define the rights granted under intellectual property law and to further support these rights with clarified (and possibly greater) legal penalties for their violation.

The second response addressed norms, specifically copying norms.The report recommended increased educational efforts, both in schools and among the general public, about the nature of intellectual property and the importance of protecting it. In the terms of Chapter 7, this is the use of law tochangenormsso thatnormswill better support theprotectionof intellec- tual property. It is an indirect regulation of behavior by direct regulation of norms.

The third and fourth responses mixed technology and the market. The report called for legal support—through financial subsidies and special legal protection—of“copyrightmanagement schemes.”These“schemes”were sim- ply technologies that would make it easier to control access to and use of copyrightedmaterial.Wewill explore these“schemes”at some length later in this chapter,but I mention them now as another example of indirect regula- tion—using the market to subsidize the development of a certain software tool, and using law to regulate the properties of other software tools. Copy- right management systems would be supported by government funding and by the threat of criminal sanctions for anyone deploying software to crack them.10

Congress followedtherecommendationsof the1995WhitePaper insome respects. The most important was the enactment of the Digital Millennium CopyrightAct in1998.That statute implementeddirectly therecommendation that“technologicalprotectionmeasures”beprotectedby law.Codethat some- one implements to control either access to or use of a copyrighted work got

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special legalprotectionunder theDMCA:Circumventionof thatcode,subject to a few important exceptions, constitutedaviolationof the law.

Wewill return to theDMCAlater.Thepoint justnow,however, is to rec- ognize something important about the presumption underlying the White Paper.The1995packageof proposalswasa scattershotof techniques—some changes in law, some support for changing norms, and lots of support for changing the code of cyberspace to make it better able to protect intellectual property. Perhaps nothing better than this could have been expected in 1995—the law promised a balance of responses to deal with the shifting bal- ance brought on by cyberspace.

Balance is attractive,andmoderationseemsright.But something ismiss- ing from this approach.The White Paper proceeds as if the problem of pro- tecting intellectual property in cyberspace was just like the problem of protecting intellectual property in real space. It proceeds as if the four con- straints would operate in the same proportions as in real space, as if nothing fundamental had changed.

But something fundamental has changed: the role that code plays in the protection of intellectual property. Code can, and increasingly will, displace law as the primary defense of intellectual property in cyberspace. Private fences,not public law.

TheWhitePaperdidnot see this.Built into its scattershotof ideas is one that is crucial to its approachbut fundamentally incorrect—the idea that the natureof cyberspace is anarchy.TheWhitePaperpromises to strengthen law ineveryarea it can.But it approaches thequestion likea shipbatteningdown fora storm:Whateverhappens, the threat tocopyright is real,damagewill be done, and the best we can do is ride it out.

This is fundamentallywrong.Wearenotenteringa timewhencopyright is more threatened than it is in real space. We are instead entering a time when copyright is more effectively protected than at any time since Guten- berg.Thepower toregulateaccess toanduseof copyrightedmaterial is about to be perfected. Whatever the mavens of the mid-1990s may have thought, cyberspace is about togiveholdersof copyrightedproperty thebiggest giftof protection they have ever known.

In such an age, the real question for law is not, how can law aid in that protection? but rather, is the protection too great? The mavens were right whentheypredicted that cyberspacewill teachus that everythingwe thought about copyright was wrong.11 But the lesson in the future will be that copy- right isprotected far toowell.Theproblemwill centernotoncopy-rightbut oncopy-duty—thedutyof ownersof protectedproperty tomake thatprop- erty accessible.

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That’s a big claim. To see it, however, and to see the consequences it entails,we need consider three examples.The first is a vision of a researcher from Xerox PARC (appropriately enough), Mark Stefik, and his idea of “trusted systems.”12 The second is an implication of a world dominated by trustedsystems.The third is anunreckonedcost to thepathwearenowonto “protect intellectual property.”The examples will throw into relief the threat that these changespresent for values thatour traditionconsiders fundamen- tal.They should forceus tomakeachoiceabout thosevalues,andabout their place in our future.

THE PROMISE FOR INTELLECTUAL PROPERTY IN CYBERSPACE

It all depends on whether you really understand the idea of trusted sys- tems. If you don’t understand them, then this whole approach to com- merce and digital publishing is utterly unthinkable. If you do understand them, then it all follows easily.

Ralph Merkle,quoted in Stefik,“Letting Loose the Light”(1996)

In what we can call the first generation of digital technologies, content ownerswereunable tocontrolwhocopiedwhat. If youhaveacopyof acopy- rightedphotorendered inagraphics file,youcouldmakeunlimitedcopiesof that file with no effect on the original. When you make the one-hundredth copy,nothingwould indicate that itwas theone-hundredthcopyrather than the first.And as we’ve described again and again, in the original code of the Internet, therewasnothing to regulatehowor towhomcopyrightedcontent was distributed.The function of“copying”as it was developed by the coders who built it, either in computers or networks, aimed at “copying”—not at “copying”with specified permissions.

This character to the function“copy”was not unique to cyberspace.We have seen a technology that presented the same problem, and I’ve already describedhowasolutionwas subsequentlybuilt into the technology.13 Digital AudioTape(DAT)technologywas thought tobea threat tocopyrightowners. A number of solutions to this threat were proposed.Some people argued for higher penalties for illegal copying of tapes (direct regulation by law).Some, such as Richard Stallman, argued for a tax on blank tapes,with the proceeds compensating copyright holders (indirect regulation of the market by law). Someargued forbetter education to stop illegal copiesof tapes (indirect reg- ulation of norms by law).But some argued for a change in the code of DAT machines that would block unlimited perfect copying.

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The taxandcode regulatorswon. In late 1992,as a compromisebetween the technology and content industries, Congress passed the Audio Home RecordingAct.The act first imposed a tax on both recorders and blank DAT media,with the revenues tobeused to compensate copyrightholders for the expectedcopyright infringement enabledby the technology.Butmore inter- estingly, theAct requiredmanufacturersof DATtechnology to includeaSerial CopyManagementSystem,whichwould limit the abilityof DATtechnology tocopy.That limitwaseffected throughacode inserted incopiesmadeusing DAT technology. From an original, the technology would always permit a copy.But fromacopymadeonaDATrecorder,no furtherdigital copycould be made. (An analog copy could be made, thus degrading the quality of the copy, but not a perfect digital copy.) The technology was thus designed to break the“copy”functionundercertainconditions,soas to indirectlyprotect copyright owners. The net effect of these two changes was to minimize any harmfromthe technology,aswell as to limit the functionalityof the technol- ogy where it would be expected that functionality would encourage the vio- lation of copyright. (Many think the net effect of this regulation also killed DAT technology.)

Something like the same ideaanimatedStefik’s vision.14 Hewasnotkeen to make the quality of copies decrease. Rather, his objective was to make it possible to track and control the copies of digital content that are made.15

Thinkof theproposal like this.Today,whenyoubuyabook,youmaydo anynumberof thingswith it.Youcanread itonceoronehundred times.You can lend it to a friend. You can photocopy pages in it or scan it into your computer.You can burn it, use it as a paperweight, or sell it.You can store it on your shelf and never once open it.

Someof these thingsyoucandobecause the lawgivesyoutheright todo them—youcansell thebook, forexample,because thecopyright lawexplicitly limits the copyright owner’s right to control your use of the physical book after the“first sale.”Other thingsyoucandobecause there isnoeffectiveway to stopyou.Abooksellermight sell you thebookatoneprice if youpromise to read it once, and at a different price if you want to read it one hundred times,but there isnoway for the seller toknowwhetheryouhaveobeyed the contract. In principle, the seller could sell a police officer with each book to followyouaroundandmake sure youuse thebookas youpromised,but the costs of this control would plainly exceed any benefit.

Butwhat if eachof these rights couldbecontrolled,andeachunbundled andsold separately?What if, that is, the software itself couldregulatewhether you read the book once or one hundred times; whether you could cut and paste fromitor simply read itwithout copying;whether youcould send it as

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anattacheddocument toa friendor simplykeep itonyourmachine;whether you could delete it or not; whether you could use it in another work, for anotherpurpose,ornot;orwhetheryoucouldsimplyhave itonyour shelf or have it and use it as well?

Stefikdescribesanetwork thatmakes suchunbundlingof rightspossible. Hedescribesanarchitecture thatwouldallowownersof copyrightedmateri- als to sell access to thosematerialson the terms theywantandwouldenforce those contracts.

Thedetailsof the systemarenot importanthere (itbuildson theencryp- tion architecture I described in Chapter 4),16 but its general idea is easy enoughtodescribe.As theNet isnow,basic functions likecopyingandaccess are crudely regulated in an all-or-nothing fashion. You generally have the right to copy or not, to gain access or not.

But a more sophisticated system of rights could be built into the Net— not into a different Net, but on top of the existing Net. This system would function by discriminating in the intercourse it has with other systems. A systemthatcontrolledaccess in thismore fine-grainedwaywouldgrantaccess to its resourcesonly toanother systemthat controlledaccess in the sameway. A hierarchy of systems would develop, and copyrighted material would be traded only among systems that properly controlled access.

In suchaworld, then,youcouldgetaccess, say, to the New York Times and payadifferentpricedependingonhowmuchof it youread.TheTimes could determinehowmuchyouread,whetheryoucouldcopyportionsof thenews- paper,whetheryoucould save itonyourharddisk,andsoon.But if thecode you used to access the Times site did not enable the control the Times demanded, then the Times would not let you onto its site at all. In short, sys- temswouldexchange informationonlywithothers that couldbe trusted,and the protocols of trust would be built into the architectures of the systems.

Stefik calls this“trusted systems,”and the name evokes a helpful analog. Think of bonded couriers. Sometimes you want to mail a letter with some- thingparticularlyvaluable in it.Youcouldsimplygive it to thepostoffice,but the post office is not a terribly reliable system; it has relatively little control over its employees,and theft and lossarenotuncommon.So insteadof going to the post office, you could give your letter to a bonded courier. Bonded couriers are insured, and the insurance is a cost that constrains them to be reliable.This reputation then makes it possible for sendersof valuablemate- rial to be assured about using their services.As Stefik writes:

with trusted systems,a substantial part of the enforcement of a digital contract

is carriedoutby the trustedsystem.[T]heconsumerdoesnothave theoptionof

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disregarding a digital contract by, for example,making unauthorized copies of

awork.A trusted systemrefuses to exercise a right that isnot sanctionedby the

digital contract.17

This iswhata structureof trusted systemsdoes forownersof intellectual property. It is a bonded courier that takes the thing of value and controls access to and use of it according to the orders given by the principal.

Imagine for a moment that such a structure emerged generally in cyber- space. How would we then think about copyright law?

An importantpoint about copyright law is that, thoughdesigned inpart to protect authors, the control it was designed to create was never to be per- fect.As the Supreme Court noted, copyright“protection has never accorded the copyright owner complete control over all possible uses of his work.”18

Thus, the lawgrantsonlyparticular exclusive rights,and those rights are sub- ject to important limitations,suchas“fairuse,”limited terms,andthe first sale doctrine. The law threatened to punish violators of copyright laws—and it was this threat that induced a fairly high proportion of people to comply— but the lawwasneverdesigned tosimplydo theauthor’sbidding. Ithadpub- lic purposes as well as the author’s interest in mind.

Trusted systems provide authors with the same sort of protection. Because authors can restrict unauthorized use of their material, they can extractmoney inexchange foraccess.Trustedsystemsthusachievewhatcopy- right law aims to,but they can achieve this protection without the law doing therestricting.Itpermitsamuchmore fine-grainedcontroloveraccess toand use of protected material than the law permits, and it can do so without the aid of the law.

Whatcopyright seeks todousing the threatof lawandthepushof norms, trusted systems do through the code.Copyright orders others to respect the rightsof the copyrightholderbeforeusinghisproperty; trusted systemsgive accessonly if rightsare respected in the firstplace.Thecontrolsneededtoreg- ulate this access arebuilt into the systems,andnousers (excepthackers)have achoiceaboutwhether toobey them.Thecodecomplements the lawbycod- ifying the rules,making them more efficient.

Trusted systems in this senseareaprivatizedalternative tocopyright law. Theyneednotbeexclusive; there isnoreasonnot touseboth lawandtrusted systems.Nevertheless, the code is effectively doing the work that the law was designed to do. It implements the law’s protection, through code, far more effectively than the law did.

What couldbewrongwith this?Wedonotworrywhenpeopleput dou- bleboltson theirdoors to supplement theworkof theneighborhoodcop.We

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donotworrywhenthey lock their carsandtake theirkeys. It isnotanoffense toprotect yourself rather thanrelyon the state. Indeed, in somecontexts it is avirtue.AndrewJackson’smother, forexample, toldhim,“Never tell a lie,nor take what is not your own, nor sue anybody for slander, assault and battery. Always settle them cases yourself.”19 Self-sufficiency is strength and going to the law a sign of weakness.

Thereare twosteps toanswering thisquestion.The first rehearsesa famil- iarbut forgottenpointabout thenatureof“property”; the secondmakesa less familiar,but central,pointabout thenatureof intellectualproperty.Together they suggest why perfect control is not the control that law has given owners of intellectualproperty.Andtogether they suggest thepotentialproblemthat copyright law in cyberspace will create.

THE LIMITS ON THE PROTECTION OF PROPERTY

Therealists inAmerican legalhistory(circa1890–1930)were scholarswho(in part) emphasized theroleof the state inwhatwascalled“private law.”20 At the time they wrote, it was the“private” in private law that got all the emphasis. Forgottenwas the“law,”as if“property”and“contract”existed independentof the state.

The realists’aimwas toundermine this view.Contract andproperty law, they argued,gave private parties power.21 If you breach a contract with me, I canhave thecourtorder the sheriff to forceyou topay; thecontract givesme access to the state power of the sheriff. If your contract with your employer says that it may dismiss you for being late, then the police can be called in to eject you if yourefuse to leave. If your lease forbidsyou tohavecats, then the landlord can use the power of the courts to evict you if you do not get rid of the cats. These are all instances where contract and property, however grounded in private action,give a private person an entitlement to the state.

Nodoubt thispower is justified inmanycases; tocall it“law”isnot tocall it unjust. The greatest prosperity in history has been created by a system in which private parties can order their lives freely through contract and prop- erty. But whether justified in the main or not, the realists argued that the contours of this“law”should be architected to benefit society.22

This is not communism. It is not an attack on private property, and it is not to say that the state creates wealth (put your Ayn Rand away).These are claims about the relationship between private law and public law, and they should be uncontroversial.

Private law creates private rights to the extent that these private rights serve some collective good. If a private right is harmful to a collective good,

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then the state has no reason to create it. The state’s interests are general, not particular. It has a reason tocreate rightswhen those rights serve a common, rather than particular, end.

The institution of private property is an application of this point. The state has an interest in defining rights to private property because private property helps produce a general, and powerful,prosperity. It is a system for ordering economic relations that greatly benefits all members of society.No other system that we have yet devised better orders economic relations. No other system, some believe, could.23

But even with ordinary property—your car, or your house—property rights are never absolute.There is no property that does not have to yield at some point to the interests of the state. Your land may be taken to build a highway, your car seized to carry an accident victim to the hospital, your drivewaycrossedby thepostman,yourhouse inspectedbyhealth inspectors. Incountlessways, the systemof propertywecall“privateproperty”is a system thatbalancesexclusivecontrolby the individual against certaincommonstate ends.When the latter conflict with the former, it is the former that yields.

This balance, the realists argued, is a feature of all property. But it is an especially important feature of intellectual property. The balance of rights with intellectual property differs from the balance with ordinary real or per- sonal property. “Information,” as Boyle puts it, “is different.”24 And a very obvious feature of intellectual property shows why.

When property law gives me the exclusive right to use my house, there’s a very good reason for it. If you used my house while I did, I would have less to use.When the law gives me an exclusive right to my apple, that too makes sense. If you eat my apple, then I cannot.Your use of my property ordinarily interferes with my use of my property.Your consumption reduces mine.

The law has a good reason, then, to give me an exclusive right over my personal and real property. If it did not, I would have little reason to work to produce it.Or if I did work to produce it, I would then spend a great deal of mytime trying tokeepyouaway. It isbetter for everyone, theargumentgoes, if I have an exclusive right to my (rightly acquired) property, because then I havean incentive toproduce it andnotwasteallmytimetrying todefend it.25

Thingsaredifferentwith intellectualproperty. If you“take”myidea, I still have it. If I tell youan idea,youhavenotdeprivedmeof it.26 Anunavoidable featureof intellectualproperty is that its consumption,as theeconomists like toput it, is“nonrivalrous.”Yourconsumptiondoesnot lessenmine. If Iwrite a song,youcansing itwithoutmaking it impossible formetosing it. If Iwrite abook,youcanreadacopyof it (pleasedo)withoutdisablingmefromread- inganothercopyof it. Ideas,at their core,canbe sharedwithnoreduction in

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the amount the“owner”canconsume.Thisdifference is fundamental, and it has been understood since the founding.

Jefferson put it better than I:

If nature has made any one thing less susceptible than all others of exclusive

property, it is theactionof the thinkingpowercalledan idea,whichanindividual

may exclusively possess as long as he keeps it to himself; but the moment it is

divulged, it forces itself into thepossessionof everyone,and the receiver cannot

dispossesshimself of it. Itspeculiarcharacter, too, is thatnoonepossesses the less,

because every other possess the whole of it. He who receives an idea from me,

receives instruction himself without lessening mine; as he who lites his taper at

mine, receives lightwithoutdarkeningme.That ideas should freely spread from

onetoanotherover theglobe, for themoralandmutual instructionof man,and

improvement of his condition, seems to have been peculiarly and benevolently

without lessening theirdensityatanypoint,and like theair inwhichwebreathe,

move,andhaveourphysicalbeing, incapableof confinementorexclusiveappro-

priation. Inventions thencannot, innature,be a subject of property.27

Technically, Jefferson presents two concepts: One is the possibility of excluding others from using or getting access to an idea,which he defines as “actionof the thinkingpower . . .whichan individualmayexclusivelypossess as long as he keeps it to himself.” This is the question whether ideas are “excludable”; Jeffersonaffirms that an idea is“excludable”until“themoment it is divulged.”

The other concept is whether my use of a divulged idea lessens your use of the same idea. This is the question of whether divulged ideas are “rival- rous.”28 Again, Jefferson suggests that, once they are divulged, ideas are not “rivalrous.”Jeffersonbelieves that theactof divulging/sharinghasmade ideas bothnonexcludableandnonrivalrous,and that there is little thatmancando to change this fact.29

In fact, shared ideas are both nonexcludable and nonrivalrous. I can exclude people from my secret ideas or writings—I can keep them secret, or build fences to keep people out.How easily, or how effectively, I can do so is a technicalquestion. Itdependsonthearchitectureof protection that agiven contextprovides.Butgiven theproper technology, there isnodoubt that I can keeppeopleout.What I cannotdo is toexcludepeople frommyshared ideas or writings simply because they are not my secrets anymore.

My shared ideas are “nonrivalrous” goods, too. No technology (that we know of) will erase an idea from your head as it passes into my head. My

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knowing what you know does not lessen your knowing the same thing.That fact is agiven in theworld,and itmakes intellectualpropertydifferent.Unlike apples, and unlike houses, once shared, ideas are something I can take from you without diminishing what you have.

Itdoesnot follow,however, that there isnoneed forproperty rightsover expressions or inventions.30 Just because you can have what I have without lessening what I have does not mean that the state has no reason to create rights over ideas,or over the expression of ideas.

If anovelist cannot stopyoufromcopying(rather thanbuying)herbook, then shemayhavevery little incentive toproducemorebooks.Shemayhave asmuchas shehadbefore you took thework sheproduced,but if you take it without paying, she has no monetary incentive to produce more.

Now,of course, the incentivesanauthor facesarequite complex,and it is notpossible tomakesimplegeneralizations.31 Butgeneralizationsdonothave tobeperfect tomakeapoint:Even if someauthorswrite for free, it is still the case that the law needs some intellectual property rights. If the law did not protect authorship at all, there would be fewer authors.The law has a reason to protect the rights of authors, at least insofar as doing so gives them an incentive to produce. With ordinary property, the law must both create an incentive to produce and protect the right of possession; with intellectual property, the law need only create the incentive to produce.

This is thedifferencebetween these twoverydifferent kindsof property, and this difference fundamentally affects the nature of intellectual property law.While we protect real and personal property to protect the owner from harm and give the owner an incentive, we protect intellectual property to ensure thatwecreatea sufficient incentive toproduce it.“Sufficient incentive,” however, is something less than“perfect control.”And in turnwecansay that the ideal protections of intellectual property law are something less than the ideal protections for ordinary or real property.

This difference between the nature of intellectual property and ordinary property was recognized by our Constitution, which in article I, section 8, clause 8, gives Congress the power“to promote the Progress of Science and usefulArts,by securing for limitedTimes toAuthorsandInventors theexclu- sive Right to their respectiveWritings and Discoveries.”

Note the special structureof this clause.First, it sets forth theprecise rea- son for thepower—topromote theprogressof scienceanduseful arts. It is for those reasons, and those reasons only, that Congress may grant an exclusive right. And second, note the special temporality of this right: “for limited Times.” The Constitution does not allow Congress to grant authors and inventors permanent exclusive rights to their writings and discoveries, only

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limited rights. (Thoughapparently those limited times canbeextended.32) It doesnotgiveCongress thepower togive themaperpetual“property”in their writingsanddiscoveries,onlyanexclusive rightover themfora limited time.

TheConstitution’sprotection for intellectualproperty then is fundamen- tallydifferent fromitsprotectionof ordinaryproperty. I’ve said that allprop- erty is granted subject to the limit of the public good. But even so, if the government decided to nationalize all property after a fifteen-year term of ownership, the Constitution would require it to compensate the owners. By contrast, if Congress set thecopyright termat fifteenyears, therewouldbeno claim that the government pay compensation after the fifteen years were up. Intellectualproperty rightsareamonopoly that the stategives toproducersof intellectual property in exchange for their production of it. After a limited time, the product of their work becomes the public’s to use as it wants.This is Communism at the core of our Constitution’s protection of intellectual property.This“property”is not property in the ordinary sense of that term.

Andthis is true for reasonsbetter than traditionaswell.Economistshave longunderstood thatgrantingproperty rightsover information isdangerous (to say the least).33 This is not because of leftist leanings among economists; it isbecauseeconomists are consequentialists,and theirobjective ingranting any property right is simply to facilitate production. But there is no way to know, inprinciple,whether increasingordecreasing the rightsgrantedunder intellectualproperty lawwill lead toan increase in theproductionof intellec- tualproperty.Thereasonsarecomplex,but thepoint isnot: Increasing intel- lectual property’s protection is not guaranteed to “promote the progress of science and useful arts”—indeed,often doing so will stifle it.

Thebalance that intellectualproperty lawtraditionally strikes isbetween theprotectionsgranted theauthorandthepublicuseoraccessgrantedevery- one else. The aim is to give the author sufficient incentive to produce. Built into the law of intellectual property are limits on the power of the author to control use of the ideas she has created.34

A classic example of these limits and of this public use dimension is the rightof“fairuse.”Fairuse is the right touse copyrightedmaterial, regardless of the wishes of the owner of that material.A copyright gives the owner cer- tainrights; fairuse is a limitationonthose rights. It givesyoutheright tocrit- icize this book, cut sections from it, and reproduce them in an article attackingme. In theseways and inothers,youhave the right touse thisbook independent of how I say it should be used.

Fair usedoesnot necessarily work against the author’s interest—or more accurately, fairusedoesnotnecessarilyworkagainst the interestsof authorsas aclass.Whenfairuseprotects therightof reviewers tocriticizebookswithout

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the permission of authors, then more critics criticize.And the more criticism there is, thebetter the information isaboutwhatbookspeopleshouldbuy.The better the information is about what to buy, the more people will buy it. Authors as a whole benefit from the system of fair use, even if particular authorsdonot.

The law of copyright is filled with such rules. Another is the “first sale” doctrine. If youbuy thisbook,youcansell it to someoneelse freeof anycon- straint Imight imposeonyou.35 Thisdoctrinediffers fromthe tradition in, for example, Europe, where there are“moral rights” that give the creator power over subsequent use.36 I’ve already mentioned another example—limited term.Thecreator cannotextend the termforwhich the lawwillprovidepro- tection (even if Congress can); that is fixed by the statute and runs out when the statute runs out.

Takentogether, these rulesgive thecreator significant—butnotperfect— control over the use of what he produces. They give the public some access, but not complete access. They are balanced differently from the balance the lawstrikes forordinaryproperty—bydesign.Theyareconstitutionally struc- tured to help build an intellectual and cultural commons.

The lawstrikes thisbalance. It isnotabalance thatwouldexist innature. Without the law,andbeforecyberspace,authorswouldhavevery littleprotec- tion; with the law, they have significant, but not perfect, protection.The law givesauthors something theyotherwisewouldnothave inexchange for limits on their rights, secured to benefit the intellectual commons as a whole.

PRIVATE SUBSTITUTES FOR PUBLIC LAW

So copyright law strikes a balance between control and access. What about thatbalancewhencode is the law?Shouldweexpect thatanyof the limitswill remain? Should we expect code to mirror the limits that the law imposes? Fairuse?Limited term?Wouldprivatecodebuild these“bugs”into itsprotec- tions?

Thepoint shouldbeobvious:When intellectual property is protectedby code,nothing requires that the same balance be struck.Nothing requires the owner togrant the rightof fairuse.Shemightallowindividuals tobrowse for free, as a bookstore does, but she might not. Whether she grants this right dependsonwhether it profits her.Fairusebecomes contingentuponprivate gain. More importantly, it becomes contingent upon the private gain of authors individually rather than authors as a class.

Thus,asprivatized law, trusted systemsregulate in the samedomain that copyright law regulates.But unlike copyright law, they do not guarantee the

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same limitsoncopyright’sprotection.Trustedsystemsgive theproducermax- imum control over the uses of copyrighted work—admittedly at a cheaper cost, thus perhaps permitting many more authors to publish. But they give authorsalmostperfect control inanarea inwhich the lawdidnot.Code thus displaces thebalance that copyright lawstrikesbydisplacing the limits the law imposes.As Daniel Benloliel puts it,

[D]ecentralizedcontentproviders are . . .privatizing theenforcementauthority

with strict technological standards, under which individuals would be banned

from access and use of particular digital content in a way that might override

legitimate fair use.37

So far my description simply sets law against code: the law of copyright either complemented by, or in conflict with, private code.You may not yet be convinced that we should consider this a conflict, because it has always been the case that one can exercise more control over a copyrighted work than the law gives you the right to exercise over the copyright.For example, if you own a painting that is in the public domain, there’s no requirement for you to let anyone see it.Youcould lock it in your bedroom andnever let anyone see it ever. In a sense, you’ve thus deprived the world of the value of this painting being in the “public domain.” But no one has ever thought that this interaction between the law of trespass and copyright has created any important conflict.Sowhy shouldanyonebe troubled if copyrightown- ers use code to lock up their content beyond the balance the law of copy- right strikes?

If this is where you’re stuck, then let me add one more part to the story. As Imentionedabove, theDMCAcontainsananti-circumventionprovision. That part of the law forbids the circumvention of some technical protection measures; it forbids thedevelopmentof tools tocircumvent technicalprotec- tion as well. Most important, it forbids these circumventions regardless of the purpose of the circumvention. Thus, if the underlying use you would makeof acopyrightedwork—if youcouldget access to it—isa“fairuse,”the DMCA still makes it an offense to circumvent technical protections to get access to it. Thus one part of the law of copyright grants “fair use,” while another part of copyright removes at least some fair use liberty where the fair use has been removed by technical means.38

But so what, the skeptic will ask. What the law gives, the law can take away, can’t it?

No it can’t, and that’s the point. As the Supreme Court has indicated, copyright law is consistentwith theFirstAmendmentonlybecauseof certain

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important limitations built into the law. Removing those limitations would then raise important First Amendment questions. Thus, when the law acts with code to remove the law’s protection for fair use, this should raise an importantquestion—at least for thoseconcernedaboutmaintaining thebal- ance that copyright law strikes.

But maybe this conflict is just temporary.Couldn’t the code be changed to protect fair use?

Theanswer to thathopeful (andagain,hopefulbecausemymainpoint is aboutwhether incentives toprotect fairuseexist)question isno,notdirectly. Fair use inherently requires a judgment about purpose,or intent.That judg- ment is beyond the ken of even the best computers. Indirectly, however, fair use could be protected. A system that allowed an individual to unlock the trustedsystemif heclaimedtheusewas fair (perhapsmarking theusedwork with a tag to make it possible to trace the use back to the user) could protect fairuse.OrasStefikdescribes,a systemthatgrantedusers a“fairuse license,” allowing themtounlock thecontentanduse insurancebacking the license to pay for any misuse,might also protect fair use.39 But these alternatives again rely on structures beyond code. With the code itself, there is no way ade- quately to police fair use.

Some will respond that I am late to the party: Copyright law is already being displaced, if not by code then by the private law of contract. Through the use of click-wrap, or shrink-wrap, licenses, authors are increasingly demanding thatpurchasers,or licensees,waive rights that copyright lawgave them.If copyright lawgives the right to reverse-engineer, then thesecontracts might extract a promise not to reverse-engineer. If copyright law gives the right to dispose of the book however the purchaser wants after the first sale, then a contract might require that the user waive that right. And if these terms in thecontract attached toeverycopyrightworkareenforceablemerely bybeing“attached”and“knowable,”thenalreadywehave theability through contract law to rewrite the balance that copyright law creates.

I agree that this race toprivatizecopyright lawthroughcontract is already far along, fueled inparticularbydecisions suchas JudgeFrankEasterbrook’s in ProCD v. Zeidenberg.But contracts are not as bad as code.Contracts are a form of law. If a term of a contract is inconsistent with a value of copyright law,youcanrefuse toobey it and let theother sideget acourt toenforce it. In some cases, courts have expressly refused to follow a contract term precisely because it is inconsistentwitha copyright lawvalue.40 Theultimatepowerof a contract depends upon the decision by a court to enforce the contract or not.Although courts today are relatively eager to find ways to enforce these contracts, there is at least hope that if theother sidemakes its case very clear,

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courts could shift direction again.41 As Stefik writes, trusted systems “differ from an ordinary contract in critical ways.”

[I]nanordinarycontract,compliance isnotautomatic; it is the responsibilityof

the agreeing parties.There may be provisions for monitoring and checking on

compliance,but theactual responsibility foracting inaccordancewith the terms

falls on the parties. In addition, enforcement of the contract is ultimately the

province of the courts.42

The same is not true of code. Whatever problems there are when con- tracts replace copyright law, the problems are worse when code displaces copyright law. Again—where do we challenge the code? When the software protects without relying in the end on the state, where can we challenge the natureof theprotection?Wherecanwedemandbalancewhenthecode takes it away?

I don’t mean to enter the extremely contentious debate about whether this change in control is good or appropriate. I’ve said too much about that elsewhere.43 Forourpurposeshere, thepoint is simply to recognize a signifi- cant change.Codenowmakespossible increasinglyperfect controloverhow culture is spread. Regulations have“been fairly consistent . . . on the side of expanding the power of the owners to control the use of their products.”44

Andthese regulations invite ademandforperfect controloverhowculture is spread.

The riseof contracts qualifying copyright lawand the riseof codequali- fying copyright law raise a question that the law of copyright has not had to answer before.We have never had to choose whether authors should be per- mittedperfectly to control theuseof their intellectual property independent of the law, for such control was not possible. The balance struck by the law was thebest that authors couldget.Butnow,codegives authors abetterdeal. The question for legal policy is whether this better deal makes public sense.

Here we confront the first latent ambiguity within the law of copyright. There are those who would say that copyright law already decides this ques- tion—whether against code-based control, or for it.But in my view, this is a choice the lawhasyet tomake.Ihavemyownviewsabouthowthe lawshould decide the question.But what technology has done is force us to see a choice that was not made before.See the choice, and then make it.

Put most directly: There has always been a set of uses of copyrighted work thatwasunregulatedby the lawof copyright.Evenwithin theboundary of uses that were regulated by the law of copyright,“fair use”kept some uses free. The core question is why? Were these transactions left free because it

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was too costly to meter them? Or were these transactions left free because keeping them free was an important public value tied to copyright?

This is aquestion the lawneverhadtoresolve, thoughthere is support for both views.45 Now the technology forces us to resolve it.The question, then, is how.

Aniceparallel to thisproblemexists inonepartof constitutional law.The framers gave Congress the power to regulate interstate commerce and com- merce that affects interstate commerce.46 At the founding, that was a lot of commerce,butbecauseof the inefficienciesof themarket,not all of it.Thus, the states had a domain of commerce that they alone could regulate.47

Over time, however, the scope of interstate commerce has changed so that much less commerce is now within the exclusive domain of the states. This changehasproduced twosortsof responses.One is to findotherways to give states domains of exclusive regulatory authority. The justification for this response is the claim that these changes in interstate commerce are destroying the framers’vision about state power.

Theother response is toconcede the increasingscopeof federal authority, but todeny that it is inconsistentwith the framingbalance.48 Certainly,at the founding, some commerce was not interstate and did not affect interstate commerce.But thatdoesnotmeanthat the framers intended that theremust alwaysbe sucha space.They tied the scopeof federal power toamoving tar- get; if the target moves completely to the side of federal power, then that is what we should embrace.49

Inbothcontexts, thechange is the same.Westart inaplacewherebalance is given to us by the mix of frictions within a particular regulatory domain: Fair use is a balance given to us because it is too expensive to meter all use; state power over commerce is given to us because not all commerce affects interstate commerce. When new technology disturbs the balance, we must decide whether the original intent was that there be a balance, or that the scopeof one sideof eachbalance should faithfully track the index towhich it was originally tied.Both contexts, in short,present ambiguity.

Many observers (myself included) have strong feelings one way or the other.We believe this latent ambiguity is not an ambiguity at all. In the con- text of federal power, we believe either that the states were meant to keep a domain of exclusive authority50 or that the federal government was to have whatever power affected interstate commerce.51 In the context of fair use,we believe that either fair use is to be a minimum of public use, guaranteed regardless of the technology,52 or that it is just an efficient compromise in response toan inefficient technology, tobe removedas soonasefficiencycan be achieved.

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But inbothcases, thismaymake theproblemtooeasy.Thebest answer in both contexts may be that the question was unresolved at the framing: Per- hapsnoone thoughtof thematter,andhence there isnoanswer to theques- tion of what they would have intended if some central presupposition had changed.And if therewasnooriginal answer,wemustdecide thequestionby ourownlights.AsStefik saysof trustedsystems—and,wemightexpect,of the implications of trusted systems—“It is a tool never imagined by the creators of copyright law,orby thosewhobelieve lawsgoverning intellectualproperty cannot be enforced.”53

The lossof fairuse is a consequenceof theperfectionof trusted systems. Whether youconsider it aproblemornotdependsonyourviewof thevalue of fairuse. If youconsider it apublic value that shouldexist regardlessof the technological regime, then the emergence of this perfection should trouble you.Fromyourperspective, therewasavalue latent in the imperfectionof the old system that has now been erased.

But even if youdonot think that the lossof fairuse is aproblem, trusted systems threaten other values latent in the imperfection of the real world. Consider a second.

THE ANONYMITY THAT IMPERFECTION ALLOWS

I was a student at an English university for a number of years. In the college Iattended, therewasa“buttery”—ashop inside thecollege thatbasically sold alcohol. During the first week I was there I had to buy a large amount of Scotch (a series of unimaginative gifts, as I remember).About a week after I made thesepurchases, I receivedasummons frommytutor tocometalkwith himinhisoffice.WhenIarrived, the tutoraskedmeaboutmypurchases.This was, to his mind, an excessive amount of alcohol, and he wanted to know whether I had a good reason for buying it.

Needless to say, Iwas shockedat thequestion.Of course, technically, I had made a purchase at the college, and I had not hidden my name when I did so (indeed,Ihadchargeditonmycollegeaccount),so,formally,Ihadrevealedmy alcoholpurchasestothecollegeanditsagents.Still, it shockedmethatthis infor- mation would be monitored by college authorities and then checked up on. I couldseewhytheydidit,andIcouldseethegoodthatmightcomefromit.It just neverwouldhaveoccurred tomethat thesedatawouldbeused in thisway.

If this was an invasion,of course, it was a small one.Later it was easy for me to hide my binges simply by buying from a local store rather than the college buttery. (Though I later learned that the local store rented its space from the college, so who knows what deal they had struck?)And in any case,

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I was not being punished. The college was just concerned. But the example suggests a more general point: We reveal to the world a certain class of data aboutourselves thatweordinarily expect theworldnot touse.Whathappens when they use it?

Trusted systems depend on such data—they depend on the ability to knowhowpeopleuse theproperty that isbeingprotected.Tosetpricesmost efficiently, the system ideally should know as much about individuals and their readinghabits aspossible. Itneeds toknowthisdatabecause itneedsan efficient way to track use and so to charge for it.54

But this tracking involvesacertain invasion.Welivenowinaworldwhere we think about what we read in just the way that I thought about what I bought as a student in England—we do not expect that anyone is keeping track.Wewouldbeshocked if we learned that the librarywaskeeping tabson thebooks thatpeoplecheckedoutandthenusing thisdata in somemonitor- ing way.

Such tracking, however, is just what trusted systems require.And so the question becomes: Should there be a right against this kind of monitoring? Thequestion isparallel to thequestionof fairuse. Inaworldwhere thismon- itoringcouldnot effectivelyoccur, therewas,of course,no suchright against it. But now that monitoring can occur,we must ask whether the latent right to read anonymously, given to us before by imperfections in technologies, should be a legally protected right.

Julie Cohen argues that it should, and we can see quite directly how her argument proceeds.55 Whatever its source, it is a value in this world that we can explore intellectually on our own. It is a value that we can read anony- mously,without fear thatotherswill knoworwatchorchange theirbehavior basedonwhatwe read.This is anelementof intellectual freedom; it is apart of what makes us as we are.56

But this element is potentially erased by trusted systems. These systems need to monitor, and this monitoring destroys anonymity.We need to decide whether,andhow,topreservevalues fromtodayinacontextof trustedsystems.

This could firstbeaquestionof translation:namely,howshouldchanges in technologybeaccommodated topreservevalues fromanearlier context in a new context? It is the same question that Brandeis asked about wiretap- ping.57 It is the question the Court answers in scores of contexts all the time. It is fundamentally aquestionaboutpreservingvalueswhencontexts change.

In thecontextof both fairuseandreading,Cohenhasaconsistentanswer to this question of translation. She argues that there is a right to resist, or “hack,”trusted systems to theextent that they infringeontraditional fairuse. (Othershavecalled this the“CohenTheorem.”)As for reading,sheargues that

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copyrightmanagement schemesmustprotect a right to readanonymously— that if they monitor, they must be constructed so that they preserve anonymity. The strategy is the same: Cohen identifies a value yielded by an oldarchitecturebutnowthreatenedbyanewarchitecture,andthenargues in favor of an affirmative right to protect the original value.

But here again we might view the question more ambiguously. I share Cohen’sview,but theargumentontheother side isnot silly. If it’spermissible touse technology tomakecopyrightedworksavailable,why isn’t it permissi- ble to gather data about who uses what works? That data gathering is not partof thecopyright itself; it is abyproductof the technology.Andasour tra- dition has never had this technical capacity before, it is hard to say a choice was made about it in the past.

PERMISSION CULTURE VS. FREE

I’vealreadydescribed the limits copyright lawplaceson itself.These limits,as I argued,reflect importantvalues.Theyexpress thebalance that copyright law aims to be.

But what is too often missed in this discussion of balance is any sense of perspective.We focus on the gradual shifts in the law but miss the profound sense in which the significance of the law has changed.

Thischange isproducedby theunintended interactionbetweenthearchi- tecture of digital technologies and the architecture of the law.

Copyright law at its core regulates “copies.” In the analog world, there were very few contexts in which one produced “copies.” As Jessica Litman described more than a decade ago,

At the turn of the century, U.S. copyright law was technical, inconsistent, and

difficult to understand, but it didn’t apply to very many people or very many

things. If one were an author or publisher of books, maps, charts, paintings,

sculpture, photographs or sheet music, a playwright or producer of plays, or a

printer, the copyright law bore on one’s business. Booksellers, piano-roll and

phonograph record publishers,motion picture producers,musicians, scholars,

members of Congress, and ordinary consumers could go about their business

without ever encountering a copyright problem.58

Thus there were many ways in which you could use creative work in the analog world without producing a copy.

Digital technology, at its core, makes copies. Copies are to digital life as breathing is toourphysical life.There isnoway touseanycontent inadigital

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context without that use producing a copy.When you read a book stored on your computer, you make a copy (at least in the RAM memory to page through the book).When you do anything with digital content, you techni- cally produce a copy.

This technical fact about digital technologies, tied to the technical archi- tecture of the law,produces a profound shift in the scope or reach of the law of copyright that too many simply miss: While in the analog world, life was sans copyright law; in the digital world, life is subject to copyright law.Every single act triggers the law of copyright. Every single use is either subject to a license or illegal, unless deemed to be “fair use.” The emergence of digital technologieshas thus radically increased thedomainof copyright law—from regulating a tiny portion of human life, to regulating absolutely every bit of life on a computer.

Nowif all you thinkabout isprotecting thedistributionof professionally created culture, this might not concern you much. If you’re trying to stop “piracy,” then a regime that says every use requires permission is a regime that gives you a fairly broad range of tools for stamping out piracy.

But though you wouldn’t notice this listening to the debates surround- ing copyright law just now, in fact, protecting the distribution of profes- sionally created culture is not the only, or even, I suggest, the most important part of culture.And indeed, from a historical perspective, top- down, professionally produced culture is but a tiny part of what makes any culture sing.The 20th century may have been an exception to this rule, but no Congress voted to make professional culture the only legal culture within our society.

Standingalongsideprofessional culture is amateurculture—whereama- teur doesn’t mean inferior or without talent, but instead culture created by people who produce not for the money, but for the love of what they do. From this perspective, there is amateur culture everywhere—from your din- ner table, where your father or sister tell jokes that take off from the latest political scandal or the latest Daily Show; from your basement, where your brother and his three best friends are causing permanent damage to their eardrumsas they try tobecomethenextRollingStones; fromyourneighbors who gather each Thursday and Sunday to sing in a church choir; from your neighborhood schools, where kids and teachers create art or music in the course of learning about our culture; from the kids at your neighborhood school,who tear theirpantsorwear their shirts in someoddway,all as away to express and make culture.

This amateur culture has always been with us, even if it is to us today, as Dan Hunter and Greg Lastowska put it, “hidden.”59 It is precisely how the

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imagination of kids develops;60 it is how culture has always developed. As SivaVaidhyanathan writes,

widespread democratic cultural production (peer-to-peer production, one

might say) . . .merely echoes how cultural texts have flowed through and been

revisedbydiscursivecommunities everywhere forcenturies.Textsoftenundergo

a process similar to a game of “telephone,” through which a text is substan-

tially—sometimesalmostunintentionally—distorted throughmanysmall revi-

sions. . . . Such radical textual revisions have occurred in other contexts and

have helped build political critiques, if not movements. For instance, historian

Lawrence Levine (1988) has documented how working-class players and audi-

ences innineteenth-centuryAmericaadaptedandrevised theworksofWilliam

Shakespeare to their local contexts, concernsand ideologies.AndhistorianEric

Lott (1993) has shown how Uncle Tom’s Cabin was reworked by working-class

whitecommunities toaid thecauseof racialdominance insteadof theChristian

liberationist message the book was intended to serve.61

Importantly, too, this kind of cultural remix has historically been free of regulation. No one would think that as you tell a joke around your dinner table,or sing songs with your friends,or practice to become the next Rolling Stones,youneeda lawyer standingnext toyou,clearing therights to“use”the cultureasyoumakeyourcreative remix.The lawof copyright,historically,has been focused on commercial life. It has left the noncommercial, or beyond commercial, creativity free of legal regulation.

All this has now changed, and digital technologies are responsible. First, andmost important,digital technologieshaveradicallyexpandedthescopeof this amateur culture. Now the clever remix of some political event or the latest song by your favorite band are not just something you can share with your friends. Digital technologies have made it simple to capture and share this creativity with the world.The single most important difference between the Internet circa 1999 and the Internet circa today is the explosion of user- generatedcreativity—fromblogs, topodcasts, to videocasts, tomashups, the Internet today is a space of extraordinary creativity.

Second, digital technologies have democratized creativity. Technology hasgivenawiderangeof potential creators thecapacity tobecomereal.“Peo- ple are waking from their consumerist coma,”one commentator describes.62

As DJ Danger Mouse put it at theWeb 2.0 conference in 2004,

Mashing is so easy. It takes years to learn how to play the guitar and write your

own songs. It takes a few weeks of practice with a turntable to make people

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dance and smile. It takes a few hours to crank out something good with some

software. So with such a low barrier to entry, everyone jumps in and starts

immediately being creative.63

But third, and directly relevant to the story of this chapter, to the extent this creativity finds its expression on the Net, it is now subject to the regula- tion of copyright law.To the extent it uses others’creativity, it needs the per- missionof others.Totheextent itbuildsuponthecreativityof others, itneeds tobesure that that creativity canbebuiltupon legally.Awhole systemof reg- ulation has now been grafted upon an economy of creativity that until now has never known regulation. Amateur culture, or bottom up culture, or the culture that livesoutsideof commercial transactions—allof this is subject to regulation in a way that 30 years ago it was not.

A recent example of this conflict makes the point very concisely.There’s a genre of digital creativity called Anime Music Videos (AMVs). AMVs are remixesof animecartoonsandmusic.Kids spendhundreds,sometimes thou- sandsof hours reediting theanimecartoons tomatch themperfectly tomusic. The result is, in a word, extraordinary. It is among the most creative uses of digital technology that I have seen.

While this genreof creativity isnot small, it’s alsonothuge.Basicallyone sitedominatesactivityaroundAMVs.That sitehasmore than500,000mem- bers, and some 30,000 creators uploadAMV content to the site.

In November 2005, one prominent record label, Wind-Up Records, informed this website that it wanted all Wind-Up Records artists removed fromthesite.Thatwas some3,000videos,representingat least250,000hours of volunteer work by creators across the world—work that would have just one real effect: to promote the underlying artists’work.

Fromtheperspectiveof the lawas it is, this is aneasy case.What thekids are doing is making a derivative work of the anime; they are distributing full copies of the underlying music; and they are synchronizing the music to video—all without the permission of the copyright owners.

But from the perspective of culture, this should be a very hard case. The creativity demonstrated by this work is extraordinary. I can’t show you that creativity in a book, but the notes point you to an example that you can see.64 It is noncommercial, amateur creative work—precisely the sort that has never been subject to the regulation of the law, but which now, because it is living in digital context, is monitored, and regulated, by the law.

Hereagain, Ihave strong feelingsaboutwhat the right answer shouldbe. But we should recognize the latent ambiguity this conflict presents:

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Becauseof thechanges indigital technology, it isnowpossible for the law to regulate every single use of creative work in a digital environment.As life increasingly moves into a digital environment, this means that the law will regulate more and more of the use of culture.

Is this consistent with our values? Theanswer again couldbe found first by trying to translate framingval-

ues into thecurrent context.Fromthatperspective, itwouldbeextraordinar- ily difficult to imagine that the framing vision would have included the level of legal regulation that the current regime entails.

Again, that conclusion could be questioned by recognizing that the pos- sibility of such extensive regulation didn’t exist, and so the choice about whether such extensive regulation should be allowed wasn’t made. That choice, when made, should recognize that while there is extensive and new regulation of amateur culture, that regulation creates new wealth for profes- sional culture. There’s a choice to be made about which form of culture we should protect. That choice has not yet been made directly. It is one more choice we have yet to make.

THE PROBLEMS THAT PERFECTION MAKES

These three examples reveal a common pattern—one that will reach far beyond copyright.At one time we enjoyed a certain kind of liberty.But that libertywasnotdirectly chosen; itwasa liberty resulting fromthehighcostsof control.65 Thatwas theconclusionwedrewabout fairuse—thatwhenthecost of control was high, the space for fair use was great. So too with anonymous reading:Wereadanonymously inreal spacenot somuchbecause lawsprotect that right as because the cost of tracking what we read is so great.And it was the same with amateur culture: That flourished free of regulation because regulation could not easily reach it.

When costs of control fall, however, liberty is threatened. That threat requiresachoice—doweallowtheerosionof anearlier liberty,ordoweerect other limits to re-create that original liberty?

The lawof intellectualproperty is the first exampleof this generalpoint. As the architectureof the Internet changes, itwill allow for a greaterprotec- tion of intellectual property than real-space architectures allowed; this greater protection will force a choice on us that we do not need to make in real space. Should the architecture allow perfect control over intellectual property, or should we build into the architecture an incompleteness that guarantees a certain aspect of public use or a certain space for individual freedom?

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Ignoring thesequestionswillnotmake themgoaway.Pretending that the framers answered them is no solution either. In this context (and this is just the first)wewillneedtomakea judgmentaboutwhichvalues thearchitecture will protect.

CHOICES

I’vearguedthatcyberspacewillopenupthree importantchoices inthecontext of intellectual property: whether to allow intellectual property in effect to becomecompletelypropertized(for that iswhataperfectcoderegimeforpro- tecting intellectual property would do); and whether to allow this regime to erase theanonymity latent in lessefficientarchitecturesof control;andwhether to allow the expansion of intellectual property to drive out amateur culture. These choiceswerenotmadebyour framers.Theyare forus tomakenow.

I have a view, in this context as in the following three, about how we should exercise that choice. But I am a lawyer. Lawyers are taught to point elsewhere—to the framers, to the United Nations charter, to an act of Con- gress—whenarguingabouthowthingsought tobe.Having said that there is no such authority here, I feel as if I ought to be silent.

Cowardly,not silent,however, is how others might see it.They say that I should say what I think. So in each of these three applications (intellectual property, privacy, and free speech), I will offer my view about how these choices shouldbemade.But Ido thisunder someduress andencourage you tosimply ignorewhat Ibelieve. Itwillbe short,andsummary,andeasy todis- card. It is thebalanceof thebook—and,most importantly, the claimthatwe have a choice to make—that I really want to stick.

Anonymity

Cohen, it seems tome, isplainly right aboutanonymity,and theCohenThe- orem is inspirational. However efficient the alternative may be, we should certainlyarchitect cyberspaces toensureanonymity—ormoreprecisely,pseu- donymity—first. If the code is going to monitor what I do, then at least it should not know that it is “I” that it is monitoring. I am less troubled if it knows that“14AH342BD7”read such and such; I am deeply troubled if that number is tied back to my name.

Cohen is right for a second reason as well: All of the good that comes frommonitoringcouldbeachievedwhileprotectingprivacy. Itmay takeabit more coding to build in routines for breaking traceability; it may take more planning to ensure thatprivacy is protected.But if those rules are embedded

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upfront, thecostwouldnotbe terriblyhigh. It is far cheaper toarchitectpri- vacy protections now rather than retrofit for them later.

The Commons

By“theCommons”Imeanaresource that anyonewithina relevant commu- nity canusewithout seeking thepermissionof anyoneelse.Suchpermission maynotberequiredbecause theresource isnot subject toany legal control (it is, in other words, in the public domain).Or it may not be required because permission to use the resource has already been granted. In either case, to use or to build upon this resource requires nothing more than access to the resource itself.66

In this sense, thequestionsabout thescopeandreachof copyright lawask whether our future will protect the intellectual commons that it did in the past.Again, it did so in thepast because the friction of controlwas toogreat. But now that that friction is gone, will we preserve or destroy the commons that used to exist?

My view is that it ought to be preserved. We can architect cyberspace to preserve a commons or not. (Jefferson

thought that nature had already done the architecting, but Jefferson wrote before therewascode.)Weshouldchoose toarchitect itwithacommons.Our pasthadacommons thatcouldnotbedesignedaway; thatcommonsgaveour culture great value.What value the commons of the future could bring us is something we are just beginning to see. Intellectual property scholars saw it—long before cyberspace came along—and laid the groundwork for much of theargumentweneedtohavenow.67 Thegreatestwork in the lawof cyber- spacehasbeenwritten in the fieldof intellectualproperty. Inawide rangeof contexts, these scholarshavemadeapowerful case for the substantivevalueof an intellectual commons.68

James Boyle puts the case most dramatically in his extraordinary book Shamans, Software, and Spleens.69 Drawing togetherbothcyberspaceandnon- cyberspace questions, he spells out the challenge we face in an information society—particularly the political challenge.70 Elsewhere he identifies our need for an “environmental movement” in information policy—a rhetoric thatgetspeople to see thebroadrangeof valuesputat riskby thismovement topropertize all information.Boyle’sworkhas inspiredmanyothers topush a similar agenda of freedom.71

That freedom would limit the law’s regulation over the use and reuse of culture. It would resist perfect control over use; it would free a wide range of reuse. It wouldbuild through affirmative protections for freedom the liberty

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that frictiongaveusbefore. Itwoulddosobecause itbelieves in thevalues this freedom stands for, and it would demonstrate the value in that freedom by enabling the communities that freedom would itself enable.

But this freedomcouldbeconstructedeither throughchanges in the law orvoluntarily.That is, the lawcouldbe rebalanced toencourage the freedom thought important,or thispropertycouldberedeployed toeffect the freedom thought important.

The second strategy was the technique of the Free Software Movement, described in Chapter 8. Using copyright law, Stallman deployed a software license that both preserved the four freedoms of free software, and also required that those modifying and distributing free software distribute the modifications freely.This license thus effects a software commons, since the software is available to all to use, and this software commons has become a critical raw material fueling the digital age.

More recently, Stallman’s idea has been copied by others seeking to rebuild a commons in cyberspace. The Wikipedia project, for example, has built—to the astonishment of most—an extraordinary online encyclopedia solely through the volunteer efforts of thousands, contributing essays and edits in apublicwiki.Theproductof thatwork isnowprotectedperpetually (yes, I know, only for a“limited time,”but don’t correct me about that little detail) through a copyright license that, like the GPL, requires any modifica- tion to be distributed freely as well. (More onWikipedia in Chapter 12.)

And so too has Creative Commons used private law to build an effective public commons.Again, followingStallman,CreativeCommonsoffers copy- right holders a simple way to mark their creative work with the freedoms they intend it to carry. That mark is a license which reserves to the author some rights,while dedicating to the public rights that otherwise would have been held privately. As these licenses are nonexclusive and public, they too effectivelybuildacommonsof creative resources thatanyonecanbuildupon.

ThoughIhave spentagreatdealof mytimehelping tobuild theCreative Commons, I still believeprivate actionalone isnot enough.Yet there is value in learning something from what this private action produces, as its lesson may help policy makers recraft copyright law in the future.

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E L E V E N

p r i v a c y

THE CONCLUSION OF PART 1 WAS THAT CODE COULD ENABLE A MORE REGULABLE cyberspace; theconclusionof Part2was that codewouldbecomean increas- ingly important regulator in thatmoreregulable space.Bothconclusionswere central to the story of the previous chapter. Contrary to the early panic by copyright holders, the Internet will become a space where intellectual prop- erty can be more easily protected. As I’ve described, that protection will be effected through code.

Privacy is a surprisingly similar story. Indeed,as JonathanZittrainargued in an essay published in the Stanford Law Review,1 the problems of privacy andcopyright are exactly the same.Withboth, there’s abitof“our”data that “we’ve”lost controlover. In the caseof copyright, it is thedata constitutinga copyof ourcopyrightedwork; in thecaseof privacy, it is thedata representing some fact aboutus. Inboth cases, the Internethasproduced this lossof con- trol:withcopyright,because the technologyenablesperfect and freecopiesof content; with privacy, as we’ll see in this chapter, because the technology enablesperpetual andcheapmonitoringof behavior. Inbothcases, theques- tion policy makers should ask is what mix of law and technology might restore theproper levelof control.That levelmustbalanceprivateandpublic interests:Withcopyright, thebalance is as Idescribed in the last chapter;with privacy, it is as we’ll explore in this chapter.

Thebigdifferencebetweencopyrightandprivacy,however, is thepolitical economy that seeks a solution toeachproblem.Withcopyright, the interests threatenedarepowerful andwellorganized;withprivacy, the interests threat- enedarediffuseanddisorganized.Withcopyright, thevaluesontheother side of protection (the commons, or the public domain) are neither compelling norwell understood.Withprivacy, thevalueson theother sideof protection

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(security, thewaragainst terrorism) are compellingandwellunderstood.The result of thesedifferences,as anypolitical theoristwould thenpredict, is that over the past ten years, while we’ve seen a lot of legislative and technical changes to solve the problems facing copyright, we’ve seen very few that would solve the problems of privacy.

Yet as with copyright, we could restrike the balance protecting privacy. Therearebothchanges in lawandchanges in technology that couldproduce amuchmoreprivate (andsecure)digital environment.Whetherwewill real- ize thesechangesdependsuponrecognizingboth thedynamics to regulation in cyberspace and the importance of the value that privacy is. {TXB2} Wewill thinkabout threeaspectsof privacy,andhowcyberspacehaschanged each of them.Two of these three will be the focus of this chapter,but I begin with the third to help orient the balance.

PRIVACY IN PRIVATE

The traditional question of “privacy”was the limit the law placed upon the abilityof others topenetrate yourprivate space.What rightdoes thegovern- ment have to enter your home,or search your papers?What protection does the law of trespass provide against others beyond the government snooping intoyourprivate stuff?This isonemeaningof Brandeis’s slogan,“the right to be left alone.”2 Fromtheperspectiveof the law, it is the setof legal restrictions on the power of others to invade a protected space.

Those legal restrictionswerecomplementedbyphysicalbarriers.The law of trespassmaywell say it’s illegal toentermyhouseatnight,but thatdoesn’t mean I won’t lock my doors or bolt my windows.Here again, the protection one enjoys is the sum of the protections provided by the four modalities of regulation. Law supplements the protections of technology, the protections built into norms, and the protections from the costliness of illegal penetra- tion.

Digital technologies have changed these protections.The cost of para- bolic microphone technology has dropped dramatically; that means it’s easier for me to listen to your conversation through your window. On the other hand, the cost of security technologies to monitor intrusion has also fallen dramatically. The net of these changes is difficult to reckon, but the core value is not rendered ambiguous by this difficulty.The expectation of privacy in what is reasonably understood to be “private” spaces remains unchallenged by new technologies. This sort of privacy doesn’t present a “latent ambiguity.”

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PRIVACY IN PUBLIC: SURVEILLANCE

A second kind of privacy will seem at first oxymoronic—privacy in public. Whatkindof protection is thereagainstgatheringdataaboutmewhile I’mon a public street,or boarding an airplane?

The traditional answer was simple: None. By stepping into the public, you relinquished any rights to hide or control what others came to know about you.The facts that you transmitted about yourself were as“free as the air to commonuse.”3 The lawprovidedno legalprotectionagainst theuseof data gathered in public contexts.

But as we’ve seen again and again, just because the law of privacy didn’t protectyou itdoesn’t followthatyouweren’tprotected.Facts aboutyouwhile youare inpublic,even if not legallyprotected,areeffectivelyprotectedby the high cost of gathering or using those facts. Friction is thus privacy’s best friend.

To see the protection that this friction creates, however, we must distin- guish between two dimensions along which privacy might be compromised.

There is a part of anyone’s life that is monitored, and there is a part that canbe searched.Themonitored is thatpartof one’sdaily existence thatothers see or notice and can respond to, if response is appropriate.As I walk down thestreet,mybehavior ismonitored.If Iwalkeddownthestreet ina small vil- lage in western China, my behavior would be monitored quite extensively. This monitoring in both cases would be transitory.People would notice, for example, if I were walking with an elephant or in a dress, but if there were nothing special about my walk, if I simply blended into the crowd, then I mightbenoticed for themomentbut forgotten soonafter—morequickly in San Francisco,perhaps, than in China.

The searchable is the part of your life that leaves, or is, a record. Scrib- blings in your diary are a record of your thoughts. Stuff in your house is a record of what you possess. The recordings on your telephone answering machinearea recordof whocalledandwhat they said.Yourharddrive is you. These parts of your life are not ephemeral. They instead remain to be reviewed—at least if technology and the law permit.

These two dimensions can interact, depending upon the technology in each.My every action in a small village may be monitored by my neighbors. Thatmonitoringproducesa record—intheirmemories.Butgiven thenature of therecording technology, it is fairlycostly for thegovernment tosearch that record.Policeofficersneed topoll theneighbors; theyneed to triangulateon the inevitably incompleteaccounts to figureoutwhatparts are true,andwhat parts arenot.That’s a familiarprocess,but ithas its limits. Itmightbeeasy to

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poll theneighbors to learn information tohelp locatea lostperson,but if the governmentaskedquestionsabout thepolitical viewsof aneighbor,wemight expect (hope?) there would be resistance to that.Thus, in principle, the data are there. In practice, they are costly to extract.

Digital technologies change this balance—radically.They not only make more behavior monitorable; they also make more behavior searchable. The sametechnologies thatgatherdatanowgather it inaway thatmakes it search- able.Thus, increasingly lifebecomesavillagecomposedof parallelprocessors, accessible at any time to reconstruct events or track behavior.

Consider some familiar examples:

The Internet

InPart I, Idescribed theanonymity the Internetoriginallyprovided.But let’s be clear about something important: That relative anonymity of the “old days”isnoweffectivelygone.Everywhereyougoonthe Internet, the fact that IP address xxx.xxx.xxx.xxx went there is recorded.Everywhere you go where you’ve allowed a cookie to be deposited, the fact that the machine carrying that cookie went there is recorded—as well as all the data associated with that cookie.They know you from your mouse droppings.And as businesses andadvertisersworkmoreclosely together, the spanof data thatcanbeaggre- gated about you becomes endless.

Consider ahypothetical that is completely technicallypossibleunder the existing architectures of the Net. You go to a web page of a company you trust, andyougive that companyeverybit of yourprivatedata—yourname, address, social security number, favorite magazines and TV shows, etc.That companygives youacookie.You thengo toanother site,oneyoudon’t trust. You decide not to give that site any personal data.But there’s no way for you toknowwhether thesecompaniesarecooperatingabout thedata theycollect. Itsperfectlypossible they synchronize thecookiesdata theycreate.Andthus, there’s no technical reason why once you’ve given your data once, it isn’t known by a wide range of sites that you visit.

In the section that follows, we’ll consider more extensively how we should think about privacy in any data I’ve affirmatively provided others, such as my name, address, or social security number. But for the moment, just focus upon the identity data they’ve collected as I move around in “public.” Unless you’ve taken extraordinary steps—installing privacy soft- ware on your computer, or disabling cookies, etc.—there’s no reason you should expect that the fact that you visited certain sites, or ran certain searches, isn’t knowableby someone. It is.The layersof technologydesigned

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to identify“the customer”have produced endless layers of data that can be traced back to you.

Searches

In January 2006, Google surprised the government by doing what no other search company had done: It told the government“no.”The Justice Depart- ment had launched a study of pornography on the Net as a way to defend Congress’s latest regulation of pornography. It thus wanted data about how often, and in what form, people search for porn on the Internet. It asked Google to provide 1,000,000 random searches from its database over a spec- ified period.Google—unlikeYahoo! and MSN—refused.

I suspect thatwhenmost firstheardabout this, theyasked themselves an obviousquestion—Googlekeeps search requests? It does.Curiosity ismon- itored,producinga searchabledatabaseof thecurious.Asaway to figureout better how to do its job, Google—and every other search engine4—keeps a copyof every search it’s asked tomake.Moredisturbingly,Google links that search to a specific IP address, and, if possible, to a Google users’ account. Thus, in the bowels of Google’s database, there is a list of all searches made by you when you were logged into your gmail account, sitting, waiting, for someone to ask to see it.

Thegovernmentdidask.And in thenormalcourseof things, thegovern- ment’s request would be totally ordinary. It is unquestioned that the govern- mentgets toask thosewithrelevantevidence toprovide it foranongoingcivil orcriminal investigation(thereare limits,butnonereally significant).Google has evidence; the government would ordinarily have the right to get it.

Moreover, the government in this case explicitly promised it would not use this evidence foranythingmore thanevaluatingpatternsof consumption aroundporn.Inparticular, itpromised itwouldn’t traceanyparticularly sus- picious searches. Itwould ignore that evidence—whichordinarily itwouldbe free touse forwhateverpurpose it chose—just so it couldget access toaggre- gate data about searches for porn.

So what’s the problem this example illustrates? Before searchengines,noonehadany recordsof curiosity; therewasno

listof questionsasked.Nowthere is.Peopleobsessivelypepper searchengines with questions about everything. The vast majority of these are totally benign (“mushrooms AND ragout”). Some of them show something less benignabout the searcher (“eroticpicturesANDchildren”).Nowthere’s a list of all these questions, with some providing evidence of at least criminal intent.

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The government’s interest in that list will increase. At first, its demands will seemquiteharmless—sowhat if it counts thenumberof timespeopleask Google to point them to erotic pictures? Then, when not so harmless, the demandswill link toveryharmfulbehavior—searches that suggest terrorism, orabuse.Whocouldargueagainst revealing that?Finally,whennot soharm- less, andwhenthecrime isnot soharmful, thedemandswill simply insist this is an efficient way to enforce the law.“If you don’t like the law,change it.But until you do, let us enforce it.” The progression is obvious, inevitable, and irresistible.

E-mail

Electronicmail is a text-basedmessage stored indigital form.It is likea tran- scribed telephone call. When sent from one person to another, e-mail is copied and transmitted from machine to machine; it sits on these different machines until removed either by routines—decisions by machines—or by people.

The content of many e-mail messages is like the content of an ordinary telephone call—unplanned,unthinking, the ordinary chatter of friends.But unlikea telephonecall, this content is saved ina searchable form.Companies nowinvestmillions in technologies that scan theconversationsof employees that before were effectively private. Both in real time and in retrospect, the content of conversations can become known. On the theory that they“own the computer,”5 employers increasingly snoop in the e-mail of employees, looking for stuff they deem improper.6

In principle, such monitoring and searching are possible with telephone callsor letters. Inpractice, thesecommunicationsarenotmonitored.Tomon- itor telephones or regular mail requires time and money—that is, human intervention.Andthis costmeans thatmostwon’tdo it.Hereagain, thecosts of control yield a certain kind of freedom.

Controlling employees (or spouses) is one important new use of e-mail technologies. Another is the better delivery of advertisement. Google is again theleaderherewithitsnewGmailservice.Gmailcanadvertisetoyouasyouread youre-mail.Buttheadvanceis that theadvertisementis triggeredbythecontent of thee-mail.Imagineatelevisionthatshifteditsadvertisementas itheardwhat youwere talkingabouton thephone.Thecontentof the e-mail—andperhaps thecontentof your inboxgenerally—helpsdeterminewhat is showntoyou.

To make this system work well,Google needs you to keep lots of data on its servers.Thus the only thing within Gmail that is difficult to do—and it is really really difficult—is to delete content from a Google Gmail account.

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Gmail lets youdeleteone screenat a time.Butwhenyouhave20,000e-mails in your inbox, who has time? Would it be difficult for Gmail to enable a “delete all”function?Of coursenot.This isGoogle!Thus, through the clever use of architecture, Google assures more data is kept, and that data then becomes a resource for other purposes. If you ever get involved in a lawsuit, the firstquestionof the lawyer fromtheother side shouldbe—doyouhavea Gmail account? Because, if you do,your life sits open for review.

V-mail

If e-mail becomes a permanent record, why not v-mail? Voice mail systems archive messages and record the communication attributes of the conversa- tions. As technologies for voice recognition improve, so does the ability to search voice records.As voice mail systems shift to digital systems, archiving content on central servers rather than $50devices connected to thephoneat home, they become practical search resources. In principle, every night the government could scan all the stored voice recordings at every telephone company in the nation.This search would impose no burden on the user; it couldbe targetedonand limited to specific topics,and it couldoperate in the background without anyone ever knowing.

Voice

And why stop with recordings? According to one report, the NSA monitors over 650 million telephone conversations a day.7 That monitoring is auto- matic. It used to be of foreigners only,but now apparently the system moni- tors an extraordinary range of communication, searching for that bit or clue that triggers investigative concern.The system produces something akin to a weather report as well as particularized indicators. There are, for example, measures of“chatter”that may signal a storm.

This monitoring, like each of the examples before, creates no burden for thoseusinga telephone.Thoseusing thephonedon’t knowsomething is lis- teningontheotherend.Instead, the systemworksquietly in thebackground, searching this monitored communication in real time.

Video

In each of the examples so far, someone has chosen to use a technology, and that technologyhasmade theirprivacyvulnerable.Thechange isproducedas that technology evolves to make it simpler to monitor and search behavior.

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But the same evolution is happening outside networks as well. Indeed, it is happening in the quintessentially public place—the streets, or in public venues. This monitoring is the production of the current version of video technology.Originally, video cameras were a relatively benign form of mon- itoring. Because the product of their monitoring relied solely upon human interpretation, there were relatively few contexts in which it paid to have someone watch.And where someone wasn’t watching in real time, then the use of these technologies is to trace bad behavior after it happens. Few seem upsetwhenaconvenience storevideocameramakes itpossible to identify the criminal who has murdered the attendant.

Digital technology has changed the video, however. It is now a tool of intelligence,not just a tool torecord.InLondon,as I’vedescribed,camerasare spread throughthecity tomonitorwhichcarsdrive in thecity.This isbecause nonresidents must pay a special tax to drive in“congestion zones.”The cam- eras recordand interpret licenseplaces,andthendeterminewhether the right taxwaspaid for that car.Theobjectiveof the systemwas tominimizeconges- tion inLondon.Its consequence is adatabaseof everycar that entersLondon, tied to a particular time and location.

But themoreambitioususeof video surveillance ishuman face recogni- tion. While the technology received some very bad press when first intro- duced in Tampa,8 the government continues to encourage companies to develop the capacity to identify who someone is while that someone is in a traditionally anonymousplace.Asonevendoradvertises,“[f]ace recognition technology is the least intrusive and fastest biometric technology. . . . There is no intrusion or delay, and in most cases the subjects are entirely unaware of the process.They do not feel ‘under surveillance’or that their privacy has been invaded.”9

These technologies aren’t yet reliable.But they continue to be funded by both private investors and the government. Indeed, the government runs evaluation testsbi-annually to rate the reliabilityof the technologies.10 There must at least be someone who expects that someday it will possible to use a camera to identify who is in a crowd,or who boarded a train.

Body Parts

Criminals leave evidence behind, both because they’re usually not terribly rational and because it’s extremely hard not to.And technology is only mak- ing it harder not to.With DNA technology, it becomes increasingly difficult foracriminal toavoid leavinghismark,and increasinglyeasy for lawenforce- ment to identify with extremely high confidence whether X didY.

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Somenationshavebeguntocapitalizeon thisnewadvantage.Andagain, Britain is in the lead.11 Beginning in1995, theBritishgovernment startedcol- lecting DNA samples to include in a national registry.The program was ini- tiallypromotedasaway to fight terrorism.But inadecade, itsusehasbecome much less discriminating.

In December 2005,while riding public transportation in London, I read the following on a public announcement poster:

Abuse,Assault,Arrest:Ourstaff arehere tohelpyou.SpittingonDLRstaff is clas-

sifiedas anassault and is a criminaloffence.SalivaRecoveryKits arenowheldon

everytrainandwillbeusedtoidentifyoffendersagainst thenationalDNAdatabase.

And why not? Spitting may be harmless. But it is insulting. And if the tools exist to identify the perpetrator of the insult,why not use them?

{TXB2} In all these cases, technologies designed either without monitoring as their aimorwith just limitedmonitoringas their capacityhavenowbecomeexpert technologies formonitoring.Theaggregateof these technologiesproducesan extraordinary rangeof searchabledata.And,more importantly,as these tech- nologies mature, there will be essentially no way for anyone living within ordinary society toescape thismonitoring.Monitoring toproduce searchable datawillbecomethedefault architecture forpublic space,as standardas street lights. From the simple ability to trace back to an individual, to the more troubling ability to know what that individual is doing or likes at any partic- ular moment, the maturing data infrastructure produces a panopticon beyond anything Bentham ever imagined.

“Orwell”is thewordyou’re looking for.Andwhile Ibelieve thatanalogies to Orwell are just about always useless, let’s make one comparison here nonetheless.While the ends of the government in 1984 were certainly vastly more evil than anything our government would ever pursue, it is interesting to note just how inefficient, relative to the current range of technologies, Orwell’s technologies were. The central device was a “telescreen” that both broadcastedcontentandmonitoredbehavioron theother side.But thegreat virtue of the telescreen was that you knew what it, in principle, could see. Winston knew where to hide, because the perspective of the telescreen was transparent.12 It was easy to know what it couldn’t see, and hence easy to know where to do the stuff you didn’t want it to see.

That’snot theworldwe live in today.Youcan’tknowwhetheryour search on the Internet is beingmonitored.Youdon’t knowwhether a camera is try- ing to identify who you are.Your telephone doesn’t make funny clicks as the

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NSA listens in. Your e-mail doesn’t report when some bot has searched it. The technologies of today have none of the integrity of the technologies of 1984. None are decent enough to let you know when your life is being recorded.

There’s a second difference as well. The great flaw to the design of 1984 was in imagining just how it was that behavior was being monitored. There were no computers in the story. The monitoring was done by gaggles of guardswatchingbanksof televisions.But thatmonitoringproducednosim- ple way for the guards to connect their intelligence. There was no search across thebrainsof theguards.Sure,a guardmightnotice that you’re talking to someoneyou shouldn’t be talking toor that you’ve enteredapart of a city youshouldn’tbe in.But therewasnosingleguardwhohadacompletepicture of the life of Winston.

Again, that“imperfection”cannowbeeliminated.Wecanmonitorevery- thingandsearch theproductof thatmonitoring.EvenOrwell couldn’t imag- ine that.

{TXB2} I’ve surveyeda rangeof technologies to identify a commonform.Ineach, the individual acts in a context that is technically public. I don’t mean it should be treatedby the lawas“public”in the sense thatprivacy shouldnotbepro- tected there. I’mnot addressing thatquestionyet. Imeanonly that the indi- vidual is putting his words or image in a context that he doesn’t control. Walkingdown5thAvenue is theclearest example.Sendinga letter is another. In both cases, the individual has put himself in a stream of activity that he doesn’t control.

Thequestion forus, then, iswhat limits there shouldbe—inthenameof “privacy”—on the ability to surveil these activities. But even that question puts the matter too broadly.By“surveil,”I don’t mean surveillance generally. I mean the very specific kind of surveillance the examples above evince. I mean what we could call“digital surveillance.”

“Digital surveillance”is theprocessbywhichsomeformof humanactiv- ity is analyzedbyacomputeraccording tosomespecifiedrule.Therulemight say “flag all e-mail talking about Al Qaeda.” Or it might say “flag all e-mail praisingGovernorDean.”Again,at this point I’mnot focusedupon thenor- mative or legal question of whether such surveillance should be allowed.At thispoint,we’re justworking throughdefinitions. In eachof the cases above, the critical feature in each is that a computer is sortingdata for some follow- up review by some human. The sophistication of the search is a technical question,but there’s no doubt that its accuracy is improving substantially.

So should this form of monitoring be allowed?

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I findwhenIask thisquestion framedprecisely like this that thereare two polar opposite reactions.On the one hand, friends of privacy say that there’s nothingnewhere.There’snodifferencebetweenthepolice readingyourmail, and the police’s computer reading your e-mail. In both cases, a legitimate and reasonable expectation of privacy has been breached. In both cases, the law should protect against that breach.

Ontheotherhand, friendsof security insist there is a fundamentaldiffer- ence. As Judge Richard Posner wrote in the Washington Post, in an article defending the Bush Administration’s (extensive13) surveillance of domestic communications, “[m]achine collection and processing of data cannot, as such, invade privacy.” Why? Because it is a machine that is processing the data.Machines don’t gossip.They don’t care about your affair with your co- worker.They don’t punish you for your political opinions.They’re just logic machines that act based upon conditions. Indeed, as Judge Posner argues, “[t]his initial sifting, far from invading privacy (a computer is not a sentient being), keeps most private data from being read by any intelligence officer.” We’re better off having machines read our e-mail, Posner suggests, both because of the security gain, and because the alternative snoop—an intelli- gence officer—would be much more nosey.

But itwouldgotoo far tosuggest there isn’t somecost to this system.If we lived in a world where our every communication was monitored (if?), that wouldcertainlychallenge the sense thatwewere“left alone.”Wewouldbe left alone in the sensea toddler is left inaplayroom—withparents listeningcare- fully from the next room. There would certainly be something distinctively different about the world of perpetual monitoring, and that difference must be reckoned in any account of whether this sort of surveillance should be allowed.

Weshouldalsoaccount for the“best intentions”phenomenon.Systemsof surveillanceare instituted foronereason; theygetused foranother. Jeff Rosen hascataloged theabusesof the surveillanceculture thatBritainhasbecome:14

Videocamerasused to leeratwomenor for sensationalnewsstories.Or in the UnitedStates, themassive surveillance for thepurposeof tracking“terrorists” was also used to track domestic environmental and antiwar groups.15

But let’s frame thequestion in itsmost compelling form. Imagine a sys- temof digital surveillance inwhich thealgorithmwasknownandverifiable: We knew, that is, exactly what was being searched for; we trusted that’s all thatwasbeing searched for.That surveillancewasbroadand indiscriminate. But before anything could be done on the basis of the results from that sur- veillance, a court would have to act. So the machine would spit out bits of data implicating X in some targeted crime, and a court would decide

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whether that data sufficed either to justify an arrest or a more traditional search.And finally, to make the system asprotective aswecan, theonly evi- dence that could be used from this surveillance would be evidence directed against the crimes being surveilled for.So for example, if you’re looking for terrorists, you don’t use the evidence to prosecute for tax evasion. I’m not saying what the targeted crimes are; all I’m saying is that we don’t use the traditional rule that allows all evidence gathered legally tobe usable for any legal end.

Would such a system violate the protections of the FourthAmendment? Should it?

The answer to this question depends upon your conception of the value protected by the Fourth Amendment. As I described in Chapter 6, that amendment was targeted against indiscriminate searches and“general war- rants”—that is, searches thatwerenotparticularized toanyparticular individ- ual and the immunity that was granted to those engaging in that search.But those searches, like any search at that time, imposed burdens on the person being searched. If you viewed the value the FourthAmendment protected as theprotection fromtheunjustifiedburdenof this indiscriminate search, then this digital surveillance would seem to raise no significant problems. As framedabove, theyproducenoburdenatallunless sufficient evidence isdis- covered to induce a court to authorize a search.

But it may be that we understand the Fourth Amendment to protect a kind of dignity. Even if a search does not burden anyone, or even if one doesn’t notice the searchat all, this conceptionof privacyholds that the very ideaof a search is anoffense todignity.Thatdignity interest is onlymatched if the state has a good reason to search before it searches. From this perspec- tive, a search without justification harms your dignity whether it interferes with your life or not.

I saw these two conceptions of privacy play out against each other in a tragically common encounter in Washington, D.C. A friend and I had arrangeda“police ride-along”—ridingwithDistrictpoliceduring theirordi- nary patrol. The neighborhood we patrolled was among the poorest in the city,andaround11:00 P.M. a report came in thatacaralarmhadbeen tripped ina locationclose toours.Whenwearrivednear the scene,at least fivepolice officerswereattempting tohold threeyouths; threeof theofficerswerehold- ing the suspects flat against the wall, with their legs spread and their faces pressed against the brick.

These three were “suspects”—they were near a car alarm when it went off—and yet, from the looks of things, you would have thought they had been caught holding the Hope diamond.

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Andthenanextraordinarydisruptionbrokeout.Tothesurpriseof every- one, and to my terror (for this seemed a tinder box, and what I am about to describe seemedthematch),oneof the threeyouths,noolder thanseventeen, turnedaround ina fitof angerandstarted screamingat thecops.“Every time anything happens in this neighborhood, I get thrown against the wall, and a gun pushed against my head. I’ve never done anything illegal, but I’m con- stantly being pushed around by cops with guns.”

His friend then turned around and tried to calm him down. “Cool it, man, they’re just trying to do their job. It’ll be over in a minute, and every- thing will be cool.”

“I’mnotgoing tocool it.Whythe fuckdoIhave to live thisway? Iamnot a criminal. I don’t deserve to be treated like this. Someday one of these guns isgoing togooff byaccident—andthenI’ll bea fuckingstatistic.What then?”

At this point the cops intervened, three of them flipping the indignant youth around against the wall, his face again flat against the brick.“This will be over in a minute. If you check out, you’ll be free to go. Just relax.”

In the voice of rage of the first youth was the outrage of dignity denied. Whether reasonable or not, whether minimally intrusive or not, there was something insulting about this experience—all the more insulting when repeated, one imagines, over and over again. As Justice Scalia has written, wondering whether the framers of the Constitution would have considered constitutional the police practice known as a “Terry stop”—stopping and frisking any individual whenever the police have a reasonable suspicion—“I frankly doubt . . . whether the fiercely proud men who adopted our Fourth Amendment would have allowed themselves to be subjected,on mere suspi- cion of being armed and dangerous, to such indignity.”16

Andyet again, there is theargumentof minimal intrusion. If privacy is a protectionagainstunjustifiedandexcessivedisruption, then thiswasno inva- sion of privacy. As the second youth argued, the intrusion was minimal; it would pass quickly (as it did—five minutes later, after their identification checked out, we had left); and it was reasonably related to some legitimate end.Privacy here is simply the protection against unreasonable and burden- some intrusions,and this search, the secondyouthargued,wasnot sounrea- sonable and burdensome as to justify the fit of anger (which also risked a much greater danger).

From this perspective, the harm in digital surveillance is even harder to reckon. I’m certain there are those who feel an indignity at the very idea that recordsabout themarebeingreviewedbycomputers.Butmostwouldrecog- nize a very different dignity at stake here. Unlike those unfortunate kids against the wall, there is no real interference here at all. Very much as with

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thosekids, if nothing is found,nothingwillhappen.Sowhat is the indignity? How is it expressed?

A third conception of privacy is about neither preserving dignity nor minimizing intrusion.It is insteadsubstantive—privacyasaway toconstrain thepowerof thestate toregulate.Here theworkofWilliamStuntz is aguide.17

Stuntzargues that the realpurposeof theFourthandFifthAmendments is to makesometypesof regulation toodifficultbymaking theevidenceneeded to prosecute such violations effectively impossible to gather.

This is ahard idea forus to imagine. Inourworld, the sourcesof evidence are many—credit card records, telephone records, video cameras at 7- Elevens—so it’shard forus to imagineanycrimethat therewouldn’tbe some evidence to prosecute. But put yourself back two hundred years when the only real evidencewas testimonyandthings,andtherulesof evidence forbade the defendant from testifying at all. Imagine in that context the state wanted to punish you for “sedition.” The only good evidence of sedition would be your writings or your own testimony about your thoughts. If those two sourceswereeliminated, then itwouldbepractically impossible toprosecute sedition successfully.

As Stuntz argues, this is just what the Fourth and FifthAmendments do. Combined, theymakecollecting theevidence foracrime like sedition impos- sible, therebymaking ituseless for the state to try toprosecute it.Andnot just sedition—asStuntz argues, the effect of theFourth,Fifth,andSixthAmend- ments was to restrict the scope of regulation that was practically possible.As he writes: “Just as a law banning the use of contraceptives would tend to encouragebedroomsearches, soalsowouldabanonbedroomsearches tend to discourage laws prohibiting contraceptives.”18

But were not such searches already restricted by, for example, the First Amendment?Wouldnot a lawpunishing seditious libel havebeenunconsti- tutional in any case? In fact, that was not at all clear at the founding; indeed, it was so unclear that in 1798 Congress passed the Alien and Sedition Acts, which in effect punished sedition quite directly.19 Many thought these laws unconstitutional, but the Fourth and Fifth Amendments would have been effective limitson their enforcement,whether the substantive lawswere con- stitutional or not.

In this conception, privacy is meant as a substantive limit on govern- ment’spower.20 Understood thisway,privacydoesmore thanprotectdignity or limit intrusion;privacy limits what government can do.

If thiswere theconceptionof privacy, thendigital surveillancecouldwell accommodate it. If there were certain crimes that it was inappropriate to prosecute, we could remove them from the search algorithm. It would be

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hard to identifywhatcrimesconstitutionallymustberemoved fromthealgo- rithm—the First Amendment clearly banishes sedition from the list already. Maybe the rule simply tracks constitutional limitation.

Nowthekey is to recognize that, inprinciple, these threedistinct concep- tionsof privacy couldyielddifferent results dependingon the case.A search, for example,mightnotbe intrusivebutmightoffenddignity. In that case,we wouldhave to choose a conceptionof privacy thatwebelievedbest captured the Constitution’s protection.

At the time of the founding,however, these different conceptions of pri- vacy would not, for the most part, have yielded different conclusions. Any search that reached beyond the substantive limits of the amendment, or beyond the limits of dignity,would also have been a disturbance.Half of the framers could have held the dignity conception and half the utility concep- tion,butbecauseevery searchwouldhave involvedaviolationof both,all the framers could have endorsed the protections of the FourthAmendment.

Today,however, that’snot true.Today these threeconceptionscouldyield very different results. The utility conception could permit efficient searches that are forbidden by the dignity and substantive conceptions. The correct translation(asBrandeis employedthe termintheOlmsteadwiretappingcase) depends on selecting the proper conception to translate.

In this sense,ouroriginalprotectionswere theproductof whatCassSun- stein calls an“incompletely theorized agreement.”21 Given the technology of the time, there was no reason to work out which theory underlay the consti- tutional text; all three were consistent with existing technology. But as the technology has changed, the original context has been challenged.Now that technologies suchas thewormcan searchwithoutdisturbing, there is a con- flict about what the FourthAmendment protects.

This conflict is the other side of Sunstein’s incompletely theorized agree- ment.We might say that in any incompletely theorized agreement ambiguities will be latent, and we can describe contexts where these latencies emerge. The latent ambiguities about the protection of privacy, for example, are being ren- deredpatentbytheevolutionof technology.Andthis inturnforcesustochoose.

Some will once again try to suggest that the choice has been made—by our Constitution, in our past. This is the rhetoric of much of our constitu- tional jurisprudence,but it isnotveryhelpfulhere. Idonot think the framers worked out what the amendment would protect in a world where perfectly noninvasive searches could be conducted.They did not establish a constitu- tion to apply in all possible worlds; they established a constitution for their world.When theirworlddiffers fromours in away that reveals a choice they did not have to make, then we need to make that choice.

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PRIVACY IN PUBLIC: DATA

The story I’ve told so far is about limits on government:What power should thegovernmenthave to surveilouractivities,at leastwhenthoseactivities are in public? That’s the special question raised by cyberspace: What limits on “digital surveillance”should therebe?There are,of course,manyothermore traditional questions that are also important. But my focus was“digital sur- veillance.”

In thispart, I consider a thirdprivacyquestion that is closely related,but very distinct. This is the question of what presumptive controls we should haveover thedata thatwereveal toothers.The issuehere isnotprimarily the controlof thegovernment.Thequestion is thusbeyondtheordinary reachof the Fourth Amendment. Instead, the target of this control is private actors whohave either gathereddata aboutmeas they’veobservedme,or collected data from me.

Again, let’s take this fromtheperspectiveof real space first. If Ihire apri- vate detective to follow you around, I’ve not violated anyone’s rights. If I compile a list of places you’ve been, there’s nothing to stop me from selling that list.You might think this intrusive.You might think it outrageous that the law would allow this to happen. But again, the law traditionally didn’t worry much about this kind of invasion because the costs of such surveil- lance were so high.Celebrities and the famous may wish the rules were dif- ferent, but for most of us, for most of our history, there was no need for the law to intervene.

Thesamepoint couldbemadeabout thedata I turnedover tobusinesses or others in the days before the Internet. There was nothing in the law to limit what these entities did with that data. They could sell it to mailing list companiesorbrokers; theycoulduse ithowever theywanted.Again, theprac- tical cost of doing things with such data was high, so there wasn’t that much donewith thisdata.And,more importantly, the invasivenessof any suchuse of data was relatively low. Junk mail was the main product, and junk mail in physical space is not a significant burden.

Buthere,aswith“digital surveillance,”thingshavechangeddramatically. Just a couple stories will give us a taste of the change:

• In the beginning of 2006, the Chicago Sun-Times reported22 that there were

websites selling the records of telephone calls made from cell phones.A blog,

AmericaBlog, demonstrated the fact by purchasing the cell phone records of

General Wesley Clark. For around $120, the blog was able to prove what most

would have thought impossible: that anyone with a credit card could find

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something sopersonal as the list (and frequencyandduration)of people some-

one calls on a cell phone.

This conduct was so outrageous that no one really stood up to defend it.

But the defense isn’t hard to construct. Wesley Clark “voluntarily” dialed the

numbersonhis cell phone.He thusvoluntarily turned thatdataover to the cell

phonecompany.Because thecellphonecompanycould selldata, itmade it eas-

ier for the company to keep prices low(er). Clark benefited from those lower

prices. So what’s his complaint?

•Anumberof years ago I receiveda letter fromAT&T.Itwas addressed toanold

girlfriend, but the letter had not been forwarded. The address was my then-

currentapartment.AT&Twanted toofferheranewcredit card.Theywereabit

late: She and I had broken up eight years before. Since then, she had moved to

Texas,and Ihadmoved toChicago, toWashington,back toChicago,on toNew

Haven, back to Chicago, and finally to Boston, where I had moved twice. My

peripateticism,however,did not deterAT&T.With great faith in my constancy,

it believed that a woman I had not even seen in many years was living with me

in this apartment.

HowdidAT&Tmaintain suchabelief?Well, floatingabout incyberspace is

lots of data about me. It has been collected from me ever since I began using

credit cards, telephones, and who knows what else. The system continuously

tries to update and refine this extraordinary data set—that is, it profiles who I

am and,using that profile,determines how it will interact with me.

These are just the tip of the iceberg. Everything you do on the Net pro- duces data. That data is, in aggregate, extremely valuable, more valuable to commerce than it is to the government. The government (in normal times) really cares only that you obey some select set of laws.But commerce is keen to figure out how you want to spend your money, and data does that. With massive amounts of data about what you do and what you say, it becomes increasingly possible to market to you in a direct and effective way. Google Gmailprocesses thedata inyoure-mail to seewhat it should try to sell.Ama- zon watches what you browse to see what special “Gold Box” offers it can make.There’s anendless list of entities thatwant toknowmoreaboutyou to better serve (at least) their interests.What limits, or restrictions,ought there to be on them?

Weshouldbeginwithanobviouspoint thatmighthelpdirect ananswer. There’s a big difference between (1) collecting data about X to suss out a crime or a criminal, (2) collecting data about X that will be sold toY simply to reveal facts about X (such as his cell phone calls), and (3) collecting data about X to better market to X. (1) and (2) make X worse off, though if we

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believe thecrime isproperlyacrime, thenwith(1),X isnotworseoff relative to where he should be. (3) in principle could make you better off—it facili- tates advertising that is better targetedandbetterdesigned to encouragevol- untary transactions. I say“inprinciple”becauseeven though it’spossible that the ads arebetter targeted, there are alsomoreof them.Onbalance,Xmight be worse off with the flood of well-targeted offers than with a few less well- targetedoffers.Butdespite thatpossibility, themotiveof (3) isdifferent from (1) and (2), and that might well affect how we should respond.

So let’s begin with the focus on (3): What is the harm from this sort of “invasion”?Arguments rage on both sides of this question.

The“no harm”side assumes that the balance of privacy is struck at the linewhereyoureveal informationaboutyourself to thepublic.Sure, informa- tion kept behind closed doors or written in a private diary should be pro- tectedby the law.Butwhenyougoout inpublic,whenyoumake transactions thereor sendmaterial there,yougiveupanyright toprivacy.Othersnowhave the right to collect data about yourpublicbehavior anddowith itwhat suits them.

Why is that idea not troubling to these theorists? The reasons are many:

• First, the harm is actually not very great.You get a discount card at your local

grocery store; the store thencollectsdataaboutwhatyoubuy.With thatdata, the

store may market different goods to you or figure out how better to price its

products; itmayevendecide that it shouldofferdifferentmixesof discounts to

better serve customers.These responses, the argument goes, are the likely ones,

because the store’s business is only to sell groceries more efficiently.

• Second, it is an unfair burden to force others to ignore what you show them. If

dataaboutyouarenotusablebyothers, then it is as if youwere requiringothers

todiscardwhatyouhavedepositedontheir land.If youdonot likeothersusing

information about you,do not put it in their hands.

• Third, these data actually do some good. I do not know why Nike thinks I am a

good person to tell about their latest sneakers, and I do not know why Keds

does not know to call. In both cases, I suspect the reason is bad data about me.

I would love it if Nike knew enough to leave me alone.And if these data were

better collected and sorted, it would.

•Finally, ingeneral,companiesdon’t spendmoneycollecting thesedata toactually

learnanythingabout you.Theywant to learnaboutpeople like you.Theywant

toknowyour type. Inprinciple, theywouldbehappy toknowyour typeeven if

theycouldnot then learnwhoyouare.What themerchantswant is away todis-

criminate—only in the senseof beingable to tell thedifferencebetweensortsof

people.

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The other side of this argument, however, also has a point. It begins, again, by noticing the values that were originally protected by the imperfec- tionof monitoring technology.This imperfectionhelpedpreserve important substantive values; one such value is the benefit of innocence. At any given time, thereare innocent facts aboutyou thatmayappear, inaparticular con- textor toaparticular set,guilty.PeterLewis, ina New York Times article called “Forget Big Brother,”puts the point well:

Surveillance cameras followed the attractive youngblondwoman through the

lobbyof themidtownManhattanhotel,kept a glassy eyeonher as she rode the

elevator up to the 23rd floor and peered discreetly down the hall as she

knocked at the door to my room. I have not seen the videotapes, but I can

imagine thedigital readout superimposedon the scenes,noting the exact time

of the encounter. That would come in handy if someone were to question

later why this woman,who is not my wife,was visiting my hotel room during

a recent business trip. The cameras later saw us heading off to dinner and to

the theater—a middle aged, married man from Texas with his arm around a

pretty EastVillage woman young enough to be his daughter.

“As a matter of fact,”Lewis writes,“she is my daughter.”23

One lesson of the story is the burden of these monitored facts.The bur- den isonyou, themonitored, first toestablishyour innocence,andsecondto assure all who might see these ambiguous facts that you are innocent. Both processes, however, are imperfect; say what you want, doubts will remain. There are always some who will not believe your plea of innocence.

Modernmonitoringonly exacerbates thisproblem.Your lifebecomesan ever-increasingrecord;youractionsare foreverheld in storage,open tobeing revealed at any time,and therefore at any time demanding a justification.

A second value follows directly from this modern capacity for archiving data.Weall desire to live in separate communities,or amongorwithin sepa- rate normative spaces. Privacy, or the ability to control data about yourself, supports this desire. It enables these multiple communities and disables the powerof onedominant community tonormothers intooblivion.Think, for example, about a gay man in an intolerant small town.

Thepointcomes throughmostclearlywhencontrastedwithanargument advanced by David Brin.24 Brin argues against this concern with privacy—at least if privacy isdefinedas theneed toblock theproductionanddistribution of dataaboutothers.Hearguesagainst itbecausehebelieves that suchanend is impossible; thegenie isoutof thebottle.Better,he suggests, to findways to ensure that this data-gathering ability is generally available. The solution to

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your spying on me is not to block your spying,but to let me spy on you—to hold you accountable, perhaps for spying, perhaps for whatever else you might be doing.

There are two replies to this argument. One asks: Why do we have to choose?Why can’t we both control spying and build in checks on the distri- bution of spying techniques?

Theother reply ismore fundamental.Brinassumes that this counter spy- ing would be useful to hold others “accountable.” But according to whose norms?“Accountable”is abenign termonly so longaswehaveconfidence in thecommunitydoing theaccounting.Whenwe live inmultiplecommunities, accountability becomes a way for one community to impose its view of pro- priety on another. Because we do not live in a single community, we do not live by a single set of values.And perfect accountability can only undermine this mix of values.

The imperfection in present monitoring enables this multiplication of normative communities. The ability to get along without perfect recording enables a diversity that perfect knowledge would erase.

A third value arises from a concern about profiling. If you search within Google for “mortgage” in a web search engine, advertising for mortgages appearsonyour computer screen.The same for sex and for cars.Advertising is linked to the search you submit. Data is collected, but not just about the search. Different sites collect just about every bit of personal information aboutyouthat theycan.25Andwhenyou link fromtheGoogle search toaweb page, the search you just performed is passed along to the next site.

Datacollection is thedominantactivityof commercialwebsites.Some92 percentof themcollectpersonaldata fromwebusers,which they thenaggre- gate, sort,anduse.26 OscarGandycalls this the“panoptic sort”—avast struc- ture forcollectingdataanddiscriminatingonthebasisof thatdata—andit is this discrimination,he says, that ought to concern us.27

Butwhyshould it concernus?Putasidean importantclassof problems— themisuseof thedata—andfocus insteadon itsordinaryuse.As I saidearlier, the main effect is simply to make the market work more smoothly: Interests and products are matched to people in a way that is better targeted and less intrusive than what we have today. Imagine a world where advertisers could tellwhichvenuespaidandwhichdidnot;where itwas inefficient toadvertise with billboards and on broadcasts; where most advertising was targeted and specific.Advertising would be more likely to go to those people for whom it wouldbeuseful information.Orso theargumentgoes.This isdiscrimination, nodoubt,butnot thediscriminationof JimCrow. It is thewonderful sort of discrimination that spares me Nike ads.

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But beyond a perhaps fleeting concern about how such data affect the individual, profiling raises a more sustained collective concern about how it might affect a community.

That concern ismanipulation.Youmightbe skeptical about thepowerof televisionadvertising tocontrolpeople’sdesires:Television is soobvious, the motives soclear.Butwhathappenswhenthemotive isnot soobvious?When options just seemtoappear rightwhenyouhappen towant them?When the systemseems toknowwhatyouwantbetter andearlier thanyoudo,howcan you know where these desires really come from?

Whether this possibility is a realistic one,or whether it should be a con- cern,arehardandopenquestions.StevenJohnsonarguesquiteeffectively that in fact these agents of choice will facilitate a much greater range and diver- sity—even, in part, chaos—of choice.28 But there’s another possibility as well—profileswillbegin tonormalize thepopulation fromwhich thenormis drawn.The observing will affect the observed.The system watches what you do; it fits you intoapattern; thepattern is then fedback toyou in the formof options set by the pattern; the options reinforce the pattern; the cycle begins again.

A second concern is about equality. Profiling raises a question that was latent in the market until quite recently.For much of the nineteenth century in the United States economic thought was animated by an ideal of equality. In the civil space individualswereheld tobe equal.They couldpurchase and sell equally; they couldapproachothersonequal terms.Facts about individ- uals might be known, and some of these facts might disqualify them from some economic transactions—your prior bankruptcy, for example, might inhibit your ability tomake transactions in the future.But in themain, there were spaces of relative anonymity, and economic transactions could occur within them.29

Over time this spaceof equalityhasbeendisplacedbyeconomiczonings that aim at segregation.30 They are laws, that is, that promote distinctions based on social or economic criteria.31 The most telling example is zoning itself. It was not until this century that local law was used to put people into segregated spaces.32 At first, this law was racially based, but when racially based zoning was struck down, the techniques of zoning shifted.33

It is interesting to recall just how contentious this use of law was.34 To many, rich and poor alike, it was an affront to theAmerican ideal of equality tomakewhereyou livedependonhowmuchmoneyyouhad.It alwaysdoes, of course,whenproperty is somethingyoumustbuy.Butzoning lawsaddthe support of law to the segregation imposed by the market.The effect is to re- create in law,and therefore in society,distinctions among people.

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Therewasa timewhenwewouldhavedefinedourcountryasaplace that aimed to erase these distinctions.The historian GordonWood describes this goal as an important element of the revolution that gave birth to the United States.35 The enemy was social and legal hierarchy; the aim was a society of equality. The revolution was an attack on hierarchies of social rank and the special privileges they might obtain.

All social hierarchies require informationbefore they canmakediscrim- inations of rank.Having enough information about people required,histor- ically, fairly stable socialorders.Making fineclassdistinctions—knowing, for instance,whetherawell-dressedyoungmanwas thegentlemanheclaimedto be or only a dressed-up tradesman—required knowledge of local fashions, accents,customs,andmanners.Onlywhere therewas relatively littlemobility could these systems of hierarchy be imposed.

As mobility increased, then, these hierarchical systems were challenged. Beyondtheextremesof thevery richandverypoor, theability tomakesubtle distinctionsof rankdisappearedas themobility and fluidityof societymade them too difficult to track.

Profilingchangesall this.Anefficientandeffective systemformonitoring makes itpossibleonceagain tomake these subtledistinctionsof rank.Collect- ingdata cheaplyandefficientlywill takeusback to thepast.Thinkabout fre- quent flyer miles. Everyone sees the obvious feature of frequent flyer miles—the free trips for people who fly frequently. This rebate program is quite harmless on its own.The more interesting part is the power it gives to airlines to discriminate in their services.

Whena frequent flyermakesa reservation, the reservationcarrieswith it a customer profile.This profile might include information about which seat she prefers or whether she likes vegetarian food. It also tells the reservation clerk how often this person flies. Some airlines would then discriminate on the basis of this information. The most obvious way is through seat loca- tion—frequent flyers get better seats.But such information might also affect how food is allocated on the flight—the frequent flyers with the most miles get first choice; those with the fewest may get no choice.

In the scheme of social justice, of course, this is small potatoes. But my point ismoregeneral.Frequent flyer systemspermit there-creationof systems of status.Theysupply informationabout individuals thatorganizationsmight value, and use, in dispensing services.36 They make discrimination possible because they restore information that mobility destroyed. They are ways of defeating one benefit of anonymity—the benefit of equality.

Economistswill argue that inmanycontexts this ability todiscriminate— in effect, to offer goods at different prices to different people—is overall a

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benefit.37 Onaverage,peoplearebetteroff if pricediscriminationoccurs than if it does not.So we are better off, these economists might say, if we facilitate such discrimination when we can.

But these values are just one side of the equation.Weighed against them are the values of equality. For us they may seem remote, but we should not assume that because they are remote now they were always remote.

Take tipping:As benign (if annoying) as you might consider the prac- tice of tipping, there was a time at the turn of the century when the very idea was an insult. It offended a free citizen’s dignity. As Viviana Zelizer describes it:

In the early 1900s, as tipping became increasingly popular, it provoked great

moral and social controversy. In fact, there were nationwide efforts, some suc-

cessful, by state legislatures to abolish tipping by turning it into a punishable

misdemeanor. In countless newspaper editorials and magazine articles, in eti-

quette books, and even in court, tips were closely scrutinized with a mix of

curiosity, amusement, and ambivalence—and often open hostility. When in

1907, the government officially sanctioned tipping by allowing commissioned

officers andenlistedmenof theUnitedStatesNavy to include tips as an itemin

their travel expense vouchers, the decision was denounced as an illegitimate

endorsement of graft. Periodically, there were calls to organize anti-tipping

leagues.38

{TXB2} There is a conception of equality that would be corrupted by the efficiency thatprofilingembraces.That conception is avalue tobeweighedagainst effi- ciency. Although I believe this value is relatively weak in American life, who am I to say? The important point is not about what is strong or weak, but about the tensionorconflict that laydormantuntil revealedby theemerging technology of profiling.

The pattern should be familiar by now, because we have seen the change elsewhere.Onceagain,thecodechanges,throwingintorelief aconflictof values. Whereasbeforetherewasrelativeequalitybecausethe informationthatenabled discrimination was too costly to acquire,now it pays to discriminate.The dif- ference—whatmakes itpay—istheemergenceof acode.Thecodechanges,the behavior changes,andavalue latent in theprior regime isdisplaced.

Wecouldreactbyhobbling thecode, thuspreserving thisworld.Wecould create constitutional or statutory restrictions thatprevent amove to thenew world.Orwecould findways toreconcile this emergingworldwith thevalues we think are fundamental.

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SOLUTIONS

I’ve identified two distinct threats to the values of privacy that the Internet will create. The first is the threat from “digital surveillance”—the growing capacity of the government (among others) to “spy” on your activities “in public.”From Internet access, to e-mail, to telephone calls, to walking on the street,digital technology is openingup theopportunity for increasinglyper- fect burdenless searches.

The second threat comes fromthe increasingaggregationof databypri- vate (among other) entities.These data are gathered not so much to“spy”as to facilitate commerce. Some of that commerce exploits the source of the data (Wesley Clark’s cell phone numbers). Some of that commerce tries to facilitate commerce with the source of that data (targeted ads).

Against these twodifferent risks,wecan imagine four typesof responses, each mapping one of the modalities that I described in Chapter 7:

• Law: Legal regulation could be crafted to respond to these threats.We’ll con-

sider some of these later, but the general form should be clear enough. The

law could direct the President not to surveil American citizens without rea-

sonable suspicion, for example. (Whether the President follows the law is a

separate question.) Or the law could ban the sale of data gathered from cus-

tomers without express permission of the customers. In either case, the law

threatens sanctions to change behavior directly. The aim of the law could

either be to enhance the power of individuals to control data about them,or

to disable such power (for example,by making certain privacy-related trans-

actions illegal).

• Norms:Norms could be used to respond to these threats.Norms among com-

mercial entities, for example, could help build trust around certain privacy

protective practices.

• Markets: In ways that will become clearer below, the market could be used to

protect the privacy of individuals.

• Architecture/Code: Technology could be used to protect privacy. Such tech-

nologies are often referred to as“Privacy Enhancing Technologies.”These are

technologies designed to give the user more technical control over data asso-

ciated with him or her.

As I’vearguedagainandagain, there isnosingle solution topolicyprob- lemsonthe Internet.Every solutionrequires amixof at least twomodalities. And in the balance of this chapter, my aim is to describe a mix for each of these two threats to privacy.

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No doubt this mix will be controversial to some. But my aim is not so muchtopushanyparticularmixof settingson thesemodalitydials,as it is to demonstrate a certain approach. I don’t insist on the particular solutions I propose, but I do insist that solutions in the context of cyberspace are the product of such a mix.

Surveillance

Thegovernment surveils asmuchas it can in its fightagainstwhatever its cur- rent fight is about. When that surveillance is human—wiretapping, or the like—then traditional legal limits ought to apply. Those limits impose costs (and thus,using the market, reduce the incidence to those most significant); they assure at least some review.And, perhaps most importantly, they build within law enforcement a norm respecting procedure.

Whenthat surveillance isdigital,however, then it ismyviewthatadiffer- ent set of restrictions should apply.The law should sanction“digital surveil- lance” if, but only if, a number of conditions apply:

1.The purpose of the search enabled in the algorithm is described.

2.The function of the algorithm is reviewed.

3.The purpose and the function match is certified.

4.Noaction—includingasubsequent search—canbe takenagainstany individual

on the basis of the algorithm without judicial review.

5.With very limited exceptions,no action against any individual can be pursued

for matters outside the purpose described.Thus, if you’re looking for evidence

of drug dealing, you can’t use any evidence discovered for prosecuting credit

card fraud.

That describes the legal restrictions applied against the government in order to enhance privacy. If these are satisfied, then in my view such digital surveillance should not conflict with the FourthAmendment. In addition to these, thereareprivacyenhancing technologies (PETs) that shouldbebroadly available to individuals as well. These technologies enable individuals to achieveanonymity in their transactionsonline.Manycompaniesandactivist groups help spread these technologies across the network.

Anonymity in this sense simplymeansnon-traceability.Tools that enable this sortof non-traceabilitymake itpossible for an individual to sendames- sagewithout thecontentof thatmessagebeing traced to the sender. If imple- mented properly, there is absolutely no technical way to trace that message. That kind of anonymity is essential to certain kinds of communication.

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It ismyviewthat,at least so longaspolitical repressionremainsacentral feature of too many world governments, free governments should recognize a protected legal right to these technologies. I acknowledge that view is con- troversial.A less extremeviewwouldacknowledge thedifferencesbetweenthe digital world and real world,39 and guarantee a right to pseudonymous com- munication but not anonymous communication. In this sense, a pseudony- mous transaction doesn’t obviously or directly link to an individual without court intervention. But it contains an effective fingerprint that would allow theproperauthority,under thepropercircumstances, to trace thecommuni- cation back to its originator.

In this regime, the important question is who is the authority, and what process is required togetaccess to the identification.Inmyview,theauthority mustbe thegovernment.Thegovernmentmust subject itsdemandfor reveal- ing the identityof an individual to judicialprocess.And theexecutive should never hold the technical capacity to make that link on its own.

Again, no one will like this balance. Friends of privacy will be furious with any endorsement of surveillance.But I share Judge Posner’s view that a sophisticatedsurveillance technologymightactually increaseeffectiveprivacy, if itdecreases the instances inwhichhumans intrudeonotherhumans.Like- wise, friendsof securitywillbeappalledat the idea thatanyonewouldendorse technologies of anonymity. “Do you know how hard it is to crack a drug lord’s encrypted e-mail communication?”one asked me.

The answer is no, I don’t have a real sense.But I care less about enabling the war on drugs than I do about enabling democracies to flourish. Tech- nologies that enable the latter will enable the former.Or to be less cowardly, technologies that enableAungSanSuuKyi tocontinue topush fordemocracy inBurmawill enableAlQaeda tocontinue towage its terroristwaragainst the United States. I acknowledge that. I accept that might lead others to a less extremeposition.But Iwouldurge thecompromise in favorof surveillance to go no further than protected pseudonymity.

Control of Data

The problem of controlling the spread or misuse of data is more complex and ambiguous. There are uses of personal data that many would object to. Butmany isnot all.There are somewhoareperfectlyhappy to reveal certain data to certain entities, and there are many more who would become happy if they could trust that their data was properly used.

Here again, the solution mixes modalities. But this time, we begin with the technology.40

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As I described extensively in Chapter 4, there is an emerging push to build an Identity Layer onto the Internet. In my view, we should view this IdentityLayerasaPET(privateenhancing technology): Itwouldenable indi- viduals to more effectively control the data about them that they reveal. It wouldalsoenable individuals tohavea trustablepseudonymous identity that websites andothers shouldbehappy toaccept.Thus,with this technology, if a site needs to know I am over 18, or an American citizen, or authorized to access auniversity library, the technologycancertify thisdatawithout reveal- ing anything else. Of all the changes to information practices that we could imagine, this would be the most significant in reducing the extent of redun- dant or unnecessary data flowing in the ether of the network.

A second PET to enable greater control over the use of data would be a protocol called thePlatformforPrivacyPreferences (orP3P for short).41 P3P would enable a machine-readable expression of the privacy preferences of an individual. It would enable an automatic way for an individual to recognize whena sitedoesnot complywithhisprivacypreferences. If you surf to a site that expresses its privacy policy using P3P, and its policy is inconsistent with yourpreferences, thendependinguponthe implementation,either the siteor you are made aware of the problem created by this conflict. The technology thus couldmakeclear a conflict inpreferences.Andrecognizing that conflict is the first step to protecting preferences.

The critical part of this strategy is to make these choices machine-read- able. If you Google“privacy policy,”you’ll get close to 2.5 billion hits on the Web. And if you click through to the vast majority of them (not that you could do that in this lifetime), you will find that they are among the most incomprehensible legal texts around (and that’s saying a lot). These policies are the product of pre-Internet thinking about how to deal with a policy problem.Thegovernmentwaspushed to“solve”theproblemof Internetpri- vacy. Its solution was to require“privacy policies”be posted everywhere.But does anybody read these policies? And if they do, do they remember them from one site to another? Do you know the difference between Amazon’s policies and Google’s?

The mistake of the government was in not requiring that those policies alsobeunderstandablebyacomputer.Because if wehad2.5billionsiteswith both a human readable and machine readable statement of privacy policies, then we would have the infrastructure necessary to encourage the develop- mentof thisPET,P3P.Butbecause thegovernmentcouldnot thinkbeyondits traditional manner of legislating—because it didn’t think to require changes in code as well as legal texts—we don’t have that infrastructure now. But, in my view, it is critical.

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These technologies standingalone,however,donothing tosolve theprob- lem of privacy on the Net. It is absolutely clear that to complement these technologies,weneed legal regulation.But this regulation isof threeverydif- ferent sorts.The firstkind is substantive—laws that set theboundariesof pri- vacy protection. The second kind is procedural—laws that mandate fair procedures for dealing with privacy practices. And the third is enabling— laws thatmakeenforceableagreementsbetween individuals andcorporations about how privacy is to be respected.

(1) Limits on Choice

One kind of legislation is designed to limit individual freedom. Just as labor law bans certain labor contracts, or consumer law forbids certain credit arrangements, thiskindof privacy lawwouldrestrict the freedomof individ- uals to give up certain aspects of their privacy.The motivation for this limi- tationcouldeitherbesubstantiveorprocedural—substantive in that it reflects a substantive judgmentaboutchoices individuals shouldnotmake,orproce- dural in that it reflects the view that systematically, when faced with this choice, individualswill choose inways that they regret. Ineither case, the role of this type of privacy regulation is to block transactions deemed to weaken privacy within a community.

(2) The Process to Protect Privacy

The most significant normative structure around privacy practices was framedmore than thirty years agoby theHEW(Health,Education,Welfare) Advisory Committee on Automated Data Systems. This report set out five principles that were to define the “Code of Fair Information Practices.”42

These principles require:

1.Theremustbenopersonaldata record-keeping systemswhoseveryexistence is

secret.

2.There must be a way for a person to find out what information about the per-

son is in a record and how it is used.

3.Theremustbeaway foraperson toprevent informationabout theperson that

wasobtained foronepurpose frombeingusedormadeavailable forotherpur-

poses without the person’s consent.

4.There must be a way for a person to correct or amend a record of identifiable

information about the person.

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5. Any organization creating, maintaining, using, or disseminating records of

identifiable personal data must assure the reliability of the data for their

intended use and must take precautions to prevent misuses of the data.

Theseprinciples express important substantivevalues—forexample, that data not be reused beyond an original consent,or that systems for gathering databereliable—but theydon’t interferewithan individual’s choice torelease his or her own data for specified purposes. They are in this sense individual autonomy enhancing, and their spirit has guided the relatively thin and ad hoc range of privacy legislation that has been enacted both nationally and at the state level.43

(3) Rules to Enable Choice About Privacy

Thereal challenge forprivacy,however, ishowtoenableameaningful choice in thedigital age.And in this respect, the techniqueof theAmericangovern- ment so far—namely, to require text-based privacy policy statements—is a perfect exampleof hownot toact.Cluttering thewebwith incomprehensible words will not empower consumers to make useful choices as they surf the Web. If anything, it drives consumers away from even attempting to under- stand what rights they give away as they move from site to site.

P3Pwouldhelp in this respect,butonly if (1) therewerea strongpush to spread the technology across all areas of the web and (2) the representations made within the P3P infrastructure were enforceable.Both elements require legal action to be effected.

In the first edition of this book, I offered a strategy that would, in my view,achieveboth(1)and(2):namely,byprotectingpersonaldata througha property right.Aswithcopyright,aprivacyproperty rightwouldcreate strong incentives in those who want to use that property to secure the appropriate consent.That content could thenbechanneled(through legislation) through appropriate technologies. But without that consent, the user of the privacy propertywouldbeaprivacypirate. Indeed,manyof the sametools that could protect copyright in this sense could also be used to protect privacy.

This solutionalsorecognizeswhat Ibelieve is an important featureof pri- vacy—that people value privacy differently.44 It also respects those different values. Itmaybeextremely important tomenot tohavemy telephonenum- ber easily available; you might not care at all. And as the law’s presumptive preference is tousea legaldevice thatgives individuals the freedomtobedif- ferent—meaning the freedom to have and have respected wildly different subjectivevalues—that suggests thedeviceweusehere isproperty.Aproperty

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system is designed precisely to permit differences in value to be respected by the law.If youwon’t sell yourChevyNova foranything less than$10,000, then the law will support you.

Theopposite legal entitlement in theAmerican legal tradition is called a “liability rule.”45 A liability rulealsoprotects anentitlement,but itsprotection is less individual. If youhavearesourceprotectedbya liability rule, thenIcan take that resource so longas Ipaya state-determinedprice.Thatpricemaybe moreor less thanyouvalue it at.But thepoint is, I have the right to take that resource, regardless.

An example from copyright law might make the point more clearly. A derivative right is the right to build upon a copyrighted work.A traditional example is a translation, or a movie based on a book. The law of copyright gives the copyrightowner aproperty rightover thatderivative right.Thus, if youwant tomakeamovieoutof JohnGrisham’s latestnovel,youhave topay whateverGrishamsays. If youdon’t,andyoumake themovie,you’veviolated Grisham’s rights.

The same is not true with the derivative rights that composers have. If a songwriter authorizes someone to record his song, then anyone else has a right to record that song, so longas they followcertainprocedures andpaya specifiedrate.Thus,whileGrishamcanchoose togiveonlyone filmmaker the right to make a film based on his novel, the Beatles must allow anyone to recorda songamemberof theBeatles composed,so longas thatpersonpays. Thederivative right fornovels is thusprotectedbyaproperty rule; thederiv- ative right for recordings by a liability rule.

The lawhas all sorts of reasons for imposinga liability rule rather thana property rule.But thegeneralprinciple is thatwe shoulduseaproperty rule, at least where the“transaction costs”of negotiating are low,and where there is no contradicting public value.46 And it is my view that, with a technology like P3P, we could lower transaction costs enough to make a property rule work. That property rule in turn would reinforce whatever diversity people had about views about their privacy—permitting some to choose to waive their rights and others to hold firm.

TherewasonemorereasonIpushed foraproperty right. Inmyview,the protection of privacy would be stronger if people conceived of the right as a property right.Peopleneed to takeownershipof this right,andprotect it,and propertizing is the traditional toolweuse to identifyandenableprotection.If wecouldseeone fractionof thepassiondefendingprivacy thatweseedefend- ing copyright,we might make progress in protecting privacy.

Butmyproposal foraproperty rightwas resoundingly rejectedbycritics whoseviews I respect.47 Idon’t agreewith thecoreof thesecriticisms.For the

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reasons powerfully marshaled by Neil Richards, I especially don’t agree with theclaimthat therewouldbeaFirstAmendmentproblemwithpropertizing privacy.48 In any case, William McGeveran suggested an alternative that reached essentially the same end that I sought, without raising any of the concerns that most animated the critics.49

The alternative simply specifies that a representation made by a website throughtheP3Pprotocolbeconsideredabindingoffer,which, if acceptedby someoneusing thewebsite,becomesanenforceablecontract.50 That rule, tied to a requirement that privacy policies be expressed in a machine-readable form such as P3P, would both (1) spread P3P and (2) make P3P assertions effectively law. This would still be weaker than a property rule, for reasons I will leave to the notes.51 And it may well encourage the shrink-wrap culture, which raises its own problems. But for my purposes here, this solution is a useful compromise.

To illustrateagain thedynamicof cyberlaw:Weuse law(arequirementof policies expressed in a certain way, and a contract presumption about those expressions) to encourage a certain kind of technology (P3P), so that that technologyenables individuals tobetterachieve incyberspacewhat theywant. It is LAW helping CODE to perfect privacy POLICY.

This isnot to say,of course, thatwehavenoprotections forprivacy.Aswe have seen throughout, there are other laws besides federal, and other regula- torsbesides the law.At times theseother regulatorsmayprotectprivacybetter than law does,but where they don’t, then in my view law is needed.

PRIVACY COMPARED

Thereaderwhowasdissatisfiedwithmyargument in the last chapter is likely to begin asking pointed questions.“Didn’t you reject in the last chapter the very regime you are endorsing here? Didn’t you reject an architecture that would facilitate perfect sale of intellectual property? Isn’t that what you’ve created here?”

Thecharge is accurate enough. Ihave endorsedanarchitecturehere that is essentially the samearchitecture Iquestioned for intellectualproperty.Both are regimes for trading information; both make information “like”“real” property. But with copyright, I argued against a fully privatized property regime;with privacy, I am arguing in favor of it.What gives?

The difference is in the underlying values that inform, or that should inform, information in each context. In the context of intellectual property, our bias should be for freedom. Who knows what “information wants”;52

whatever itwants,weshouldread thebargain that the lawstrikeswithholders

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of intellectual property as narrowly as we can. We should take a grudging attitude to property rights in intellectual property; we should support them only as much as necessary to build and support information regimes.

But (at least some kinds of) information about individuals should be treateddifferently.Youdonot strikeadealwith the lawaboutpersonalorpri- vate information. The law does not offer you a monopoly right in exchange for your publication of these facts. That is what is distinct about privacy: Individuals should be able to control information about themselves. We should be eager to help them protect that information by giving them the structures and the rights to do so.We value, or want, our peace.And thus, a regimethatallowsus suchpeacebygivinguscontroloverprivate information is a regimeconsonantwithpublicvalues. It is a regimethatpublic authorities should support.

There is a second,perhaps more helpful,way of making the same point. Intellectual property, once created, is non-diminishable. The more people whouse it, themore societybenefits.Thebias in intellectualproperty is thus, properly, towards sharingand freedom.Privacy,on theotherhand, isdimin- ishable.Themorepeoplewhoaregiven license to treadonaperson’sprivacy, the less thatprivacyexists. In thisway,privacy ismore like realproperty than it is like intellectual property.No single person’s trespass may destroy it, but each incremental trespass diminishes its value by some amount.

This conclusion is subject to importantqualifications,only twoof which I will describe here.

The first is that nothing in my regime would give individuals final or complete control over the kinds of data they can sell, or the kinds of privacy they canbuy.TheP3Pregimewould inprinciple enableupstreamcontrol of privacy rights as well as individual control. If we lived, for example, in a regime that identified individuals based on jurisdiction, then transactions with the P3P regime could be limited based on the rules for particular juris- dictions.

Second, there is no reason such a regime would have to protect all kinds of private data, and nothing in the scheme so far tells us what should and should not be considered “private” information. There may be facts about yourself that you are not permitted to hide; more important, there may be claimsaboutyourself thatyouarenotpermitted tomake(“Iama lawyer,”or, “Call me, I’m a doctor”).You should not be permitted to engage in fraud or to do harm to others. This limitation is an analog to fair use in intellectual property—a limit to the space that privacy may protect.

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I started this chapterbyclaiming thatwithprivacy thecat is alreadyoutof the bag. We already have architectures that deny individuals control over what others know about them; the question is what we can do in response.

My response has been: Look to the code, Luke. We must build into the architecture a capacity to enable choice—not choice by humans but by machines. The architecture must enable machine-to-machine negotiations about privacy so that individuals can instruct their machines about the pri- vacy they want to protect.

Buthowwillweget there?Howcan this architecturebeerected? Individ- uals may want cyberspace to protect their privacy, but what would push cyberspace to build in the necessary architectures?

Not the market.The power of commerce is not behind any such change. Here, the invisible hand would really be invisible. Collective action must be taken to bend the architectures toward this goal, and collective action is just what politics is for.Laissez-faire will not cut it.

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T W E L V E

f r e e s p e e c h

THE RIGHT TO FREE SPEECH IS NOT THE RIGHT TO SPEAK FOR FREE. IT IS NOT THE right to free access to television,or the right thatpeoplewill nothate you for what you have to say. Strictly speaking—legally speaking—the right to free speech in theUnitedStatesmeans theright tobe free frompunishmentby the government in retaliation forat least some(probablymost) speech.Youcan- notbe jailed for criticizing thePresident, thoughyoucanbe jailed for threat- eninghim;youcannotbe fined forpromotingsegregation, thoughyouwillbe shunned if you do.You cannot be stopped from speaking in a public place, thoughyoucanbe stopped fromspeakingwithanFMtransmitter.Speech in theUnitedStates isprotected—inacomplex,andat timesconvoluted,way— but its constitutional protection is a protection against the government.

Nevertheless,a constitutional accountof free speech that thoughtonlyof governmentwouldberadically incomplete.Twosocieties couldhave thesame “FirstAmendment”—thesameprotectionsagainstgovernment’swrath—but if withinonedissenters are toleratedwhile in theother theyare shunned, the twosocietieswouldbeverydifferent free-speechsocieties.More thangovern- ment constrains speech, and more than government protects it.A complete accountof this—andany—rightmust consider the full rangeof burdensand protections.

Consider, for example, the “rights” of the disabled to protection against discriminationaseachof the fourmodalitiesofChapter7construct them.The law protects the disabled. Social norms don’t. The market provides goods to help the disabled, but they bear the full cost of that help. And until the law intervened, architecture did little to help the disabled integrate into society (think about stairs).Thenet of these four modalities describes theprotection, or“rights,”that inanyparticularcontext thedisabledhave.Lawmight intervene

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tostrengthenthatprotection—forexample,byregulatingarchitectures sothey better integrate the disabled. But for any given“right,”we can use this mix of modalities todescribehowwell (ornot) that“right”isprotected.

In the terms of Chapter 7, then, these are modalities of both regulation andprotection.That is, theycan functionbothasconstraintsonbehaviorand as protections against other constraints. The following figure captures the point.

In the center is the object regulated—the pathetic dot from Chapter 7. Surrounding the individual now is a shield of protection, the net of law/norms/market/architecture that limits the constraints these modalities wouldotherwiseplaceon the individual. I havenot separated the four in the sphere of the shield because obviously there is no direct match between the modalityof constraint and themodalityof protection.When lawasprotec- tor conflicts with law as constraint, constitutional law overrides ordinary law.

Thesemodalities function together.Somemightundercutothers,mean- ing that the sum of protections might seem to be less significant than the

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parts. The “right” to promote the decriminalization of drugs in the present context of the war on drugs is an example. The law protects your right to advocate thedecriminalizationof drugs.The state cannot lockyouup if, like GeorgeSoros,youstart acampaign for thedecriminalizationof marijuanaor if, like the Nobel Prize–winning economist Milton Friedman or the federal judgeRichardPosner,youwritearticles suggesting it. If theFirstAmendment means anything, it means that the state cannot criminalize speech about law reform.

But that legal protection does not mean that I would suffer no conse- quences forpromoting legalizationof drugs.Myhometownneighborswould be appalled at the idea, and some no doubt would shun me. Nor would the marketnecessarily supportme.It is essentially impossible tobuy timeontel- evision for a speech advocating such a reform. Television stations have the right to select their ads (within some limits); mine would most likely be deemedtoocontroversial.1 Stationsalsohave theFCC—anactive combatant in thewarondrugs—lookingover their shoulders.Andeven if Iwerepermit- ted to advertise, I am not George Soros. I do not have millions to spend on suchacampaign. Imightmanagea fewoff-hour spotsona local station,but I could not afford, for instance, a campaign on the networks during prime time.

Finally, architecture wouldn’t protect my speech very well either. In the United States at least, there are few places where you can stand before the public and address them about some matter of public import without most people thinkingyouanutoranuisance.There isnospeakers’corner inevery city; most towns have no town meeting. “America offline,” in this sense, is verymuch likeAmericaOnline—notdesigned togive individuals access toa wide audience to address public matters. Only professionals get to address Americansonpublic issues—politicians, scholars,celebrities, journalists,and activists, most of whom are confined to single issues. The rest of us have a choice—listen,or be dispatched to the gulag of social lunacy.

Thus, the effective protection for controversial speech is more condi- tional than a view of the law alone would suggest. Put differently, when more than law is reckoned, the right to be a dissenter is less protected than it could be.

Let’s take this examplenowtocyberspace.How is the“right”topromote the legalizationof drugs incyberspaceprotected?Here too,of course, the law protects my right of advocacy—at least in the United States. But it is quite possible thatmyspeechwouldbe illegal elsewhereandthatperhaps Icouldbe prosecuted for uttering such speech in cyberspace “in” another country. Speechpromoting theNaziParty, forexample, is legal in theUnitedStatesbut

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not inGermany.2 Uttering such speech in cyberspacemaymakeone liable in German space as well.

The law therefore is an imperfect protection. Do norms help to protect speech?With therelativeanonymityof cyberspaceand itsgrowingsize,norms donot functionwell there.Even incyberspaceswherepeopleknoweachother well, theyare likely tobemore tolerantof dissidentviewswhentheyknow(or believe,or hope) the dissident lives thousands of miles away.

The market also provides a major protection to speech in cyberspace— relative to real space, market constraints on speech in cyberspace are tiny. Recall how easily Jake Baker became a publisher,with a potential readership greater thanthereadershipof all lawbooks(like thisone)published in the last decade. Look at the more than 50 million blogs that now enable millions to express their view of whatever.The low cost of publishing means publishing is no longer a barrier to speaking. As Eben Moglen asks, “Will there be an unpublished poet in the 21st Century?”

Butontopof this listof protectorsof speech incyberspace is (onceagain) architecture.Relative anonymity, decentralized distribution,multiple points of access,nonecessary tie togeography,nosimple systemto identify content, toolsof encryption3—all these featuresandconsequencesof the Internetpro- tocol make it difficult to control speech in cyberspace. The architecture of cyberspace is therealprotectorof speechthere; it is thereal“FirstAmendment in cyberspace,”and this FirstAmendment is no local ordinance.4

Just thinkaboutwhat thismeans.Forover60years theUnitedStateshas beentheexporterof acertainpolitical ideology,at its coreaconceptionof free speech. Many have criticized this conception: Some found it too extreme, others not extreme enough. Repressive regimes—China, North Korea— rejected itdirectly; tolerant regimes—France,Hungary—complainedof cul- tural decay; egalitarian regimes—the Scandinavian countries—puzzled over how we could think of ourselves as free when only the rich can speak and pornography is repressed.

This debate has gone on at the political level for a long time.And yet, as if undercoverof night,wehavenowwired thesenationswithanarchitecture of communication that builds within their borders a far stronger First Amendment than our ideology ever advanced.Nations wake up to find that their telephone lines are tools of free expression, that e-mail carries news of their repression far beyond their borders, that images are no longer the monopolyof state-run televisionstationsbutcanbe transmitted fromasim- ple modem.We have exported to the world, through the architecture of the Internet, a First Amendment more extreme in code than our own First Amendment in law.

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This chapter is about the regulation of speech and the protection of speech in cyberspace—and therefore also in real space. My aim is to obsess about the relationship between architecture and the freedom it makes possi- ble, andabout the significanceof law in theconstructionof that architecture. It is toget you to seehowthis freedomisbuilt—theconstitutionalpolitics in the architectures of cyberspace.

I say “politics” because this building is not over. As I have argued (over and over again), there is no single architecture for cyberspace; there is no givenornecessary structure to itsdesign.The first-generationInternetmight well have breached walls of control. But there is no reason to believe that architects of the second generation will do so,or not to expect a second gen- eration to rebuild control. There is no reason to think, in other words, that this initial flash of freedom will not be short-lived.And there is certainly no justification for acting as if it will not.

Wecanalreadysee thebeginningsof this reconstruction.Thearchitecture is being remade to re-regulate what real-space architecture before made reg- ulable.Already the Net is changing from free to controlled space.

Some of these steps to re-regulate are inevitable; some shift back is unavoidable.Before thechange is complete,however,wemustunderstandthe freedoms the Net now provides and determine which freedoms we mean to preserve.

Andnot just preserve.Thearchitectureof the Internet, as it is rightnow, is perhaps themost importantmodelof free speech since the founding.This modelhas implications farbeyonde-mail andwebpages.Twohundredyears after the framers ratified the Constitution, the Net has taught us what the First Amendment means. If we take this meaning seriously, then the First Amendment will require a fairly radical restructuring of the architectures of speech off the Net as well.5

But all of that is gettingaheadof the story. In thebalanceof this chapter, I address fourdistinct free speech in cyberspacequestions.With each, Iwant to consider how“free speech”is regulated.

These stories do not all have the same constitutional significance. But theyall illustrate thedynamicat thecoreof theargumentof thisbook—how technology interacts with law to create policy.

THE REGULATORS OF SPEECH: PUBLICATION

FloydAbrams is one of America’s leading FirstAmendment lawyers. In 1971 hewasayoungpartnerat the lawfirmof Cahill,Gordon.6 Late in theevening of Monday, June14,he receivedacall fromJamesGoodale, in-housecounsel

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for the New York Times. Goodale asked Abrams, together with Alexander Bickel,aYaleLawSchoolprofessor, todefend the New York Times ina lawsuit that was to be filed the very next day.

The New York Times had just refused the government’s request that it cease all publication of what we now know as the “Pentagon Papers” and return the source documents to the Department of Defense.7 These papers, mostly from the Pentagon’s “History of U.S. Decision Making Process on VietnamPolicy,”evaluatedU.S.policyduring theVietnamWar.8 Their evalu- ation was very negative, and their conclusions were devastating. The papers made the government look extremely bad and made the war seem unwinnable.

The papers had been given to the New York Times by someone who did think the war was unwinnable;who had worked in the Pentagon and helped write the report; someone who was not anti-war at first but, over time, had come to see the impossibility that theVietnamWar was.

This someonewasDanielEllsberg.Ellsberg smuggledoneof the15copies of thepapers fromasafeat theRANDCorporation toanoffsitephotocopier. There, he and a colleague, Anthony Russo, photocopied the papers over a period of several weeks.9 Ellsberg tried without success to make the papers public by having them read into the Congressional Record. He eventually contacted the New York Times reporter Neil Sheehan in the hope that the Times wouldpublish them.Ellsbergknewthat thiswasacriminal act,but for him the war itself was a criminal act; his aim was to let theAmerican people see just what kind of a crime it was.

For twoandahalf months the Times editorsporedover thepapers,work- ing toverify theirauthenticityandaccuracy.Afteranextensive review,theedi- tors determined that they were authentic and resolved to publish the first of a ten-part series of excerpts and stories on Sunday, June 13,1971.10

OnMondayafternoon,onedayafter the first installmentappeared,Attor- ney General John Mitchell sent a telegraph to the New York Times stating:

I respectfully request that you publish no further information of this character

and advise me that you have made arrangements for the return of these docu-

ments to the Department of Defense.11

When the Times failed to comply, the government filed papers to enjoin the paper from continuing to publish stories and excerpts from the docu- ments.12

The government’s claims were simple: These papers contained govern- ment secrets; they were stolen from the possession of the government; to

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publish them would put many American soldiers at risk and embarrass the UnitedStates in theeyesof theworld.This concernaboutembarrassmentwas more than mere vanity: Embarrassment, the government argued, would weakenourbargainingposition in theefforts tonegotiateapeace.Becauseof theharmthatwouldcomefromfurtherpublication, theCourt shouldstep in to stop it.

Theargumentwasnotunprecedented.Past courtshad stopped thepub- lication of life-threatening texts, especially in the context of war. As the Supreme Court said in Near v. Minnesota, for example,“no one would ques- tionbut that agovernmentmightpreventactualobstruction to its recruiting serviceor thepublicationof the sailingdatesof transportsor thenumberand location of troops.”13

Yet the question was not easily resolved. Standing against precedent was an increasingly clear command: If the First Amendment meant anything, it meant that the government generally cannot exercise the power of prior restraint.14“Prior restraint”iswhen thegovernmentgets a court to stoppub- licationof somematerial, rather thanpunish thepublisher later forwhatwas illegally published. Such a power is thought to present much greater risks to a system of free speech.15 Attorney General Mitchell was asking the Court to exercise this power of prior restraint.

TheCourt struggledwith thequestion,but resolved itquickly. It struggled because thecosts seemedsohigh,16 butwhen it resolved thequestion, itdid so quite squarely against the government. In the Court’s reading, the Constitu- tion gave the New York Times the right to publish without the threat of prior restraint.

The Pentagon Papers is a FirstAmendment classic—a striking reminder of how powerful a constitution can be. But even classics get old. And in a speech that Abrams gave around the time the first edition to this book was published,Abramsaskedan incrediblequestion: Is the case really important anymore? Or has technology rendered this protection of the First Amend- ment unnecessary?

Abrams’s question was motivated by an obvious point: For the govern- ment to succeed in a claim that a printing should be stopped, it must show “irreparable harm”—harm so significant and irreversible that the Court must intervene to prevent it.17 But that showing depends on the publica- tion not occurring—if the Pentagon Papers had already been published by the Chicago Tribune, the government could have claimed no compelling interest to stop its publication in the New York Times. When the cat is already out of the bag, preventing further publication does not return the cat to the bag.

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Thispoint ismadeclear inacase that cameafter New York Times—acase thatcouldhavebeen inventedbya lawprofessor. In the late1970s, the Progres- sive commissioned an article by Howard Morland about the workings of an H-bomb.The Progressive first submitted themanuscript to theDepartmentof Energy, and the government in turn brought an injunction to block its pub- lication. The government’s claim was compelling: to give to the world the secrets of how to build a bomb would make it possible for any terrorist to annihilate any city.On March 26,1979, Judge RobertWarren of theWestern DistrictofWisconsinagreedand issueda temporary restrainingorderenjoin- ing the Progressive from publishing the article.18

Unlike the Pentagon Papers case, this case didn’t race to the Supreme Court. Instead, it stewed,no doubt in part because the district judge hearing the case understood the great risk this publication presented. The judge did stop the publication while he thought through the case. He thought for two and a half months. The publishers went to the Court of Appeals, and to the SupremeCourt,askingeachtohurry the thinkingalong.Nocourt intervened.

Until Chuck Hansen, a computer programmer, ran a“DesignYour Own H-Bomb”contest andcirculatedaneighteen-page letter inwhichhedetailed his understanding of how an H-Bomb works. On September 16, 1979, the Press-Connection of Madison, Wisconsin, published the letter. The next day thegovernmentmoved towithdrawits case,conceding that itwasnowmoot. The compelling interest of the government ended once the secret was out.19

Note what this sequence implies. There is a need for the constitutional protectionthat thePentagonPaperscase representsonlybecause there isa real constraint on publishing. Publishing requires a publisher, and a publisher canbepunishedby the state.But if the essenceor factsof thepublicationare published elsewhere first, then the need for constitutional protection disap- pears. Once the piece is published, there is no further legal justification for suppressing it.

So,Abramsasks,would thecasebe important today? Is theconstitutional protection of the Pentagon Papers case still essential?

Surprisingly, Floyd Abrams suggests not.20 Today there’s a way to ensure that thegovernmentneverhasacompelling interest inaskingacourt to sup- press publication. If the New York Times wanted to publish the Pentagon Papers today, it could ensure that the papers had been previously published simply by leaking them to a USENET newsgroup, or one of a million blogs. Morequickly than itsownnewspaper isdistributed, thepaperswould thenbe published in millions of places across the world. The need for the constitu- tional protection would be erased, because the architecture of the system gives anyone the power to publish quickly and anonymously.

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Thus the architecture of the Net,Abrams suggested, eliminates the need for the constitutional protection.Even better,Abrams went on, the Net pro- tects against prior restraint just as the Constitution did—by ensuring that strongcontrolson informationcanno longerbeachieved.TheNetdoeswhat publicationof thePentagonPaperswasdesignedtodo—ensure that the truth does not remain hidden.

But there’s a second side to this story. OnJuly17,1996,TWAFlight800 fell fromthesky tenmilesoff the south-

erncoastof CenterMoriches,NewYork.Twohundredandthirtypeoplewere killed. Immediately after the accident the United States launched the (then) largest investigationof anairplanecrash in thehistoryof theNationalTrans- portationSafetyBoard(NTSB),spending$27million todiscover thecauseof the crash, which eventually was determined to have been a mechanical fail- ure.21

Thiswasnot,however, theviewof the Internet.Fromthebeginning, sto- ries circulated about “friendly fire”—missiles that were seen to hit the air- plane. Dozens of eyewitnesses reported that they saw a streaking light shoot toward the plane just before it went down. There were stories about missile tests conducted by the Navy seventy miles from the crash site.22 The Net claimed that therewasacover-upby theU.S.government tohide its involve- ment in one of the worst civil air disasters inAmerican history.

The government denied these reports. Yet the more the government denied them, themorecontrary“evidence”appearedon theNet.23 And then, as a final straw in the story, there was a report,purportedly by a government insider, claiming that indeed there was a conspiracy—because evidence sug- gested that friendly fire had shot down TWA 800.24

The former press secretary to President John F. Kennedy believed this report. Ina speech inFrance,PierreSalingerannounced thathis government was hiding the facts of the case, and that he had the proof.

I remember this event well. I was talking to a colleague just after I heard Salinger’s report. I recountedSalinger’s report to this colleague,a leadingcon- stitutional scholar fromoneof the topAmerican lawschools.Webothwereat a loss about what to believe.There were cross-cutting intuitions about cred- ibility. Salinger was no nut,but the story was certainly loony.

Salinger, it turnsout,hadbeencaughtby theNet.Hehadbeen trickedby the flip side of the point FloydAbrams has made. In a world where everyone canpublish, it is veryhard toknowwhat tobelieve.Publishersarealsoeditors, andeditorsmakedecisionsaboutwhat topublish—decisions thatordinarily aredrivenat least inpartby thequestion, is it true? Statements cannot verify themselves.Wecannot always tell, froma sentence reportinga fact about the

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world,whether that sentence is true.25 So in addition to our own experience and knowledge of the world, we must rely on structures of reputation that build credibility. When something is published, we associate the claim with thepublisher. If the New York Times says that alienshavekidnapped thePres- ident, it is vieweddifferently fromastorywith the identicalwordspublished in the National Enquirer.

When a new technology comes along, however, we are likely to lose our bearings.This is nothing new. It is said that the word phony comes from the birth of the telephone—the phony was the con artist who used the phone to trick people who were familiar with face-to-face communication only. We should expect the same uncertainty in cyberspace, and expect that it too, at first,will shake expectations of credibility.

Abrams’s argument then depends on a feature of the Net that we cannot take for granted. If there were credibility on the Net, the importance of the Pentagon Papers case would indeed be diminished. But if speech on the Net lackscredibility, theprotectionsof theConstitutionagainbecome important.

“Credibility,”however, isnotaquality that is legislatedorcoded.It comes frominstitutionsof trust thathelp thereader separate reliable fromunreliable sources.Flight800 thus raisesan importantquestion:Howcanwereestablish credibility in this space so that it is not lost to the loons?26

In the first edition of this book, that question could only be answered hypothetically. But in the time since, we’ve begun to see an answer to this question emerge.And the word at the center of that answer is:Blog.

At this writing, there are more than 50 million weblogs on the Internet. There’s no single way to describe what these blogs are. They differ dramati- cally, andprobablymostof whatgetswritten there is just crap.But it iswrong to judge a dynamic by a snapshot. And the structure of authority that this dynamic is building is something very new.

At theirbest,blogsare instancesof amateur journalism—where“amateur,” again, means not second rate or inferior, but one who does what he does for the love of the work and not the money. These journalists write about the world—some from a political perspective, some from the point of view of a particular interest. But they all triangulate across a range of other writers to produceanargument,or a report, that adds somethingnew.Theethicof this space is linking—of pointing,andcommenting.Andwhile this linking isnot “fair andbalanced,”it doesproduceavigorous exchangeof ideas.

Theseblogs are ranked.Services suchasTechnorati constantly count the blog space,watchingwho links towhom,andwhichblogsproduce thegreat- est credibility. And these rankings contribute to an economy of ideas that builds a discipline around them. Bloggers get authority from the citation

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others give them; that authority attracts attention. It is anewreputation sys- tem, established not by editors or CEOs of media companies, but by an extraordinarily diverse range of contributors.

And in the end, these amateur journalists have an effect. When TWA flight 800 fell from the sky, there were theories about conspiracies that were filtered throughnostructureof credibility.Today, therearemorestructuresof credibility. So when Dan Rather produced a letter on CBS’s 60 Minutes pur- porting to establish a certain fraud by the President, it took the blogosphere 24hours toestablish thismediacompany’s evidencewas faked.More incred- ibly, it took CBS almost two weeks to acknowledge what blogs had estab- lished.27 The collaborative work of the blogs uncovered the truth, and in the process embarrassed a very powerful media company.But by contrast to the behavior of that media company, they demonstrated something important about how the Net had matured.

This collaboration comes with no guarantees, except the guarantee of a process.The most extraordinary collaborative process in the context of con- tent is Wikipedia. Wikipedia is a free online encyclopedia, created solely by volunteers.Launchedat thebeginningof 2001, these (literally thousandsof) volunteershavenowcreatedover2millionarticles.Thereareninemajor lan- guage versions (not including the Klingon version), with about half of the total articles in English.

Theaimof theWikipedia isneutrality.Thecontributors edit, and reedit, to frameapieceneutrally.Sometimes thateffort fails—particularlycontrover- sial topics can’thelpbutattract fierceconflict.But in themain, thework is an unbelievable success. With nothing more than the effort of volunteers, the most used, and perhaps the most useful encyclopedia ever written has been created through millions of uncoordinated instances of collaboration.

Wikipedia,however, can’t guarantee its results. It can’t guarantee that, at any particular moment, there won’t be errors in its entries.But of course,no one can make that guarantee. Indeed, in one study that randomly collected entries from Wikipedia and from Encyclopedia Britannica, there were just as many errors in Britannica as inWikipedia.28

But Wikipedia is open to a certain kind of risk that Britannica is not— maliciousness. InMay2005, theentry toanarticleabout JohnSeigenthalerSr. was defaced by a prankster. Because not many people were monitoring the entry, it took fourmonthsbefore theerrorwasnoticedandcorrected.Seigen- thalerwasn’thappyabout this.He,understandably,complainedthat itwas the architecture of Wikipedia that was to blame.

Wikipedia’s architecture couldbedifferent.But the lessonhere isnot its failures. It is instead the extraordinary surpriseof Wikipedia’s success.There

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is an unprecedented collaboration of people from around the world work- ing to converge upon truth across a wide range of topics.That, in a sense, is what science does as well. It uses a different kind of “peer review”to police its results. That “peer review” is no guarantee either—South Koreans, for example, were quite convinced that one of their leading scientists, Hwang Woo-Suk, had discovered a technique to clone human stem cells. They believed it because peer-reviewed journals had reported it. But whether right tobelieve it ornot, the journalswerewrong.Woo-Sukwasa fraud,and he hadn’t cloned stem cells, or anything else worth the attention of the world.

Blogs don’t coordinate any collaborative process to truth in the way Wikipediadoes. Ina sense, thevotes foranyparticularpositionatanypartic- ular moment are always uncounted, while at every moment they are always talliedonWikipedia.Buteven if they’reuntallied,readersof blogs learn to tri- angulate on the truth. Just as with witnesses at an accident (though better, since these witnesses have reputations), the reader constructs what must be true from a range of views. Cass Sunstein rightly worries that the norms amongbloggershavenotevolvedenoughto include internaldiversityof cita- tion.29 Thatmaywellbe true.Butwhatever thenormal readingpractice is for ordinary issues, the diversity of the blogosphere gives readers an extremely wide range of views to consider when any major issue—such as that which stung Salinger—emerges.When tied to the maturing reputation system that constantly tempers influence, this means that it is easier to balance extreme views with the correction that many voices can build.

Acredibility can thusemerge, that,whilenotperfect, is at leastdifferently encumbered.NBCNewsmustworryabout itsbottomline,because its report- ing increasingly responds to it.Blogs don’t have a bottom line.They are—in the main—amateurs. Reputation constrains both, and the competition between the two forms of journalism has increasingly improved each. We have a richer environment for free speech today than five years ago—a com- mercialpress temperedbyblogs regulatedbya technologyof reputation that guides the reader as much as the writer.

Errorswill remain.Everyonehasa favorite example—mine is the ridicu- lous story about Al Gore claiming to have“invented the Internet.”The story originated with a CNN interview on March 9, 1999. In that interview, in response to a question about what was different about Gore over Bradley, Gore said the following:

Duringmyservice in theUnitedStatesCongress, I took the initiative increating

the Internet. I took the initiative inmoving forwardawhole rangeof initiatives

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that have proven to be important to our country’s economic growth and envi-

ronmental protection, improvements in our educational system.30

As is clear fromthecontext,Gore is statingnot thathe invented the tech- nology of the Internet, but that he “took the initiative in moving forward a whole range of initiatives” that have been important to the country. But the storywas retoldas theclaimthatGore“invented the Internet.”That’showthe Internet journalistDeclanMcCullaghrepeated it twoweeks later:“[T]hevice president offered up a whopper of a tall tale in which he claimed to have invented the Internet.”That characterization—plainly false—stuck. Ina2003 studyof themedia’shandlingof the story,ChipHealthandJonathanBendor conclude,“Weshowthat the false versionof Gore’s statementdominated the true one in mainstream political discourse by a wide margin. This is a clear failure in the marketplace of ideas,which we document in detail.”31

The only redeeming part of this story is that it’s simple to document the falsity—because of the Internet. Seth Finkelstein, a programmer and anti- censorware activist,has created a page on the Internet collecting the original interview and the subsequent reports about it.32 His is the model of the very best the Internet could be.That virtue, however, didn’t carry too far beyond the Internet.

REGULATIONS OF SPEECH: SPAM AND PORN

For all our talk about loving free speech, most of us, deep down, wouldn’t mindabit of healthy speech regulation,at least in somecontexts.Orat least, moreof uswouldbeeager for speechregulation today thanwouldhavebeen in1996.This change isbecauseof twocategoriesof speech thathavebecome the bane of existence to many on the Net: spam and porn.

By“spam”Imeanunsolicitedcommerciale-mail sent inbulk.“Unsolicited,” inthesensethat there’snorelationshipbetweenthesenderandrecipient;“com- mercial” in a sense that excludes political e-mail; “e-mail” in the sense not restrictedtoe-mail,butthat includeseverymediumof interactionincyberspace (including blogs); and“bulk”meaning many (you pick the number) missives sentatonce.

By“porn,”Imeannotobscenity andnot childporn,butwhat theUnited States Supreme Court calls sexually explicit speech that is “harmful to minors.”33 This is the categoryof legallypermittederotic speech—foradults, at least,not for kids.Obscenity and child porn are permitted to no one.

These twotypesof speech—pornandspam—areverydifferent,but they are similar in the structure of regulation that each demands.Neither kind of

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speech should be banned by regulation: There are some who are happy to receive spam; thereare somewhoareconstitutionally entitled toaccessporn. But forbothkindsof speech, there is a classof individualswhowould like the power to block access to each: most of us with respect to spam; parents with respect toporn.This is adesire forakindof“speechregulation.”Thequestion is how,or whether, the law can support it.

I’mall for this formof speechregulation,properlyarchitected.“Buthow,” anti-regulation sorts might ask,“can you so easily embrace the idea of regu- lation? Have you forgotten the important values of free speech?”

But if the loversof this formof speechregulationhavebeenreadingcare- fully, they have a quick answer to this charge of censorship. It is clear, upon reflection,that in thesenseof Chapter7,spamandpornhavealwaysbeenreg- ulated in real space. The only question for cyberspace is whether the same effect of those real space regulations can be achieved in cyberspace.

Real-Space Regulations: Spam and Porn

Think first about spam in real space. In the sense of Chapter 7, spam, in real space, is regulated extensively. We can understand that regulation through the four modalities.

First law:Regulations against fraud and misrepresentation constrain the gamesbulkmailers canplay in real space.Contests areheavily regulated(just read the disclaimers on the Publishers’Clearing House Sweepstakes).

Second,normsregulatebulkmail in real space.There’s a senseof what is appropriate to advertise for; advertisement outside that range is almost self- defeating.

Third,markets regulatebulkmail in real space.Thecostof real spacemail is high, meaning the returns must be significant before it pays to send bulk mail.That radically reduces the rangeof bulkmail that gets sent in real space.

Andfinally,architecture regulatesbulkmail in real space.Wegetourmail justonceaday,and it’s fairly simple to segregatebulk fromreal. It’s also sim- ple todumpthebulkwithouteverevenopening it.Theburdensof real-space spam are thus not terribly great.

These factors together restrict the spread of spam in real space. There is less of it than the spammers would like, even if there is more than the rest of us like.These four constraints thus regulate what gets made.

A similar story can be told about porn. Pornography, in real space, is regulatedextensively—againnotobscenity

andnotchildporn,butwhat theSupremeCourt calls sexually explicit speech that is“harmful to minors.”Obscenity and child porn are regulated too,but

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their regulation isdifferent:Obscenityandchildpornarebanned forallpeo- ple in real space (United States); porn is banned only for children.

Wecanalsounderstandporn’s regulationbyconsidering the fourmodal- itiesof regulation.All four aredirected toa commonend: tokeeppornaway from kids while (sometimes) ensuring adults’access to it.

First, laws do this. Laws in many jurisdictions require that porn not be sold to kids.34 Since at least 1968,when the Supreme Court decided Ginsberg v. New York,35 suchregulationhasbeenconsistentlyupheld.States canrequire vendorsof porn tosell itonly toadults; theycanalsorequirevendors tocheck the ID of buyers.

Butnotonly lawschannel.Socialnormsdoaswell.Normsrestrict the sale of porngenerally—society for themostpart sneersat consumersof porn,and this sneer undoubtedly inhibits its sale. Norms also support the policy of keepingpornaway fromkids.Porndealers likelydon’t like to thinkof them- selves as people who corrupt. Selling porn to kids is universally seen as cor- rupting, and this is an important constraint on dealers, as on anyone else.

The market, too, keeps porn away from kids. Porn in real space costs money. Kids do not have much money. Because sellers discriminate on the basisof whocanpay, they thushelp todiscouragechildren frombuyingporn.

But then regulations of law, market, and norms all presuppose another regulation that makes the first three possible: the regulation of real-space architecture. Inreal space it ishard tohide thatyouareachild.Hecantry,but without any likely success. Thus, because a kid cannot hide his age, and because porn is largely sold face to face, the architectures of real space make it relatively cheap for laws and norms to be effective.

This constellationof regulations inreal spacehas theeffectof controlling, toan importantdegree, thedistributionof porn tokids.Theregulation isnot perfect—anychildwhoreallywants the stuff canget it—but regulationdoes notneed tobeperfect tobeeffective. It is enoughthat these regulationsmake porn generally unavailable.

Cyberspace Regulations: Spam and Porn

Spam and porn are regulated differently in cyberspace. That is, these same fourmodalities constrainorenable spamandporndifferently incyberspace.

Let’s begin with porn this time.The first difference is the market. In real space porn costs money,but in cyberspace it need not—at least not much. If you want to distribute one million pictures of “the girl next door” in real space, it is not unreasonable to say that distribution will cost close to$1mil- lion. In cyberspace distribution is practically free. So long as you have access

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tocyberspaceandascanner,youcanscanapictureof“thegirlnextdoor”and thendistribute thedigital imageacrossUSENETtomanymore thanonemil- lion people for just the cost of an Internet connection.

With the costs of production so low, a much greater supply of porn is produced for cyberspace than for real space.And indeed,awhole categoryof porn exists in cyberspace that doesn’t in real space—amateur porn, or porn produced for noncommercial purposes. That category of supply simply couldn’t survive in real space.

And then there is demand. Porn in cyberspace can be accessed—often and in many places—for free. Thousands of commercial sites make porn available for free, as a tease to draw in customers.Even more porn is distrib- uted in noncommercial contexts, such as USENET, or free porn websites. Again, this low price translates into much greater demand.

Much of this supply and demand is for a market that, at least in the UnitedStates, is constitutionallyprotected.Adultshaveaconstitutional right in the United States to access porn, in the sense that the government can do nothing that burdens (perhaps unreasonably burdens) access to porn. But there is another market for porn in the United States that is not constitu- tionally protected.Governments have the right in the United States to block access by kids to porn.

As we saw in the previous section, for that regulation to work, however, there needs to be a relatively simple way to know who is a kid. But as we’ve seen throughout this book, this is an architectural feature that cyberspace doesn’thave. It’snot thatkids incyberspacecaneasilyhide that theyarekids. In cyberspace, there is no fact to disguise.You enter without an identity and you identify only what you want—and even that can’t be authenticated with any real confidence. Thus, a kid in cyberspace need not disclose that he is a kid.Andthereforeheneednot suffer thediscriminationsapplied toachild in real space.Nooneneeds toknowthat Jon is Jonny; therefore, thearchitecture does not produce the minimal information necessary to make regulation work.

Theconsequence is that regulations that seekselectively toblockaccess to kids in cyberspace don’t work, and they don’t work for reasons that are very different from the reasons they might not work well in real space. In real space, no doubt, there are sellers who want to break the law or who are not typically motivated to obey it. But in cyberspace, even if the seller wants to obey the law, the law can’t be obeyed.The architecture of cyberspace doesn’t provide the tools to enable the law to be followed.

A similar story can be told about spam: Spam is an economic activity. People send it tomakemoney.The frictionsof real space significantly throttle

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that desire. The costs of sending spam in real space mean that only projects expecting a significant return get sent.As I said, even then, laws and norms add another layer of restriction.But the most significant constraint is cost.

But theefficiencyof communication incyberspacemeans that thecostof sending spam is radically cheaper, which radically increases the quantity of spamthat it is rational to send.Even if youmakeonlya .01%profit, if thecost of sending the spam is close to zero, you still make money.

Thus, aswith porn,a different architectural constraint means a radically different regulationof behavior.Bothpornandspamarereasonably regulated in real space; in cyberspace, this difference in architecture means neither is effectively regulated at all.

Andthus thequestion thatbegan this section: Is thereaway to“regulate” spam and porn to at least the same level of regulation that both face in real space?

Regulating Net-Porn

Of all the possible speech regulations on the Net (putting copyright to one side for themoment), theUnitedStatesCongresshasbeenmost eager to reg- ulateporn.That eagerness,however,hasnotyet translated into success.Con- gress has passed two pieces of major legislation. The first was struck down completely.Thesecondcontinues tobebattereddownin its struggle through the courts.

The first statute was the product of a scare. Just about the time the Net wascoming into thepopular consciousness,aparticularly seedyaspectof the Net came into view first. This was porn on the Net. This concern became widespread in the United States early in 1995.36 Its source was an extraordi- nary rise in the number of ordinary users of the Net, and therefore a rise in use by kids and an even more extraordinary rise in the availability of what many call porn on the Net. An extremely controversial (and deeply flawed) study published in the Georgetown University Law Review reported that the Netwas awash inporn.37 Time rana cover story about its availability.38 Sena- tors and congressmen were bombarded with demands to do something to regulate“cybersmut.”

Congress responded in 1996 with the Communications Decency Act (CDA).A lawof extraordinary stupidity, theCDApractically impaled itself on theFirstAmendment.The lawmade it a felony to transmit“indecent”mate- rial on theNet toaminoror toaplacewhereaminorcouldobserve it.But it gave speakers on the Net a defense—if they took good-faith, “reasonable, effective”steps to screen out children, then they could speak“indecently.”39

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There were at least three problems with the CDA, any one of which should have doomed it to well-deserved extinction.40 The first was the scope of the speech it addressed:“Indecency”is not a category of speech that Con- gress has the power to regulate (at least not outside the context of broad- casting.)41 As I have already described, Congress can regulate speech that is “harmful tominors,”or Ginsberg speech,but that isverydifferent fromspeech called“indecent.”Thus, the first strike against the statute was that it reached too far.

Strike two was vagueness. The form of the allowable defenses was clear: So longas therewas anarchitecture for screeningoutkids, the speechwould be permitted.But the architectures that existed at the time for screening out children were relatively crude, and in some cases quite expensive. It was unclearwhether, to satisfy thestatute, theyhadtobeextremelyeffectiveor just reasonably effective given the state of the technology. If the former, then the defenses were no defense at all, because an extremely effective block was extremely expensive; the cost of a reasonably effective block would not have been so high.

Strike three was the government’s own doing. In arguing its case before the Supreme Court in 1997, the government did little either to narrow the scopeof the speechbeing regulatedor toexpand the scopeof thedefenses. It stuck with the hopelessly vague,overbroad definition Congress had given it, and it displayed a poor understanding of how the technology might have provided a defense.As the Court considered the case, there seemed to be no way thatan identificationsystemcouldsatisfy the statutewithoutcreatingan undue burden on Internet speakers.

Congress respondedquicklybypassinga secondstatuteaimedatprotect- ing kids from porn. This was the Child Online Protection Act (COPA) of 1998.42 This statute was better tailored to the constitutional requirements. It aimedat regulatingspeech thatwasharmful tominors. It allowedcommercial websites toprovidesuchspeechso longas thewebsiteverified theviewer’sage. Yet in June 2003, the Supreme Court enjoined enforcement of the statute.43

Both statutes respond to a legitimate and important concern. Parents certainly have the right to protect their kids from this form of speech, and it is perfectly understandable that Congress would want to help parents secure this protection.

ButbothstatutesbyCongressareunconstitutional—not,as somesuggest, because there is no way that Congress could help parents. Instead both are unconstitutional because the particular way that Congress has tried to help parentsputsmoreof aburdenon legitimate speech(foradults that is) than is necessary.

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In my view,however, there is a perfectly constitutional statute that Con- gress couldpass thatwouldhavean important effectonprotectingkids from porn.

To see what that statute looks like, we need to step back a bit from the CDA and COPA to identify what the legitimate objectives of this speech reg- ulation would be.

Ginsberg44 established that there is a class of speech that adults have a right to but that children do not. States can regulate that class to ensure that such speech is channeled to the proper user and blocked from the improper user.

Conceptually, for such a regulation can work, two questions must be answered:

1. Is the speaker uttering “regulable” speech—meaning speech “harmful to

minors”?

2. Is the listener entitled to consume this speech—meaning is he a minor?

And with the answers to these questions, the logic of this regulation is:

(speech == regulable)

AND

(listener == minor)

THEN

block access.

Nowbetweenthe listenerandthespeaker,clearly the speaker is inabetter position toanswerquestion#1.The listenercan’tknowwhether the speech is harmful tominorsuntil the listener encounters the speech. If the listener is a minor, then it is too late.Andbetween the listenerandthe speaker,clearly the listener is in a better position to answer question #2. On the Internet espe- cially, it is extremely burdensome for the speaker to certify the age of the lis- tener. It is the listener who knows his age most cheaply.

The CDA and COPA placed the burden of answering question #1 on the speaker, and #2 on both the speaker and the listener.A speaker had to deter- mine whether his speech was regulable, and a speaker and a listener had to cooperate toverify theageof the listener. If the speakerdidn’t,andthe listener was a minor, then the speaker was guilty of a felony.

Real-space lawalsoassigns theburdeninexactly thesameway.If youwant to sell porn in New York, you both need to determine whether the content

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you’re selling is“harmful to minors,”and you need to determine whether the personyou’re selling to isaminor.But real space is importantlydifferent from cyberspace,at least in thehighcostof answeringquestion#2: Inreal space, the answer is almost automatic (again, it’s hard for a kid to hide that he’s a kid). Andwhere theanswer isnotautomatic, there’sacheapsystemof identification (a driver’s license, for example).But in cyberspace, any mandatory system of identification constitutes a burden both for the speaker and the listener.Even underCOPA,aspeakerhas tobear theburdenof acredit cardsystem,andthe listener has to trust a pornographer with his credit card just to get access to constitutionallyprotected speech.

There’s another featureof theCDA/COPAlaws that seemsnecessarybut isn’t:Theybothplace theburdenof their regulationuponeveryone, including thosewhohaveaconstitutional right to listen.Theyrequire, that is,everyone to show an ID when it is only kids who can constitutionally be blocked.

Socompare then theburdensof theCDA/COPAtoadifferent regulatory scheme: one that placed the burden of question #1 (whether the content is harmful to minors) on the speaker and placed the burden of question #2 (whether the listener is a minor) on the listener.

One version of this scheme is simple,obviously ineffective and unfair to the speaker:A requirement that a website blocks access with a page that says “Thecontentonthispage isharmful tominors.Clickhere if youareaminor.” This schemeplaces theburdenof age identificationonthekid.Butobviously, it would have zero effect in actually blocking a kid.And, less obviously, this scheme would be unfair to speakers. A speaker may well have content that constitutes material “harmful to minors,”but not everyone who offers such material shouldbe labeledapornographer.This transparentblock is stigma- tizing to some, and if a less burdensome system were possible, that stigma should also render regulation supporting this unconstitutional.

So what’s an alternative for this scheme that might actually work? I’mgoing todemonstrate sucha systemwithaparticular example.Once

you see the example, the general point will be easier to see as well. Everyone knows the Apple Macintosh. It, like every modern operating

system, now allows users to specify“accounts”on a particular machine. I’ve set one up for my son, Willem (he’s only three, but I want to be prepared). When I set up Willem’s account, I set it up with “parental controls.” That means Iget to specifypreciselywhatprogramshegets touse,andwhataccess hehas to the Internet.The“parental controls”make it (effectively) impossible to change these specifications.You need the administrator’s password to do that, and if that’s kept secret, then the universe the kid gets to through the computer is the universe defined by the access the parent selects.

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Imagineoneof theprogramsIcouldselectwasabrowserwitha function we could call “kids-mode-browsing” (KMB). That browser would be pro- grammedtowatchonanywebpage foraparticularmark.Let’s call thatmark the“harmful tominors”mark,or<H2M>for short.Thatmark,or in the lan- guageof theWeb,tag,wouldbracketanycontent the speakerbelieves isharm- ful to minors, and the KMB browser would then not display any content bracketedwith this<H2M>tag.So, forexample,awebpagemarkedup“Blah blahblah<H2M>block this</H2M>blahblahblah”wouldappearonaKMB screen as:“Blah blah blah blah blah blah.”

So, if the world of the World Wide Web was marked with <H2M> tags, and if browsermanufacturersbuilt this<H2M>-filtering function into their browsers, then parents would be able to configure their machines so their kidsdidn’t get access toanycontentmarked<H2M>.Thepolicyobjectiveof enablingparental controlwouldbeachievedwithaminimalburdenoncon- stitutionally entitled speakers.

How can we get (much of the) world of the Web to mark its harmful to minors content with <H2M> tags?

This is the role forgovernment.Unlike theCDAorCOPA,the regulation required tomake this systemwork—to theextent itworks,andmoreon that below—is simply that speakers mark their content. Speakers would not be required toblockaccess; speakerswouldnotbe required toverify age.All the speakerwouldbe required todo is to tag contentdeemedharmful tominors with the proper tag.

This tag, moreover, would not be a public marking that a website was a pornsite.Thisproposal isnot like the(idiotic, imho)proposals thatwecreate a .sexor .xxxdomain for the Internet.People shouldn’thave to locate toared- lightdistrict just tohaveadultmaterialon their site.The<H2M>tag instead would be hidden from the ordinary user—unless that user looks for it, or wants to block that content him or herself.

Once thegovernmentenacts this law,thenbrowsermanufacturerswould have an incentive to build this (very simple) filtering technology into their browsers. Indeed, given the open-source Mozilla browser technology—to which anyone could add anything they wanted—the costs of building this modified browser are extremely low. And once the government enacts this law,andbrowsermanufacturersbuildabrowser that recognizes this tag, then parents have would have as strong a reason to adopt platforms that enable them to control where their kids go on the Internet.

Thus, in this solution,theLAWcreatesan incentive (throughpenalties for noncompliance) for sites with“harmful to minors”material to change their ARCHITECTURE (by adding <H2M> tags) which creates a MARKET for

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browser manufacturers (new markets) to add filtering to their code, so that parents canprotect their kids.Theonlyburdencreatedby this solution is on the speaker; this solution does not burden the rightful consumer of porn at all. To that consumer, there is no change in the way the Web is experienced, because without a browser that looks for the <H2M> tag, the tag is invisible to the consumer.

But isn’t that burden on the speaker unconstitutional? It’shard to seewhy it wouldbe, if it is constitutional inreal space to tell a speakerhemust filterkids from his content “harmful to minors.” No doubt there’s a burden. But the question isn’twhether there’saburden.Theconstitutionalquestion iswhether there is a lessburdensomeway toachieve this important state interest.

But what about foreign sites? Americans can’t regulate what happens in Russia.Actually, that’s less true thanyouthink.Aswe’ll see in thenextchapter, there’smuch that theU.S.government can doanddoes to effectively control what other countries do.

Still, you might worry that sites in other countries won’t obey American lawbecause it’snot likelywe’ll sendintheMarines to takeoutanoncomplying website.That’scertainly true.But to theextent thataparent isconcernedabout this, as I already described, there is a market already to enable geographic fil- teringof content.Thesamebrowser that filterson<H2M>could inprinciple subscribe toan IPmapping service to enable access toAmerican sitesonly.

But won’t kids get around this restriction? Sure,of course somewill.But the measureof success for legislation(asopposed tomissile tracking software) is not100percent.Thequestion the legislatureasks iswhether the lawwillmake thingsbetteroff.45 To substantiallyblockaccess to<H2M>contentwouldbe a significant improvement, and that would be enough to make the law make sense.

But why not simply rely upon filters that parents and libraries install on their computers? Voluntary filters don’t require any new laws, and they therefore don’t require any state-sponsored censorship to achieve their ends.

It is thisviewthat Iwant toworkhardest todislodge,becausebuiltwithin it are all the mistakes that a pre-cyberlaw understanding brings to the ques- tion of regulation in cyberspace.

First, consider the word “censorship.”What this regulation would do is give parents the opportunity to exercise an important choice. Enabling par- ents todothishasbeendeemedacompellingstate interest.Thekidswhocan’t get access to this contentbecause theirparents exercised this choicemightcall it “censorship,”but that isn’t a very useful application of the term. If there is a legitimate reason to block this form of access, that’s speech regulation. There’s no reason to call it names.

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Second,consider thepreference for“voluntary filters.”If voluntary filters were to achieve the very same end (blocking H2M speech and only H2M speech), I’d be all for them. But they don’t. As the ACLU quite powerfully described(shortlyafterwinning thecase that struckdowntheCDApartlyon thegrounds thatprivate filterswerea less restrictivemeans thangovernment regulation):

The ashes of the CDA were barely smoldering when the White House called a

summit meeting to encourage Internet users to self-rate their speech and to

urge industry leaders todevelopanddeploy the tools forblocking“inappropri-

ate speech.”Themeetingwas“voluntary,”of course: theWhiteHouseclaimed it

wasn’t holding anyone’s feet to the fire. [But] the ACLU and others . . . were

genuinelyalarmedby the tenorof theWhiteHouse summitand theunabashed

enthusiasm for technological fixes that will make it easier to block or render

invisible controversial speech. . . . [I]t was not any one proposal or announce-

ment that causedouralarm;rather, itwas the failure toexamine the longer-term

implications for the Internet of rating and blocking schemes.46

The ACLU’s concern is the obvious one: The filters that the market has created not only filter much more broadly than the legitimate interest the state has here—blocking <H2M> speech—they also do so in a totally non- transparentway.Therehavebeenmanyhorror storiesof sitesbeing included in filters forall thewrongreasons(including for simplycriticizing the filter).47

Andwhenyouarewrongfullyblockedbya filter, there’snotmuchyoucando. The filter is just a particularly effective recommendation list. You can’t sue Zagat’s just because they steer customers to your competitors.

My point is not that we should ban filters, or that parents shouldn’t be allowedtoblockmore thanH2Mspeech.Mypoint is that if werelyuponpri- vate action alone,more speech will be blocked than if the government acted wisely and efficiently.

And that frames my final criticism: As I’ve argued from the start, our focus should be on the liberty to speak,not just on the government’s role in restricting speech.Thus,between two“solutions”toaparticular speechprob- lem, one that involves the government and suppresses speech narrowly, and one thatdoesn’t involve thegovernmentbut suppresses speechbroadly,con- stitutional values should tilt us to favor the former.FirstAmendmentvalues (even if not the FirstAmendment directly) should lead to favoring a speech regulation system that is thin and accountable, and in which the govern- ment’s actionor inaction leadsonly to the suppressionof speech thegovern- ment has a legitimate interest in suppressing. Or, put differently, the fact

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that the government is involved should not necessarily disqualify a solution as a proper, rights-protective solution.

Theprivate filters themarkethasproducedso fararebothexpensiveand over-inclusive.They block content that is beyond the state’s interest in regu- latingspeech.Theyareeffectively subsidizedbecause there isno less restrictive alternative.

Publicly required filters (which are what the <H2M> tag effectively enables) are narrowly targeted on the legitimate state interest.And if there is a dispute about that tag—if for example, a prosecutor says a website with information about breast cancer must tag the information with an <H2M> tag—thenthewebsiteat leasthas theopportunity to fight that. If that filtering were in private software, there would be no opportunity to fight it through legalmeans.All that free speechactivists could thendo iswritepowerful,but largely invisible, articles like theACLU’s famous plea.

It has taken key civil rights organizations too long to recognize this pri- vate threat to free-speech values. The tradition of civil rights is focused directlyongovernmentactionalone. Iwouldbe the last to say that there’snot great danger from government misbehavior. But there is also danger to free speech from private misbehavior. An obsessive refusal to even consider the one threat against the other does not serve the values promoted by the First Amendment.

But then what about public filtering technologies, like PICS? Wouldn’t PICS be a solution that avoided the “secret list problem” you identified?

PICS is an acronym for theWorldWideWeb Consortium’s Platform for Internet Content Selection.We have already seen a relative (actually, a child) of PICS in the chapter about privacy: P3P.Like PICS, is a protocol for rating and filtering content on the Net. In the context of privacy, the content was made up of assertions about privacy practices, and the regime was designed to help individuals negotiate those practices.

Withonline speech the idea ismuch the same.PICSdivides theproblem of filtering into twoparts—labeling(ratingcontent)andthenfiltering(block- ing content on the basis of the rating). The idea was that software authors would compete to write software that could filter according to the ratings; content providers and rating organizations would compete to rate content. Userswould thenpick their filteringsoftwareandratingsystem.If youwanted the ratingsof theChristianRight, for example,youcould select its rating sys- tem; if I wanted the ratings of theAtheist Left, I could select that.By picking our raters,we would pick the content we wanted the software to filter.

This regime requires a few assumptions. First, software manufacturers wouldhave towrite thecodenecessary to filter thematerial. (Thishasalready

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been done in some major browsers). Second, rating organizations would activelyhave to rate theNet.This,of course,wouldbenosimple task;organ- izationshavenot risen to thechallengeof billionsof webpages.Third,organ- izations that rated theNet inaway thatallowed fora simple translation from one rating systemtoanotherwouldhave a competitive advantageoverother raters.Theycould, for example, sell a rating systemto thegovernmentof Tai- wanandtheneasilydevelopa slightlydifferent rating systemfor the“govern- ment” of IBM.

If all threeassumptionsheld true,anynumberof ratingscouldbeapplied to theNet.Asenvisionedby its authors,PICSwouldbeneutral amongratings and neutral among filters; the system would simply provide a language with which content on the Net could be rated, and with which decisions about how to use that rated material could be made from machine to machine.48

Neutrality sounds likeagoodthing.It sounds likean idea thatpolicymak- ers should embrace.Your speech is not my speech; we are both free to speak and listenaswewant.Weshouldestablish regimes thatprotect that freedom, and PICS seems to be just such a regime.

But PICScontainsmore“neutrality”than wemight like.PICS isnot just horizontally neutral—allowing individuals to choose from a range of rating systems theoneheor shewants;PICS is alsoverticallyneutral—allowing the filter tobe imposedat any level in thedistributional chain.Mostpeoplewho first endorsed thesystemimaginedthePICSfilter sittingonauser’s computer, filteringaccording to thedesiresof that individual.Butnothing in thedesign of PICS prevents organizations that provide access to the Net from filtering content as well. Filtering can occur at any level in the distributional chain— theuser, thecompanythroughwhich theusergainsaccess, the ISP,oreventhe jurisdictionwithinwhich theuser lives.Nothing in thedesignof PICS,that is, requires that such filters announce themselves. Filtering in an architecture likePICScanbe invisible. Indeed, in someof its implementations invisibility is part of its design.49

This should set off alarms for those keen to protect First Amendment values—even though the protocol is totally private. As a (perhaps) unin- tendedconsequence, thePICSregimenotonlyenablesnontransparent filter- ing but, by producing a market in filtering technology, engenders filters for muchmore than Ginsberg speech.That,of course,was theACLU’s legitimate complaintagainst theoriginalCDA.Buthere themarket,whose tastesare the tastes of the community, facilitates the filtering. Built into the filter are the normsof acommunity,whicharebroader than thenarrowfilterof Ginsberg. The filtering system can expand as broadly as the users want, or as far upstream as sources want.

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The H2M+KMB solution alternative is much narrower. It enables a kind of private zoning of speech. But there would be no incentive for speakers to blockout listeners; the incentiveof a speaker is tohavemore,not fewer, listen- ers.Theonlyrequirements to filterout listenerswouldbe those thatmaycon- stitutionallybe imposed—Ginsberg speechrequirements.Since theywouldbe imposedby thestate, these requirementscouldbe testedagainst theConstitu- tion, and if the statewere found tohave reached too far, it couldbe checked.

Thedifferencebetweenthese twosolutions, then, is in thegeneralizability of the regimes.The filteringregimewouldestablishanarchitecture that could beused to filter anykindof speech,and thedesires for filtering thencouldbe expected to reach beyond a constitutional minimum; the zoning regime would establish an architecture for blocking that would not have this more general purpose.

Which regime should we prefer? Notice the values implicit in each regime. Both are general solutions to

particular problems. The filtering regime does not limit itself to Ginsberg speech; it canbeused to rate,and filter,any Internet content.And thezoning regime, in principle, is not limited to zoning only for Ginsberg speech. The <H2M>kids-IDzoningsolutioncouldbeusedtoadvanceotherchildprotec- tive schemes.Thus,bothhaveapplications farbeyondthespecificsof pornon the Net.

At least in principle. We should be asking, however, what incentives are there toextendthe solutionbeyondtheproblem.Andwhat resistance is there to such extensions?

Here we begin to see the important difference between the two regimes. When your access is blocked because of a certificate you are holding, you want to know why. When you are told you cannot enter a certain site, the claim toexclude is checkedat least by thepersonbeing excluded.Sometimes the exclusion is justified, but when it is not, it can be challenged. Zoning, then, builds into itself a system for its own limitation. A site cannot block someone from the site without that individual knowing it.50

Filtering is different. If you cannot see the content, you cannot know what is being blocked. Content could be filtered by a PICS filter somewhere upstream and you would not necessarily know this was happening.Nothing in thePICSdesignrequires truth inblocking in theway that thezoning solu- tion does.Thus,upstream filtering becomes easier, less transparent, and less costly with PICS.

This effect is evenclearer if we takeapart thecomponentsof the filtering process.Recall the twoelementsof filtering solutions—labelingcontent,and thenblockingbasedonthat labeling.Wemightwell argue that the labeling is

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the more dangerous of the two elements. If content is labeled, then it is pos- sible to monitor who gets what without even blocking access. That might well raisegreater concerns thanblocking,sinceblockingat leastputs theuser on notice.

These possibilities should trouble us only if we have reason to question the value of filtering generally, and upstream filtering in particular. I believe we do. But I must confess that my concern grows out of yet another latent ambiguity in our constitutional past.

There isundeniablevalue in filtering.Weall filteroutmuchmore thanwe process, and in general it is better if we can select our filters rather than have others select them for us. If I read the New York Times rather than the Wall Street Journal, I amselectinga filteraccording tomyunderstandingof theval- ues of both newspapers.Obviously, in any particular case, there cannot be a problem with this.

But there is also a value in confronting the unfiltered. We individually may want to avoid issues of poverty or of inequality, and so we might prefer to tune those facts out of our universe. But it would be terrible from the standpointof society if citizenscouldsimply tuneoutproblems thatwerenot theirs,because those samecitizenshave to select leaders tomanage thesevery problems.51

In real space we do not have to worry about this problem too much because filtering isusually imperfect.HowevermuchI’d like to ignorehome- lessness, I cannot go to my bank without confronting homeless people on thestreet;howevermuchI’d like to ignore inequality, I cannotdrive to theair- portwithoutpassing throughneighborhoods that remindmeof howunequal a nation the United States is. All sorts of issues I’d rather not think about force themselves on me.They demand my attention in real space, regardless of my filtering choices.

Of course, this is not true for everyone.Thevery rich cancut themselves off fromwhat theydonotwant to see.Thinkof thebutlerona19th-century English estate, answering the door and sending away those he thinks should not trouble his master. Those people lived perfectly filtered lives.And so do some today.

But most of us do not. We must confront the problems of others and think about issues that affect our society.This exposure makes us better citi- zens.52 We can better deliberate and vote on issues that affect others if we have some sense of the problems they face.

What happens, then, if the imperfections of filtering disappear? What happens if everyonecan, ineffect,haveabutler?Would suchaworldbecon- sistent with the values of the FirstAmendment?

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Somebelieve that itwouldnotbe.CassSunstein, forexample,hasargued quite forcefully that the framers embracedwhathecalls a“Madisonian”con- ception of the First Amendment.53 This Madisonian conception rejects the notion that themixof speechwesee shouldsolelybea functionof individual choice.54 It insists, Sunstein claims, on ensuring that we are exposed to the range of issues we need to understand if we are to function as citizens. It therefore would reject any architecture that makes consumer choice trump. Choice isnot abadcircumstance in theMadisonian scheme,but it is not the end of the matter. Ithiel de Sola Pool makes a very similar point:

What will it mean if audiences are increasingly fractionated into small groups

with special interests?Whatwill itmean if theagendaof national fadsandcon-

cerns is no longer effectively set by a few mass media to which everyone is

exposed? Such a trend raises for society the reverse problems from those posed

by mass conformism. The cohesion and effective functioning of a democratic

societydependsuponsomesortof public agora inwhicheveryoneparticipates

and where all deal with a common agenda of problems, however much they

may argue over the solutions.55

On the other side are scholars such as Geoffrey Stone,who insists just as strongly thatno suchpaternalistic ideal is foundanywhere in the conception of free speechembracedbyour framers.56 Theamendment,he says, ismerely concernedwithbanningstatecontrolof privatechoice.Sinceenablingprivate choice is no problem under this regime,neither is perfect filtering.

This conflict amongbrilliantUniversityof Chicago lawprofessors reveals another latentambiguity,and,aswithother suchambiguity, Idonot thinkwe get farbyappealing toMadison.TouseSunsteinagainstSunstein, the framers’ First Amendment was an incompletely theorized agreement, and it is better simply toconfess that itdidnotcover thecaseof perfect filtering.The framers couldn’t imagine a PICS-enabled world; they certainly didn’t agree upon the scope of the First Amendment in such a world. If we are to support one regime over another, we must do so by asserting the values we want to embrace rather than claiming they have already been embraced.

Sowhatvalues shouldwechoose? Inmyview,weshouldnotopt forper- fect filtering.57 We should not design for the most efficient system of censor- ing—orat least,we shouldnotdo this inaway that allows invisibleupstream filtering.Norshouldweopt forperfect filteringso longas the tendencyworld- wide is to overfilter speech. If there is speech the government has an interest in controlling, then let that control be obvious to the users. A political response is possible only when regulation is transparent.

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Thus,my vote is for the regime that is least transformative of important public values. A zoning regime that enables children to self-identify is less transformative than a filtering regime that in effect requires all speech to be labeled.A zoning regime is not only less transformative but less enabling (of other regulation)—it requires the smallest change to theexistingarchitecture of the Net and does not easily generalize to a far more significant regulation.

Iwouldopt for a zoning regimeeven if it requireda lawand the filtering solutionrequiredonlyprivatechoice. If the state ispushing forachange in the mix of law and architecture, I do not care that it is pushing with law in one contextandwithnorms in theother.Frommyperspective, thequestion is the result, not the means—does the regime produced by these changes protect free speech values?

Others areobsessedwith thisdistinctionbetween lawandprivateaction. They view regulation by the state as universally suspect and regulation by private actors as beyond the scope of constitutional review. And, to their credit,most constitutional law is on their side.

But as I’ve hinted before, and defend more below, I do not think we should get caught up in the lines that lawyers draw.Our question should be the values we want cyberspace to protect.The lawyers will figure out how.

The annoying skeptic who keeps noting my“inconsistencies”will like to pester me again at this point. In the last chapter, I embraced an architecture for privacy that is in essence the architecture of PICS. P3P, like PICS, would enablemachine-to-machinenegotiationaboutcontent.Thecontentof P3P is rules about privacy practices, and with PICS it is rules about content. But how, the skeptic asks, can I oppose one yet favor the other?

Theanswer is the sameasbefore:Thevaluesof speecharedifferent from the values of privacy; the control we want to vest over speech is less than the control we want to vest over privacy. For the same reasons that we disable someof the controlover intellectualproperty,we shoulddisable someof the control over speech. A little bit of messiness or friction in the context of speech is a value,not a cost.

Butare thesevaluesdifferent justbecause I say theyare?No.Theyareonly different if we say they are different. In real space we treat them as different. My core argument is that we choose how we want to treat them in cyber- space.

Regulating Spam

Spam is perhaps the most theorized problem on the Net.There are scores of books addressinghowbest todealwith theproblem.Manyof these are filled

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with ingenious technical ideas for ferretingout spam,fromadvancedBayesian filter techniques to massive redesigns of the e-mail system.

But what is most astonishing to me as a lawyer (and depressing to me as theauthorof Code) is thatpractically allof theseworks ignoreone important tool with which the problem of spam could be addressed: the law. It’s not that theyweigh thevalueof the lawrelative to, forexample,Bayesian filtersor the latest in heuristic techniques, and conclude it is less valuable than these other techniques. It’s that they presume the value of the law is zero—as if spam were a kindof bird fluwhich lived its own life totally independently of what humans might want or think.

This is an extraordinaryomission inwhat is, in effect, a regulatory strat- egy.As I have argued throughout this book, the key to good policy in cyber- space is a proper mix of modalities, not a single silver bullet. The idea that code alone could fix the problem of spam is silly—code can always be coded around, and, unless the circumventers are not otherwise incentivized, they will code around it.The law is a tool to change incentives, and it should be a tool used here as well.

Most think the lawcan’tplayaroleherebecause they thinkspammerswill bebetteratevadingthe lawthantheyareatevadingspamfilters.But this think- ing ignores one important fact about spam.“Spam”is not a virus.Or at least, whentalkingabout“spam,”I’mnot talkingaboutviruses.Mytarget inthispart is communication that aims at inducing a commercial transaction. Many of these transactions are ridiculous—drugs to stop aging, or instant weight loss pills. Some of these transactions are quite legitimate—special sales of over- stockedproducts,or invitations toapply forcredit cards.Butallof these trans- actionsaimintheendtoget somethingfromyou:Money.Andcrucially, if they aimtogetmoneyfromyou,thentheremustbesomeonetowhomyouaregiv- ingyourmoney.That someoneshouldbe the targetof regulation.

So what should that regulation be? The aim here, as with porn, should be to regulate to the end of assuring

whatwecouldcall“consensual communication.”That is, theonlypurposeof the regulationshouldbe toblocknonconsensual communication,andenable consensual communication. I don’t believe that purpose is valid in every speech context. But in this context—private e-mail, or blogs, with limited bandwidth resources,with the costs of the speech born by the listener—it is completelyappropriate to regulate toenable individuals toblockcommercial communications that they don’t want to receive.

So how could that be done? Today, theonlymodality thathas anymeaningful effectupon the supply

of spam is code. Technologists have demonstrated extraordinary talent in

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devising techniques to block spam. These techniques are of two sorts—one which is triggered by the content of the message, and one which is triggered by the behavior of the sender.

The technique that is focused upon content is an array of filtering tech- nologies designed to figure out what the meaning of the message is. As Jonathan Zdziarski describes, these techniques have improved dramatically. While earlyheuristic filtering techniqueshaderror rates around1 in10,cur- rent Bayesian techniques promise up to 99.5%–99.95% accuracy.58

But the single most important problem with these techniques is the arms race that they produce.59 Spammers have access to the same filters that network administrators use to block spam—at least if the filters are heuristic.60 They can therefore play with the message content until it can defeat the filter.That then requires filter writers to change the filters. Some do it well; some don’t.The consequence is that the filters are often over and under inclusive—blocking much more than they should or not blocking enough.

Thesecondcode-based technique forblocking spamfocusesuponthee- mail practices of the sender—meaning not the person sending the e-mail, but the“server”that is forwarding themessage to the recipient.A largenum- berof networkvigilantes—bywhich Imeanpeopleacting for thegood in the worldwithout legal regulation—haveestablished listsof goodandbade-mail servers.Theseblacklists are compiledby examining the apparent rules the e- mail server uses in deciding whether to send e-mail.Those servers that don’t obey the vigilante’s rules end up on a blacklist, and people subscribing to these blacklists then block any e-mail from those servers.

This systemwouldbe fantastic if therewereagreementabouthowbest to avoid “misuse” of servers. But there isn’t any such agreement. There are instead good faith differences among good people about how best to control spam.61 These differences,however, get quashed by the power of the boycott. Indeed, inanetwork,aboycott is especiallypowerful. If 5outof 100recipients of youre-mail can’t receive itbecauseof therulesyournetworkadministrator adopts foryoure-mail server,youcanbesure theserver’s rules—however sen- sible—will be changed. And often, there’s no appeal of the decision to be includedonablacklist.Like theprivate filtering technologies forporn, there’s no likely legal remedy forwrongful inclusiononablacklist.Somany typesof e-mail services can’t effectively function because they don’t obey the rules of the blacklists.

Now if either or both of these techniques were actually working to stop spam,Iwouldaccept them.I’mparticularly troubledbytheprocess-lessblock- ingofblacklists,andIhavepersonally sufferedsignificantembarrassmentand

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costswhene-mail thatwasn’t spamwas treatedas spam.Yet these costsmight beacceptable if the system ingeneralworked.

But itdoesn’t.Thequantityof spamcontinues to increase.TheRaducatu Group “predicts that by 2007, 70% of all e-mail will be spam.”62 And while there is evidence that the rate of growth in spam is slowing, there’s no good evidence the pollution of spam is abating.63 The only federal legislative response, theCAN-SPAMAct,whilepreemptingmany innovative state solu- tions, is not having any significant effect.64

Not only are these techniques not blocking spam, they are also blocking legitimate bulk e-mail that isn’t—at least from my perspective65—spam. The most important example ispolitical e-mail.Onegreatvirtueof e-mailwas that it would lower the costs of social and political communication. That in turn wouldwidentheopportunity forpolitical speech.Butspam-blockingtechnolo- gieshavenowemergedasa taxonthese important formsof social speech.They haveeffectively removedasignificantpromise the Internetoriginallyoffered.

Thus,bothbecause regulation throughcodealonehas failed,andbecause it is actually doing harm to at least one important value that the network originally served, we should consider alternatives to code regulation alone. And,once again, the question is,what mix of modalities would best achieve the legitimate regulatory end?

Beginwith theproblem:Why is spamsodifficult tomanage?The simple reason is that it comes unlabeled.There’s no simple way to know that the e- mail you’ve received is spam without opening the e-mail.

That’snoaccident.Spammersknowthat if youknewane-mailwas spam, youwouldn’topen it.So theydoeverythingpossible tomakeyouthink thee- mail you’re receiving is not spam.

Imagine foramoment thatwecould fix thisproblem.Imaginea lawthat required spam to be labeled, and imagine that law worked. I know this is extremely difficult to imagine,but bear with me for a moment.What would happen if every spam e-mail came with a specified label in its subject line— something like [ADV] in the subject line.66

Well, we know what would happen initially. Everyone (or most of us) wouldeither tell oure-mail clientoraskoure-mail service toblockall e-mail with [ADV] in the subject line. It would be glorious moment in e-mail his- tory, a return to the days before spam.

But the ultimate results of a regulation are not always its initial results. And it’squiteclearwith this sortof regulation, initial resultswouldbe tempo- rary. If there’s value inunsolicitedmissives toe-mail inboxes, then this initial blockwouldbean incentive to finddifferentways intoan inbox.Andwecan imagine any number of different ways:

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1.Senderscouldget recipients toopt-intoreceivingsuche-mail.Theopt-inwould

change the e-mail from unsolicited to solicited. It would no longer be spam.

2.Senders couldaddother tags to the subject line.Forexample, if this spamwere

travel spam, the tags could be [ADV][Travel]. Then recipients could modify

their filter to block allADV traffic except Travel e-mails.

3. Senders could begin to pay recipients for receiving e-mails.As some have pro-

posed, the e-mail couldcomewithanattachmentworthapenny,or something

more.Recipients could select to block allADVs except those carrying cash.

The key to each of these modified results is that the recipient is now receiving commercial e-mail by choice,not by trick.This evolution from the initial regulation thusencouragesmorecommunication,butonlybyencour- agingconsensual communication.Nonconsensual communication—assum- ing again the regulation was obeyed—would be (largely) eliminated.

So in one page, I’ve solved the problem of spam—assuming, that is, that the labeling rule is obeyed.But that, of course, is an impossible assumption. What spammerwouldcomplywith this regulation,given the initial effect is to radically shrink his market?

To answer this question, begin by returning to the obvious point about spam,as opposed to viruses or other malware.Spammers are in the business tomakemoney.Money-seekers turnout toberelatively easycreatures to reg- ulate. If the targetof regulation is in it for themoney, thenyoucancontrolhis behaviorbychanginghis incentives. If ignoringa regulationcostsmore than obeying it, then spammers (on balance) will obey it. Obeying it may mean changing spamming behavior, or it may mean getting a different job. Either way, change the economic incentives, and you change spamming behavior.

So how can you change the incentives of spammers through law? What reason is there to believe any spammer would pay attention to the law?

People ask that question because they realize quite reasonably that gov- ernmentsdon’t spendmuch timeprosecuting spammers.Governmentshave better things todo(or so they think).Soevena lawthat criminalized spamis not likely to scare many spammers.

But what we need here is the kind of creativity in the adaptation of the law that coders evince when they build fantastically sophisticated filters for spam. If law as applied by the government is not likely to change the incen- tivesof spammers,we should find lawthat is applied inaway that spammers would fear.

One such innovation would be a well-regulated bounty system. The law wouldrequirespamtobemarkedwitha label.That’s theonlyrequirement.But thepenalty fornotmarkingthespamwitha label iseitherstateprosecution,or

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prosecution through a bounty system. The FTC would set a number that it estimates would recruit a sufficient number of bounty hunters.Those bounty hunters would then be entitled to the bounty if they’re the first, or within the first five,to identifyaresponsiblepartyassociatedwithanoncomplyinge-mail.

But how would a bounty hunter do that?Well, the first thing the bounty hunterwoulddo isdeterminewhether theregulationhasbeencompliedwith. One part of that answer is simple; the other part, more complex.Whether a label is attached is simple.Whether thee-mail is commercial e-mailwill turn upon a more complex judgment.

Once the bounty hunter is convinced the regulation has been breached, heor shemust then identify a responsibleparty.Andthekeyhere is to follow an ideaSenator JohnMcCain introduced into theonly spamlegislationCon- gresshaspassed todate, theCAN-SPAMAct.That idea is toholdresponsible either the person sending the e-mail, or the entity for which the spam is an advertisement.

In99percentof thecases, itwill bealmost impossible to identify theper- son sending the spam.The techniques used by spammers to hide that infor- mation are extremely sophisticated.67

But theentity forwhich thespamisanadvertisement isadifferentmatter. Again, if the spam is going to work, there must be someone to whom I can givemymoney.If it is toodifficult togive someonemymoney, then the spam won’t return the money it needs to pay.

So how can I track the entity for which the spam is an advertisement? Here thecredit cardmarketwouldenter tohelp. Imagineacredit card—

call it the “bounty hunters’ credit card”—that when verified, was always declined.Butwhenthatcredit cardwasused,a special flagwasattachedto the transaction,andthecredit cardholderwouldgeta reportabout theentity that attempted thecharge.Thesolepurposeof this cardwouldbe to ferretoutand identify misbehavior.Credit card companies could charge something special for this card or charge for each use. They should certainly charge to make it worthwhile for them. But with these credit cards in hand, bounty hunters could produce useable records about to whom money was intended to be sent. And with that data, the bounty hunter could make his claim for the bounty.

But what’s to stop some malicious sort from setting someone else up? Let’s say Ihatemycompetitor,AjaxCleaners.So Ihirea spammer tosendout spamtoeveryone inCalifornia,promotingaspecialdeal atAjaxCleaners. I set up an account so Ajax received the money, and then I use my bounty credit card to nail Ajax. I show up at the FTC to collect my bounty; the FTC issues a substantial fine toAjax.Ajax goes out of business.

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This is a substantial concern with any bounty system. But it too can be dealtwith throughacareful reckoningof incentives.First, andobviously, the regulation should make such fraud punishable by death. (Ok,not death,but by a significant punishment). And second, any person or company charged with a violation of this spam statute could assert, under oath, that it did not hire or direct any entity to send spam on its behalf. If such an assertion is made, then thecompanywouldnotbe liable foranypenalty.But theassertion would include a very substantial penalty if it is proven false—a penalty that would include forfeiture of both personal and corporate assets. A company signing suchanoathoncewould likelybegiven thebenefit of thedoubt.But acompanyor individual signingsuchanoathmore thanoncewouldbea tar- get for investigation by the government.And by this stage, the exposure that the spammers would be facing would be enough to make spamming a busi- ness that no longer pays.

Hereagain, then, the solution isamixedmodality strategy.ALAWcreates the incentive for a certain change in the CODE of spam (it now comes labeled). That law is enforced through a complex set of MARKET and NORM-based incentives—both the incentive tobeabountyhunter,which is both financial andnormative (people really thinkspammersareactingbadly), aswell as the incentive toproducebounty credit cards. If done right, themix of thesemodalitieswouldchange the incentives spammers face.And, if done right, the change could be enough to drive most spammers into different businesses.

Of course there are limits to this strategy. Itwon’tworkwellwith foreign sites. Nor with spammers who have ideological (or pathological) interests. But these spammerscould thenbe the targetof thecode-basedsolutions that Idescribedat the start.Once thevastmajorityof commercially rational spam is eliminated, the outside cases can be dealt with more directly.

{TXB2} Thishasbeena longsection,but itmakesacouple importantpoints.The first is apoint aboutperspective: to saywhether a regulation“abridg[es] the free- dom of speech,or of the press”we need a baseline for comparison.The reg- ulations I describe in this section are designed to restore the effective regulationof real space. In that sense, inmyview,theydon’t“abridge”speech.

Second, these examples show how doing nothing can be worse for free- speechvalues thanregulating speech.Theconsequenceof no legal regulation to channel porn is an explosion of bad code regulation to deal with porn. The consequence of no effective legal regulation to deal with spam is an explosion of bad code that has broken e-mail.No law, in other words, some- timesproducesbadcode.PolkWagnermakes the samepoint:“[l]awandsoft-

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ware together define the regulatory condition. Less law does not necessarily meanmore freedom.”68 Ascodeand lawarebothregulators (even if different sorts of regulators) we should be avoiding bad regulation of whatever sort.

Third, theseexamples evince themixedmodality strategy that regulating cyberspace always is. There is no silver bullet—whether East Coast code or WestCoast code.There is insteadamixof techniques—modalities thatmust bebalanced toachieveaparticular regulatoryend.Thatmixmust reckon the interactionamongregulators.Thequestion,asPolkWagnerdescribes it, is for an equilibrium. But the law has an important role in tweaking that mix to assure the balance that advances a particular policy.

Here, by regulating smartly, we could avoid the destructive code-based regulation thatwould fill the regulatorygap.Thatwould, in turn,advance free speech interests.

THE REGULATIONS OF SPEECH: FREE CULTURE

The third context in which to consider the special relevance of cyberspace to free speech followsdirectly fromChapter 10.As Idescribe there, the interac- tionbetween thearchitectureof copyright lawand thearchitectureof digital networksproducesanexplosionof creativitywithin reachof copyrightnever contemplated by any legislature.

The elements in that change are simple. Copyright law regulates, at a minimum,“copies.”Digitalnetworks functionbymaking“copies”:There’sno way to use a work in a digital environment without making a copy. Thus, every single use of creative work in a digital environment triggers, in theory at least, copyright.

This is a radical change fromlife in real space. In real space, thereareany number of ways to“use”a creative work without triggering the law of copy- right.Whenyouretell a joke to friends, the lawof copyright isnot invoked— no“copy” is made, and to friends,no public performance occurs.When you loana friendyourbook, the lawof copyright isnot triggered.Whenyouread a book, the law of copyright would never take notice.Practically every single ordinary use of culture in real space is free of the regulation of copyright. Copyright targets abnormal uses—such as “publishing” or public perform- ances.

The gap between normal and abnormal uses began to close as the tech- nologies for“copying”weredemocratized.Xeroxcreated the firstblip; cassette taperecorderswereclosebehind.Buteven these technologieswere theexcep- tion, never the rule. They raised copyright questions, but they didn’t inject copyright into the center of ordinary life.

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Digital technologieshave.Asmoreandmoreof ordinary lifemovesonto the Internet,moreandmoreof ordinary life is subject tocopyright.The func- tional equivalent toactivities fromreal space thatwereessentiallyunregulated isnowsubject to copyright’s rule in cyberspace.Creativity activity thatnever needed to grapple with copyright regulation must now, to be legal, clear a whole host of hurdles, some of which, because of the insanely inefficient property system that copyright is, are technically impossible. A significant portionof creativeactivityhasnowmovedfromafreeculture toapermission culture. And the question for the values of free speech is whether that expanded regulation should be allowed to occur unchecked.

Again, Ihavemyown(overly strong)viewsabout thematter.69 I continue to be astonished that a Court so keen to avoid“rais[ing] the costs of being a producerof sexualmaterials troubling to themajority”70 is apparentlyobliv- ious to the way copyright law raises the costs of being a producer of creative and critical speech.

But for our purposes here, we should simply note once again a latent ambiguity in our constitutional tradition. As the Supreme Court has held, the First Amendment imposes important limitations on the scope of copy- right.Among those are at least the requirements that copyright not regulate “ideas,”and that copyright be subject to“fair use.”

But these“traditional FirstAmendment safeguards”were developed in a context inwhichcopyrightwas theexception,not the rule.Wedon’t yethave a tradition inwhichevery singleuseof creativework is subject tocopyright’s reach.Digital technologieshaveproduced thatworld.Butmostof the rest of the world has not yet woken up to it.

So what should First Amendment values be in this world? One view is that the First Amendment should have no role in this world—beyond the minimal protections of the “idea/expression” distinction and the require- mentof“fairuse.”In this view, the scopeof Congress’s regulationof creative activities is, subject to these minimal conditions, plenary. Any creative act reduced to a tangible form could be subject to the monopoly right of copy- right. And as every creative act in digital context is reduced to a tangible form, this view means that everything in the digital world could be made subject to copyright.

The opposite view rejects this unlimited scope for copyright. While the monopoly rightof copyrightmakes sense in certain commercial contexts,or more broadly, makes sense where it is necessary to “promote . . . progress,” there isno legitimate reasontoburdenthevastmajorityof creativeexpression with the burdens of copyright law. That a kid making a video book report needs toclearpermissionswith theauthorof thebook,or that friendsmaking

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amashupof a favoriteartist can’tdosounless the labelhasgranted themper- mission, extends the reach of copyright beyond any legitimate purpose.

But between these two views, it is plain that the Framers never made a choice. They were never confronted with the option that copyright could (efficiently) control every single use of a creative work.Any control possible in1790wouldhavebeenradically tooburdensome.Andwhile Ihavemybets about how they would vote, given their strong antipathy to monopolies and the very restrictive IP clause they enacted, that’s nothing more than a bet. If there’s a choice tobemadehere, it is a choice theydidn’tmake. It is insteada choice thatwemustmake:Whether thevaluesof free speechrestrict this rad- ical increase in the scope of copyright’s regulation.

THE REGULATORS OF SPEECH: DISTRIBUTION

So far my arguments about architecture have been about architectures in cyberspace. In this final story, Iblur theborders abit. Iwant touse thearchi- tecture of cyberspace to show something important about the regulation of broadcasting.

TheFederalCommunicationsCommission regulates speech. If Iwanted tobroadcast apolitical speechonFMradioata frequencyof 98.6MHzinSan Francisco, the FCC would have me prosecuted.71 To speak on 98.6 in San Francisco, I need a license, because to speak using these radio frequencies withouta license is a crime.It is a crimedespite the fact that theConstitution says,“Congress shall make no law . . . abridging the freedom of speech,or of the press.”What gives?

Theanswer restsonadeeplyheldassumptionat thecoreof our jurispru- dence governing broadcasting technologies: Only a fixed amount of “spec- trum”isavailable forbroadcasting,andtheonlyway to facilitatebroadcasting using that spectrum is to allocate slices of it to users, who are then the ones entitled to use their allocated spectrum within a particular geographical region.Without allocation, there would be chaos, the assumption goes.And chaos would kill broadcasting.

This view first came on the constitutional scene after Congress passed theRadioActof 1927.72 In1926Secretaryof CommerceHerbertHoovergave up the practice of controlling broadcasting after a number of circuit courts held thathedidnothave thepower todo so. If hedidnothave thepower,he said, then the invisible hand would have to govern. But Hoover was no real friendof the invisiblehand.Hepredictedwhatwouldhappenwhenhewith- drew federal jurisdiction—chaos—and some suggest his aim was to help bringabout justwhathepredicted.Stationswouldoverrideother stations,he

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said;broadcastingwouldbeamess.When someconfusiondidarise,Hoover used this to justify new federal regulation. 73

Congress thenrode to therescuebyauthorizing theFCCtoregulate spec- trum in a massively invasive way. Only the licensed could speak; what they said would be controlled by their license; they had to speak in the public interest; theyhad toshare their resourcewith theiropponents. In short,Con- gress said,broadcastinghad toberegulated in the sameway theSovietUnion regulated wheat.74 We had no choice. As Justice Felix Frankfurter said in upholding the regime, such sovietism was compelled by the “nature” of radio.75

From the beginning,however, there have been skeptics of this view.Not skeptics about the idea that spectrummustbe regulated,but about theman- nerbywhich it is regulated. Is it reallynecessary tohaveacentral agencyallo- catewhat ineffect areproperty rights?As these skeptics argued, thecommon lawhaddone just finebefore the federal governmententered. It couldalsodo fine if the government simply made spectrum a kind of tradable property right.RonaldCoasewasmost famous forpushing fora regime inwhichspec- trumwasauctionedrather than licensed.76 AndCoase’s ideacaughton—fifty years later. In the United States, the FCC now auctions huge chunks of the broadcasting spectrum. Just this year, it is positioning itself to sell prime real estate spectrum—the part that used to broadcast UHF television.

Now under either scenario—either when the FCC allocates spectrum or when it allocatesproperty rights to spectrum—there is a role for thegovern- ment.That role ismost extensivewhentheFCCallocates spectrum:Thenthe FCCmustdecidewhoshouldgetwhat.Whenspectrumisproperty, theFCC need only enforce the boundaries that the property right establishes. It is, in away,a less troubling formof governmentaction thanthegovernmentdecid- ing who it likes best.

Both forms of government regulation, however, produce a “press” (at least thepress thatuses spectrum)that is verydifferent fromthe“press”at the founding. In 1791, the“press”was not the New York Times or the Wall Street Journal. Itwasnot comprisedof largeorganizationsof private interests,with millions of readers associated with each organization. Rather, the press was much like the Internet today.Thecostof aprintingpresswas low,the reader- ship was slight, the government subsidized its distribution, and anyone (within reason) could become a publisher.An extraordinary number did.77

Spectrumlicensesandspectrumproperty,however,produceaverydiffer- entmarket.Thecostof securingeitherbecomesabarrier toentry. Itwouldbe likea rule requiringa“newspaper license”inorder topublishanewspaper. If that license was expensive, then fewer could publish.78

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Of course,underourFirstAmendment itwouldbe impossible to imagine the government licensing newspapers (at least if that license was expensive andtargetedat thepress).That’sbecauseweallhavea strong intuition thatwe want competition to determine which newspapers can operate,not artificial governmentalbarriers.Andweall intuitivelyknowthat there’snoneed for the government to “rationalize” the newspaper market. People are capable of choosing among competing newspapers without any help from the govern- ment.

So what if the same were true about spectrum? Most of us haven’t any clueabouthowwhatwecall“spectrum”works.Theweird soundsandunsta- ble reception of our FM and AM radios make us think some kind of special magic happens between the station and receiver. Without that magic, radio waveswould“interfere”witheachother.Somespecial coordination is thought necessary toavoid such“collision”andthe inevitable chaos thatwouldresult. Radio waves, in this view, are delicate invisible airplanes,which need careful air traffic controllers to make sure disaster doesn’t strike.

But what most of us think we know about radio is wrong. Radio waves aren’tbutterflies.Theydon’tneed theprotectionof the federalbureaucrats to do theirwork.Andas technology that is totally familiar toeveryoneusing the Internet demonstrates, there is in fact very little reason for either spectrum- licenses or spectrum-property.The invisible hand,here, can do all the work.

To get a clue about how, consider two contexts, at least one of which everyone is familiar with. No doubt, radio waves are different from sound waves.But for our purposes here, the following analogy works.

Imagine you’re at a party. There are 50 people in the room, and each of them is talking. Each is therefore producing sound waves. But though these many speakers produce different sound waves,we don’t have any trouble lis- tening to thepersonspeakingnext tous.So longasnoonestarts shouting,we can manage to hear quite well. More generally, a party (at least early in the evening) is comprised of smart speakers and listeners who coordinate their speaking so that most everyone in the room can communicate without any real trouble.

Radios could function similarly—if the receiver and transmitter were analogously intelligent.Rather than the dumb receivers that ordinary FM or AM radio relies upon, smart radios could figure out what to listen to and communicatewith just aspeopleat aparty learn to focusontheconversation they’re having.

The best evidence of this is the second example I offer to dislodge the common understanding of how spectrum works. This example is called “WiFi.”WiFi is thepopularnameof aparticular setof protocols that together

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enablecomputers to“share”bandsof unlicensedspectrum.Themostpopular of these bands are in the 2.5 GHz and 5 GHz range. WiFi enables a large number of computers to use that spectrum to communicate.

Mostof thereadersof thisbookhavenodoubtcomeacrossWiFi technol- ogy. I see iteverydayI teach:aroomfullof students,eachwitha laptop,thevast majority on the Internet—doing who knows what.The protocols within each machineenable themall to“share”anarrowbandof spectrum.There isnogov- ernment or regulator that tells which machine when it can speak, any more than we need the government to make sure that people can communicate at cocktail parties.

These examples are of course small and limited. But there is literally a whole industry now devoted to spreading the lesson of this technology as broadly as possible. Some theorists believe the most efficient use of all spec- trumwouldbuilduponthesemodels—usingultra-wide-bandtechnologies to maximize thecapacityof radio spectrum.Buteven thosewhoare skepticalof spectrumutopiaarecoming tosee thatourassumptionsabouthowspectrum must be allocated are driven by ignorance about how spectrum actually works.

Theclearest exampleof this falseassumption is the setof intuitionswe’re likely to have about the necessary limitations in spectrum utilization. These assumptionsare reinforcedby the ideaof spectrum-property.The imagewe’re likely tohave isof a resource that canbeovergrazed.Toomanyusers canclog the channels, just as too many cattle can overgraze a field.

Congestion is certainlyapossibleconsequenceof spectrumusage.But the critical point to recognize—and again, a point that echoes throughout this book—is that the possibility congestion depends upon the design.WiFi net- works cancertainlybecomecongested.But adifferent architecture for“shar- ing” spectrum need not. Indeed,under this design,more users don’t deplete capacity—they increase it.79

The key to making this system possible is for every receiver to become a node in the spectrumarchitecture.Users thenwouldn’t be just consumersof someoneelse’sbroadcast. Instead, receivers arenowalsobroadcasters. Just as peer-to-peer technologies such asBitTorrent harness thebandwidth of users to share thecostof distributingcontent,userswithinacertainmesh-network architecture for spectrumcouldactually increase the spectrumcapacityof the network.Under this design, then, the more who use the spectrum, the more spectrum there is for others to use—producing not a tragedy of the com- mons, but a comedy of the commons.

The basic architecture of this mesh system imagines every computer in the system isbotha receiver anda transmitter.Of course, inone sense, that’s

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what these machines already are—a computer attached to a WiFi network bothreceives transmissions fromandsends transmissions to thebroadcasting node. But that architecture is a 1-to-many broadcasting architecture. The mesh architecture is something different. In a mesh architecture, each radio can send packets of data to any other radio within the mesh. Or, put differ- ently, each is anode in thenetwork.Andwitheverynewnode, thecapacityof the network could increase. In a sense, this is precisely the architecture of muchof the Internet.Machineshaveaddresses; theycollectpacketsaddressed to thatmachine fromtheNet.80Yourmachine shares theNetwitheveryother machine,but the Net has a protocol about sharing this commons.Once this protocol is agreed on,no further regulation is required.

Wedon’t havego toodeep into the technology to recognize thequestion that I mean this section to pose: If technology makes it possible for radios to share the spectrum—without either spectrum-licenses or spectrum-prop- erty—then what justification does the government have for imposing either burdenontheuseof spectrum?Or,to link itback to thebeginningof this sec- tion, if spectrumuserscouldshare spectrumwithoutanycoordinationby the government, why is it any more justified to impose a property system on spectrum than it is for the government to charge newspapers for the right to publish?

Nodoubt, the architecture that enables sharing isnot totally freeof gov- ernment regulation. The government may well require that only certified devicesbeused in thisnetwork(as theFCCalreadydoeswithanydevice that can radiate within a range of spectrum). It may push the technology to the capacity, increasing mesh architecture. It may even reasonably impose nui- sance-like limits on the power of any transmitter. But beyond these simple regulations, the government would not try to limit who could use the spec- trum. It would not ban the use of spectrum for people who hadn’t either paid or been licensed.

Soherewehave twoarchitectures for spectrum—onewhere spectrumis allocated,andonewhere spectrum(like themarket fornewspapers) is shared. Which is more consistent with the FirstAmendment’s design?

Here, finally, we have an example of a translation that works.We have a choice between an architecture that is the functional equivalent of the archi- tectureof theAmerican framingandanarchitecture equivalent to theSoviet framing.One architecture distributes power and facilitates speech; the other concentrates power and raises the price of speech. Between these two, the American framers made a choice. The state was not to be in the business of licensing speakers eitherdirectlyor indirectly.Yet that is just thebusiness that the current rule for spectrum allocation allows.

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Afaithful readingof the framers’Constitution,mycolleagueYochaiBen- kler and I have argued,81 would strike down the regime of spectrum alloca- tion.82 A faithful reading would reject an architecture that so strongly concentratespower.Themodel for speech that the framersembracedwas the modelof the Internet—distributed,noncentralized, fully freeanddiverse.Of course, we should choose whether we want a faithful reading—translation does not provide its own normative support.But if fidelity is our aim, this is its answer.

SPEECH LESSONS

What I described at the start of the book as modalities of constraint I have redescribed in this chapter as modalities of protection. While modalities of constraint can be used as swords against the individual (powers),modalities of protection can be used as shields (rights).

In principle we might think about how the four modalities protect speech,but Ihave focusedhereonarchitectures.Whicharchitecturesprotect what speech? How does changing an architecture change the kind of speech being protected?

I have not tried to be comprehensive. But I have pushed for a view that addresses the relationshipbetweenarchitecturesandspeechgloballyanduses constitutional values to thinknot just aboutwhat ispermittedgivenapartic- ular architecture,butalsoaboutwhicharchitectures arepermitted.Our real- spaceconstitutionshould informthevaluesof ourcyberspaceconstitution.At the least, it should constrain the state in its efforts to architect cyberspace in ways that are inconsistent with those values.

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T H I R T E E N

i n t e r l u d e

LET’S PAUSE FOR A MOMENT AND LOOK BACK OVER THESE THREE CHAPTERS.THERE is a pattern to the problems they present—a way of understanding how all three problems are the same.

In one sense, each has asked: How much control should we allow over information,andbywhomshould this controlbe exercised?There is abattle betweencode thatprotects intellectual property and fairuse; there is abattle between code that might make a market for privacy and the right to report facts about individuals regardless of that market; there is a battle between code that enables perfect filtering of speech and architectures that ensure somemessiness aboutwhogetswhat.Eachcasecalls forabalanceof control.

My vote in each context may seem to vary. With respect to intellectual property, I argue against code that tracks reading and in favor of code that guarantees a large space for an intellectual commons. In the context of pri- vacy, I argue in favorof code that enables individual choice—both toencrypt and to express preferences about what personal data is collected by others. Codewouldenable that choice; lawcould inspire that code. In the contextof free speech,however, I argueagainst code thatwouldperfectly filter speech— it is too dangerous, I claim, to allow perfect choice there. Better choice, of course, is better, so code that would empower better systems of reputation is good,as is code that would widen the legitimate range of broadcasting.

The aim in all three contexts is to work against centralized structures of choice. In the context of filtering, however, the aim is to work against struc- tures that are too individualized as well.

Youmayaskwhether thesechoicesareconsistent. I think theyare,but it’s not important that youagree.Youmaybelieve that adifferentbalancemakes sense—morecontrol for intellectualpropertyor filteringperhaps,and less for

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privacy.Myreal interest is inconveying thenecessityof suchbalancingandof the values implicit in the claim that we will always require a balance.Always there is a competitionbetween thepublic andprivate; always the rightsof the private must be balanced against the interests of the public.Always a choice must be made about how far each side will be allowed to reach.These ques- tionsare inherent topublic law:Howwill aparticular constellationof consti- tutionalvaluesbereckoned?Howwill abalancebestruck inparticular factual contexts?

Ihaveargued thispointwhileneglecting to specifywho is responsible for anygiven imbalance.Thereare thosewhowouldsay that there is toomuchfil- tering,ornotenoughprivacy,or toomuchcontrolover intellectualproperty, but these are not public concerns unless the government is responsible for these imbalances.Constitutionalvalue in theUnitedStates extendsonly so far as stateactionextends.AndIhavenot shownjusthowstateactionextends to these contexts.

Idonot intend to. Inmyview,our traditionreveals at least anambiguity abouthowfar constitutional valuesare toextend.Inaworldwhereonlygov- ernmentsare regulators,keeping theConstitution’s authority limited to state action makes some sense. But when the modalities of regulation are multi- plied, there is no reason to ignore the reach of constitutional values. Our framersmadenochoiceabout this; there isnoreasonwhyregulation through code cannot be informed by constitutional values. No argument has been made for why this part of our life should be cut off from the limitations and protections traditionally provided by the Constitution.

Code strikes the balance between individual and collective rights that I havehighlightedso far. In thenext chapter,adifferentbalance is struck—one againmadesalientbycode.However, this time thebalance isnotbetween the state and the individual but between the state and the implicit regulationsof thearchitecturesof cyberspace.Nowthe threat is toa traditional sovereignty. How do we translate that tradition to fit a world where code is law?

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P A R T F O U R

c o m p e t i n g s o v e r e i g n s

Sovereigns take themselves very seriously—especially sovereigns in cyber- space. Each has a strong sense of its own domain, and sometimes that sense translates intodominance inotherdomains.Asmoremoveonline, theclaims of one sovereign tocontrol speechorbehaviorwill increasingly conflictwith theclaimsothers sovereigns.Thatconflictwillprove tobe themost important generative fact for the Internet to be.

I approach the question of this conflict in two steps.The first chapter in thisPart addresses thequestionof sovereignty independentlyof thequestion of conflict.Whatdoes sovereigntymean?Howis itmanifest?Thenextchapter then focusesupontheparticulardynamic that theconflict amongsovereigns will create.That conflict, I argue,will press thearchitectureof the Internet to a certain familiar form.

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F O U R T E E N

s o v e r e i g n t y

VIETNAM IS A COMMUNIST NATION.IT IS ONE OF THE FEW REMAINING COMMUNIST states, and, of course, its communism is nothing like the communism that gave birth to the ColdWar.But nonetheless, it is a sovereign nation that still links its identity to Marx and Lenin (through Chairman Ho).

The United States is not a Communist nation.Defeated byVietnam,but a victor in the Cold War, we are a nation that in large part defines itself in opposition to the ideologyof MarxandLenin.Vietnamsets the state in serv- iceof thewitheringof the stateas its ideal; theUnitedStates sets thewithered state in the serviceof libertyas its ideal.Control is themodelof communism; freedom is the model of the United States.

Or so we are to think. I confess a certain fascination with Communist states. In the early 1980s

Iwandered througheveryEuropeanCommunist state thatwould letme in.In the early 1990s, I worked with constitutionalists in Georgia as they drafted their constitution. And in 1996, I spent much of the summer wandering throughVietnam.Aloneande-mail-free, I tried tounderstand thisplace that in my childhood fell victim to my nation’s exported struggle with the Cold War.

Though I’ve been to many different places around the world, I’ve never been toaplacemore spectacular.One is alwaysoverwhelmedby forgiveness, and anAmerican can’t help being overwhelmed by this nation’s warmth and welcome. Perhaps had we“won” the war forgiveness would not be so forth- coming. But it apparently comes easily to those who did win.

I wasn’t there, however, to understand forgiveness. I wanted to learn something about how the place ran. I wanted to understand how this state exercises controlover its citizens;howit continues toregulate;howitqualifies

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as one of the last remaining Communist states. So I spent time talking to lawyers,businessmen,and managers of the emerging Net inVietnam (“Net- Nam”).Very quickly, a surprising picture emerged.

Though the ideology of a Communist state admits very little limitation on thepowerof the state; though theVietnamese state sets as its ideal a com- mon good rather than the good of individuals or individual liberty; though onpaper there isno“liberty”inVietnamin the sense thatwe in theWest like to imagine it—thoughall this is true, I couldnot escape the feeling thatpeo- ple in Vietnam, in their day-to-day existence, are far less “regulated” than people in the United States. Not all people, of course: Political opponents undoubtedly feel the power of the state quite forcefully. But I sensed that ordinary people in their ordinary lives, many running small shops, had no conception of the control that government can exercise; no experience of having their wages reported to a central bureaucracy once a quarter; no understanding of what it is like to live under the (relative) efficiency of the regulationwehavehere.Life there is remarkably free fromgovernmental con- trol. Itwashard to imaginehowitwouldhavebeendifferenthadNixonwon thewar.Pornographywasbannedandhippieswereharassed,but in themain, people and business got on with very little direct or effective regulation by government.

This fact (if you’ll allowrandomobservationsof anuntrainedanthropol- ogist to count as fact) is not hard to understand. The“law”on the books in Vietnam may or may not be a stricter or more extensive regulator than the “law” in the United States. But the architecture of life in Vietnam clearly makes any real regulation by the state impossible.There is no infrastructure of control—there isbarely any infrastructureat all.Whatever the regulations of the state may be, there is no architecture that could make them effective. Even if there is more regulation there than here (and frankly I doubt that there is),Vietnam has an effective“freedom.”

Thismakesperfect sense.Thepower to regulate is a functionof architec- ture as much as of ideology; architectures enable regulation as well as con- strain it. To understand the power a government might have, we must understand the architectures within which it governs.

The preceding chapters have all been about this very point.We can have an ideaof sovereignpower—thepowerof the sovereign toregulateorcontrol behavior—but the significanceof thatpowergets realized inaparticular con- text.Thestate’spowermaybe“absolute,”but if thearchitecturedoesnot sup- port regulation, the state’s effective power is quite slight.On the other hand, the state’s power may be limited, but if the architectures of control are very efficient, this limitedpowercanbeextraordinarily extensive.Tounderstanda

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state’spower toregulatewemustask:Howwelldoes its infrastructure support regulation?

This is the question we should ask about cyberspace, as a first step to understanding sovereignty there.What power do sovereigns have to regulate life in cyberspace? How do the modalities of regulation help or limit that power?

We’ll consider thisquestion in threeparts, twoof whichare the subjectof this chapter.First,what is thenatureof the sovereignty incyberspace?Howis it different from the sovereignty of France? Second, what limits the sover- eignty of cyberspace?And third, the subject the next section,how will sover- eigns interact in theregulationof cyberspace,not somuchtocontrolbehavior there as to control the effects of that behavior here? How will they compete?

THE SOVEREIGN OF THE SPACE: RULES

Whenyouenter theworldofMMOGSecondLifeasanewcharacter, therules of SecondLifeareexplainedtoyou.Someof theserulesare the techniquesyou will need to get around in Second Life—how to move,or how to fly. Some of the rules arenormative commands that tell youwhat youcanandcan’t do.

It is impossible when confronting this introduction not to notice that these constraints are constructed. God didn’t make Second Life. No one is confused about whether he or she did. Nor is it likely that one entering this space wouldn’t notice that one important dimension to that construction is construction through code.That you can fly is a choice of the coders.Where you can fly is a choice of the coders. That when you bump into someone, a warning box is displaced is a choice of the coders.That you can turn off IM conversations from people you don’t want to hear from is a choice of the coders.Noonemistakes that thereare choices madehere.Everyonerecognizes that a critical part of the cyberspace world is made through code.As Second Life’s CEO, Philip Rosedale, put it to me: “What is God in a virtual world? Your only God is the code.”1

Now, as I’ve said from the start, we should distinguish between richly controlling spacesandthinlycontrolling spaces.Spaces likeSecondLife richly control the lifeof peopleplaying there. Indeed, thewholeobjectiveof playing there is create the impression that one is there. These, again, are the sorts of places I call cyberspace.

Cyberspace is verydifferent fromlifeonabill-payingwebsite,oronasite holdingyoure-mail.Codecontrols these, too.But thecontrol,or sovereignty, of those sites isdistinct fromthecontrolof SecondLife. InSecondLife,or in what I’ve defined to be cyberspace generally, the control is ubiquitous; on a

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bill-payingwebsite,oronwhat I’ve called the Internet, thecontrol ispassing, transitory.

Interestingly, there is an importantdynamic shift thatwe’vealready iden- tified, more in thinly controlling spaces than thick.This is the preference for code controls where code controls are possible.

Think again about the bill-paying website. It is of course against the law toaccess someone’sbankaccountandtransfer funds fromthataccountwith- out the authorization of the account owner.But no bank would ever simply relyupon the law toenforce that rule.Everybankaddsa complex setof code to authenticate who you are when you enter a bill-paying website. Where a policy objective can be coded, then the only limit on that coding is the mar- ginal cost of code versus the marginal benefit of the added control.

But in a thickly controlling environment such as Second Life, there’s a limit to the use of code to guide social behavior. Sometimes, in other words, better code can weaken community.As Second Life’s Rosedale put it,

In some ways the difficulty of Second Life is a benefit because you have to be

taught.AndthatActof being taught is suchahugewin forboth the teacherand

the student. . . . [We]have this sortof mentoringgoingonthat is suchapsycho-

logically appealing relationship—one which the real world doesn’t give us very

much.2

A secondway inwhichbetter code canweakencommunity is evenmore important. As Second Life is, it doesn’t enable people easily to segregate. As Rosedale described,

InSecondLife, there’sbasicallynotanyzoning.What thismeans is thatneighbor

disputes are frequent.But fromthe standpointof learning, this is actually a real

positive. I’ve gotten e-mail from people that says,“Well, I didn’t get along with

my neighbors, and as a result, I learned very rapidly a great deal about how to

resolvedisputes.Howtobeagoodneighbor.”. . . [I]n the realworld . . . there so

much law . . . that you don’t actually have to talk to your neighbors. [Instead]

there’s simply a law that says you can or can’t do [something.] . . . There’s an

opportunity tocommunicateand interact [in thevirtualworld] inaway that the

real world offers only under very rare circumstances.3

The code thus doesn’t simply make all problems go away. It doesn’t remove the need for neighbors to work stuff out. And in this way, the code helps build community.The practice of interaction builds bonds that would not be built if the code produced the same results, automatically. Optimal

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design leaves certain problems to the players to work out—not because the solutioncouldn’tbecoded,butalsobecausecodingasolutionwouldhavecol- lateral costs.

Nonetheless, it is still the sovereign in these virtual spaces that chooses onemodalityoveranother.The trade-off is complicated.Perfect efficiencyof results is not always perfectly efficient.But still the choice of means remains.

THE SOVEREIGN OF THE SPACE: CHOOSING RULES

Buthowis that choicemade?Ormoredirectly,whataboutdemocracy? Inreal space, the rule is that sovereigns are legitimate only if democratic.We barely tolerate (most) nondemocratic regimes.The general norm for real space life is that ultimately, the people rule.

But the single most interesting nondevelopment in cyberspace is that, again, as Castronova puts it, “one does not find much democracy at all in synthetic worlds.”4 The one real exception is a world called “A Tale in the Desert.”5 Democracyhasnotbrokenoutacrosscyberspace,oronthe Internet. Instead, democracy is a rare exception to a fairly strong rule—that the “owner”of the space is the sovereign.And in Castronova’s view, theowner is not ordinarily a very good sovereign:

In sum, none of the worlds, to my knowledge, has ever evolved institutions of

good government.Anarchy reigns in all worlds.6

This isn’t to say that aggregatedviewsdon’tmatter incyberspace. Indeed, they are crucial to central aspects of the Internet as it is just now.A kind of voting—as manifested through links—guides search engines. Technorati, as I’ve already described, relies upon the same to rank blogs. And important sites, suchasSlashdot, routinelyuse rankingsorvotesof editors todetermine which comments will rise to the top.

These are all democracy-like.But they are not democracy.Democracy is the practice of the people choosing the rules that will govern a particular place.And with the exception of Wikipedia, and“A Tale in the Desert,” there are very fewmajor Internetor cyberspace institutions that runby the ruleof the people.

Sowhatexplains thisdemocracygap?Andshouldweexpect it tochange? Our history of self-government has a particular form, with two impor-

tantly contingent features. Before our founding, life was geographically based—anationwasa society located inaphysical space,witha single sover- eignallegiance.Aswe’ll considermoreextensively in thechapter that follows,

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the conceptual revolution of the American Republic was that citizens could have two sovereigns—more precisely, that they (as the ultimate sovereign) couldvest their sovereignpower in twodifferentdelegates.Their stategovern- mentwasonedelegate, the federalgovernmentwasanother; individuals living in a single geographic location could thus be citizens of both governments. Thatwas the ideaof the foundingdocument,andtheFourteenthAmendment made it explicit: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof,are citizensof theUnitedStates andof the State wherein they reside.”

Citizenship in this sensedidnot alwaysmeana right to contribute to the self-government of whatever community you were a citizen of.7 Even today there are citizens thathavenoright tovote—e.g., children.But for those rec- ognizedasmembersof civil andpolitical society,citizenship isanentitlement: It is a right to participate in the governing of the political community of which they are members.As a citizen of the United States, I have the right to vote in U.S. elections; as a citizen of California, I have the right to vote in California elections. I have both rights at the same time.

At this level, the link between entitlement and geography makes sense. But as mobility has increased, the at-one-time obvious link between geogra- phy and citizenship has become less and less obvious. I live in San Francisco, but I work in Palo Alto. The rules give me full participation rights in San Francisco but none in PaloAlto.Why does this make sense?

Political theoristshavenoted thisproblemfor some time.8 Scholars such as Richard Ford and Lani Guinier have developed powerful alternative con- ceptionsof self-government thatwouldenableakindof self-governmentnot tied directly to geography. With one such alternative, voters choose (within limits) the communitywhere their votes count.Thus if I felt participating in the futureof PaloAltowasmore important thanparticipating in the futureof SanFrancisco,Iwouldhave theright tovote inPaloAlto thoughI lived inSan Francisco.

These complications are magnified when we consider the link between geographyandcyberspace.Even if I shouldhave the right tovote in thecom- munitywhere Iwork,should Ihave the right tovote in thecommunitywhere I play? Why would real-space citizens need to have any control over cyber- placesor their architectures?Youmight spendmostof your life inamall,but no one would say you have a right to control the mall’s architecture.Or you might like tovisitDisneyWorldeveryweekend,but itwouldbeodd toclaim thatyouthereforehavearight toregulateDisneyWorld.Why isn’t cyberspace more like a mall or a theme park than like the district in which you live and vote?

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Your relationship to a mall, or to Disney World, is the relationship of consumer to merchant. If you don’t like two-all-beef-patties-special-sauce- lettuce-cheese-pickles-onions-on-a-sesa-me-seed-bun, then you can go to Burger King; McDonald’s has no duty to let you vote on how it makes its hamburgers. If youdon’t like the localmall,youcangotoanother.Thepower youhaveover these institutions is yourability toexit.Theycompete foryour attention, your custom, and your loyalty; if they compete well, you will give them your custom; if they don’t, you will go somewhere else.That competi- tion is crucial in disciplining these institutions.What makes them work well is this competition among these potential sources for your custom.

Thismerchant-sovereignpartofour life is important.It iswherewespend most of our time, and most people are more satisfied with this part of their lives thantheyarewith thepartwithinwhich theyget tovote. In this sense,all theseplaces are sovereigns; theyall impose rulesonus.Butour recoursewith respect tomerchant-sovereigns is simply to takeourbusiness elsewhere.

But the merchant-sovereign part of our life is not exclusive. There are also citizen-sovereign parts of our life. There are no states that get to say to their citizens:“You have no right to vote here; if you don’t like it, leave.”Our role in relation to our governments is that of a stakeholder with a voice.We havea right—if thegovernment is tobecalleddemocratic—toparticipate in its structuring.

Andthis is truenot justwithgovernments. Itwouldbeanodduniversity thatgave its facultynoright tovoteon issuescentral to theuniversity (though it is an odd corporation that gives its employees a right to vote on issues related to employment). It would be an odd social club that did not give members somecontrolover its functions—thoughagain, thereare suchclubs, just as there are nondemocratic governments. Even the church allows its members to determine a great deal of how members are governed. In these institutions,wearemembers,not consumers—or,not just consumers.These institutions give consumers control over the rules that will govern them. In this sense, these institutions are citizen-sovereignties.

As a descriptive matter, then, cyberspace is not yet dominated (or even broadlypopulated)bycitizen-sovereignties.Thesovereigntieswesee so farare all merchant-sovereignties.And this is even more clearly true with the Inter- net.To theextent sites are sovereign, theyaremerchant-sovereigns.Our rela- tionship to them is the same as our relationship to McDonald’s.

Sometheoristshave tried tocollapse these twodifferentmodels intoone. Somehave tried tocarry themembermodel intoevery sphereof social life— the workplace, the mall, the local pub.9 Others have tried to carry the con- sumer model into every sphere of social life—followers of Charles Tiebout,

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for example, have tried to explain competition among governments along the lines of the choices we make among toothpastes.10 But even if we cannot articulate perfectly the justifications for treating these choices differently, it would be a mistake to collapse these different spheres into one. It would be hell to have to vote on the design of toothpaste, and tyranny if our only recourse against a governmentwedidn’t likewas tomove toadifferent land.

But then is it a problem that cyberspace is comprised of just merchant- sovereignties? The first defense for merchant-sovereignties is developed in the writings of David Post and his sometime coauthor David Johnson.11

Post’s article“Anarchy,State,and the Internet”best sets the stage.Communi- ties incyberspace,Postargues,aregovernedby“rule-sets.”Wecanunderstand these rule-sets tobe the requirements,whetherembedded in thearchitecture orpromulgated ina setof rules, that constrainbehavior inaparticularplace. The world of cyberspace,he argues, is comprised by these rule-sets. Individ- ualswill choose toenteronerule-setoranother.As rule-sets compete forour attention, theworldof cyberspacewill cometobedefinedby this competition of merchant-sovereigns for customers.

Post’s account again is descriptively accurate. It is also,Post argues,nor- matively recommended.Sovereigns should be understand as a firm’s market power is understood in antitrust law. By “market power” antitrust lawyers and economists mean a firm’s ability to raise prices profitably. In a perfectly competitivemarket,a firmwithnomarketpower is theone that cannot raise its prices because it would lose so much in sales as to make the increase not worth it.12 The firm that does have market power can raise prices and see its profits increase.The firmwithmarketpoweralsohas theability to forcecon- sumers to accept aprice for a good that is higher than theprice in a compet- itive market.

We might imagine an analogous constraint operating on government. Sovereigns, like firms,canget awaywithonly somuch.As theybecomemore repressive, or as they regulate more harshly, other sovereigns, or other rule- sets, become competitors.At some point it is easier for citizens to leave than to put up with the burdens of regulation,13 or easier to evade the law than to comply with it.

Because such moves are costly in real space, sovereigns, at least in the short run, can get away with a lot.But in cyberspace,moving is not so hard. If you do not like the rule-set of your MMOGs, you can change games. If youdonot like theamountof advertisingonone Internetportal, then in two seconds you can change your default portal.Life in cyberspace is about join- ingwithout ever leavingyour home. If the groupyou join doesnot treat you as you want to be treated, you can leave. Because competitive pressure is

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greater in cyberspace, governments and other propagators of rule-sets must behave like firms in a competitive market.

This is an important and interesting conception of governance. Impor- tantbecause itdescribesgovernance incyberspace; interestingbecause itper- haps shows the purpose and limits of citizen-sovereignty in real space. It argues foraworldof volunteers,onewhererulesarenot imposedbut selected. It is aworld thatminimizes theunconcented-to-powerof anyparticulargov- ernment, by making governments competitors for citizens. It is government like McDonald’s or Coca-Cola—eager to please, fearful of revolt.

Thereare reasons,however, tobe skeptical about thisview.First,consider theclaimthat exit costs are lower incyberspace than in real space.Whenyou switch toadifferent ISPor Internetportal,younodoubtconfrontadifferent setof“rules,”andthese rulesnodoubtcompete foryourattention.This is just like going from one restaurant or shopping mall to another.There are com- peting rule-sets; they are among several factors you consider in choosing an ISP;and to theextent that there is easymovementamongthese rule-sets, this movement isundoubtedlyacompetitionamong them.SomeISPs,of course, try tomake thismovementdifficult. If you’vebeenamemberof AOLfor ten years,andyoudecideyouwant to switch,AOLdoesn’tmake that changeeasy by providing, for example, a simple ability to forward your e-mail. But as people recognize this restriction imposed by AOL, they’ll choose other ISPs. If the competition is real, the rule-set will compete.

Communities,however,aredifferent.Consider the“competition”among, say,MMOGs.You joinanMMOGandspendmonthsbuildingacharacter in that community.You also collect assets—buildings you’ve built, or weapons you’ve acquired.Both resources are akindof capital.The setof relationships you’ve developed are the social capital; all the stuff you have is the physical capital.

If youthenbecomedissatisfiedwith life inyourchosenMMOGs,youcan leave. But leaving is costly. You can’t transfer the social capital you’ve built, and,depending upon the game, you may not be able to transfer the physical capital either. Like choosing to join a different frequent flyer program, the choice to joinadifferentMMOGisadecision towastecertainassets.Andthat fact will weaken the competition among these rule-sets.

I don’t mean to overstate the point. Indeed, as markets have developed for selling assets within MMOGs, and the nature of the games has become standardized, someargue that it is becomingmucheasier tomove fromone game to another. In real space you also can’t easily transfer social capital from one community to another. Friends are not fungible, even if they can give youconnections at yournewhome.Butphysical assets in real space are

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transferable. I can sell what I don’t want and move what I do. Always. In MMOGs,not always.

Paradoxically, then,wemight say that itmaybeharder tochangecommu- nities in cyberspace than it is in real space. It is harderbecause youmust give up everything in a move from one cyber-community to another,whereas in real space you can bring much of it with you.14 Communities in cyberspace may in the short run have more power over their citizens (regarding social capital) than real-space communities do.

Thismeans that thepictureof competing rule-sets incyberspace ismore complex thanPost suggests.Thepressureoncompetition ispotentiallygreater in turn. That might motivate a desire in cyberspace communities to shift towardcitizen-sovereignty,but,again, there’snotmuchevidenceof that shift yet.

There is a second,more fundamental skepticism.Even if we could con- struct cyberspaceon themodelof themarket—so thatwe relate to spaces in cyberspace the way we relate to toothpaste in real space—there are strong reasonsnot to.As lifemovesonline,andmoreandmorecitizens fromstates X, Y, and Z come to interact in cyberspaces A, B, and C, these cyberspaces maywellneed todevelop thekindof responsibility andattention thatdevel- ops (ideally) within a democracy.Or, put differently, if cyberspace wants to be considered its own legitimate sovereign, and thus deserving of some measureof independenceandrespect, itmustbecomemoreclearly a citizen- sovereignty.

This same dynamic happens in real space. There are many institutions that arenot“sovereign”in the sense that theycontrolhowpeople live,butare “sovereign” in the sense that within the institution, they control how people behave.Universities, social clubs,churches,andcorporationsare theobvious examplesof institutions thatgainakindof autonomyfromordinarygovern- ment. This autonomy can be thick or thin.And my suggestion is that it gets thicker the more the institution reflects values of citizen-sovereignty.

This kind of sovereignty is expressed in the law through doctrines of immunity. A corporation has certain immunities, but that depends upon it fitting a particular corporate form.Churcheshave a certain immunity,but it is increasingly challenged as its governance becomes more alien.

Communities incyberspacewill earna similar immunitymorequickly if they reflect citizen-sovereign values rather than merchant-sovereign values. The more responsible the communities become, the more likely real-space governments will defer to their norms through doctrines like immunity.

Thismaturation—if it is that—isobviously a longwaydownthe road. It dependsuponan increasing self-recognitionbymembersof thesecyberspace

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communities that theyare, ina sense, separate,orcomplementarycommuni- ties. Itdependsuponan increasingrecognitionamongnoncommunitymem- bers that there’s something distinctive about these communities. Some are optimistic that this will happen.As Dan Hunter and Greg Lastowka write:

Courtswillneed torecognize thatvirtualworldsare jurisdictions separate from

our own,with their own distinctive community norms, laws, and rights.While

cyborg inhabitants will demand that these rights be recognized by real-world

courts and virtual-world wizards, they will need to arrive at these rights them-

selves within the context of the virtual worlds.15

We’ve seen something similar to this progression in our own history. There was a time when the United States was really “these united States,” a timewhen thedominantpolitical realitywas local and therewere realdiffer- ences of culture and values between New York and Virginia. Despite these differences, in 1789 these states united to establish a relatively thin national government.This governmentwas tobeminimal and limited; it hadanum- ber of narrow, strictly articulated purposes,beyond which it was not to go.

These limitsmadesense in the limitedcommunity that theUnitedStates was.At the time there was very little that the states shared as a nation. They sharedahistoryof defeating the strongest army in theworldandapurposeof growing across an almost endless continent,16 but they did not share a social or political life. Life was local, exchange was relatively rare, and in such a world limited national government made sense.

Nevertheless, therewerenationalquestions tobearticulatedandresolved. Slavery, for example,was amarkonour country as awhole, even though the practicewas limited toa fewstates.Therehadbeenargumentsat the founding aboutwhether slavery shouldbe left to local regulation.But theConstitution was foundedonacompromiseabout thatquestion.Congresswasnotpermit- ted to address the question of the“importation”of slaves until 1808.17 After that, it could,andpeople, increasingly, said that it should.Slavery continued, however, to be a stain on the moral standing of our nation. Congress could eliminate it in the territories at least, and someargued that it shoulddo so in the southern states as well.

Opponents to this call forCongress to cleanseournationof slaverywere of two sorts. One type supported the institution of slavery and believed it wascentral to southern life.Theyarenotmyfocushere.Myfocus is a second type—thosewho,withperfect integrityandcandor,argued that slaverywasa local issue,not a national issue; that the framers had understood it not to be a national issue; and that the national government should let it alone.

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However true that claimmighthavebeen in1791or1828, it became less plausible over time. As the nation became socially and economically more integrated, theplausibilityof saying“I amaVirginian first”declined,and the significance of being a citizen of the nation as a whole increased.18

This change came about not through some political decision but as a resultof achangingeconomicandsocial reality.Our senseof beingmembers of anational community increaseduntil, at a certain stage, it became impos- sible to deny our national citizenship.A war produced that recognition.The FourteenthAmendment wrote it into the Constitution; economic and social intercourse made it completely real.And as this change took hold, the claim that issues like slavery were local became absurd.

Thevery sameprocess ishappening tousnow,internationally,andcyber- space is making an important contribution. It has been slowly gaining momentum, of course, since the end of World War II, but the Internet has wildly accelerated the pace. Ordinary citizens are connected internationally and can make international transactions as never before. The presence of a community that is beyond any individual state is increasingly undeniable.

As this international community develops in cyberspace, its citizens will find it increasinglydifficult to standneutral in this international space. Just as aprincipledsortof citizen in1791mighthavesaid that slavery inVirginiawas irrelevant toacitizen inMaine, so in1991 thecontrolof speech inSingapore may have been irrelevant to a citizen of the United States. But just as the claim about slavery’s local relevancebecame implausible in the courseof the nineteenth century, the claim about speech on the Net will become equally implausible in the 21st century. Cyberspace is an international community; there are constitutional questions for it to answer; and we cannot simply standback fromthis international spaceandsay that thesequestionsare local issues.

At least, we could not say that once we effectively invaded this interna- tional space with the Internet of 1995.We put into the world an architecture that facilitated extraordinarily free speech and extraordinary privacy; that enabled secure communications through a protocol that permitted encryp- tion; andthatencouraged freecommunications throughaprotocol that resis- ted censorship. That was the speech architecture that the Net gave the world—that we gave the world.

Now we are changing that architecture.We are enabling commerce in a waywedidnotbefore;wearecontemplating theregulationof encryption;we are facilitating identityandcontentcontrol.Weare remaking thevaluesof the Net,and thequestion is:Canwecommitourselves toneutrality in this recon- struction of the architecture of the Net?

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Idon’t think thatwecan.Or should.Orwill.Wecannomore standneu- tral on the question of whether the Net should enable centralized control of speech thanAmericanscouldstandneutralonthequestionof slavery in1861. Weshouldunderstandthatwearepartof aworldwidepoliticalbattle; thatwe haveviews aboutwhat rights shouldbeguaranteed toall humans, regardless of their nationality; and that we should be ready to press these views in this new political space opened up by the Net.

I amnotarguing forworldgovernment. Indeed, the impossibilityof such an idea is the focusof muchof thenext chapter.Myargument instead is that wemust take responsibility for thepoliticswearebuilding into this architec- ture, for this architecture is a sovereigngoverning thecommunity that lives in that space.Wemust consider thepoliticsof thearchitecturesof the life there.

I have argued thatwe shouldunderstand the code in cyberspace tobe its own sort of regulatory regime, and that this code can sometimes be in com- petitionwith the law’s regulatory regime.Forexample,wesawhowcopyright law could be inconsistent with the regulatory regime of trusted systems.My argument is thatwe shouldunderstand these tobe tworegulatory regimes in competition with each other. We need a way to choose between them. We need a way to decide which should prevail.

As this system of regulation by code develops, it will contain its own norms,which it will express in its structures or in the rules it imposes. If the predictions of law and economics are correct, these norms will no doubt be efficient,andtheymaywellbe just.But to theextent that justicedoesnot track efficiency, theywillbeefficientandunjust.Thequestionwill thenbe:Howdo we react to this gap?

There is an importantpattern in this competitionbetweencodeand law. Law,at least as it regulates international relations, is theproductof extended negotiations.Countries must come to an agreement about how law will reg- ulateandaboutanynorms that theywill imposeonprivateordering.As their work relates to cyberspace inparticular, this agreement isquite significant. It will require the nations of the world to come to a common understanding about this space and todevelopacommonstrategy fordealingwith its regu- lation.

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F I F T E E N

c o m p e t i t i o n a m o n g s o v e r e i g n s

CONFLICTS

Hereare twostories about thepowerof sovereignty,oneyou’re likely tohave heard of, and the other not.

1. Protecting the French

TheFrenchdon’t likeNazis (andresist yourFrench-bashingurge toadd“any- more” to that sentence; remember, but for the French, we likely would not have a nation).French law doesn’t let the Nazis fight back.As in Germany, it is a crime in France to promote the Nazi party and sell Nazi paraphernalia. The French are vigilant that this virus of an ideology not revive itself in Europe.

French law is different from American law in this respect. The First Amendment would block any viewpoint-based limitation on political prop- aganda.The state couldnomoreblock the saleof Nazi paraphernalia than it couldblock the saleof Republicanbuttons.Free speechmeans that theview- point of a political relic can’t determine whether the relic is sold.

Yahoo! is an American company. In 1999, Yahoo! opened a French branch, and, at Yahoo! France, Yahoo! opened an auction site.1 Like eBay, this site permitted individuals to list items for auction. Like eBay, the site ran the auction and helped facilitate the ultimate sale of the items auc- tioned.

Very soon after the site opened, and contrary to French law, Nazi para- phernalia began to appear on the Yahoo! auction sites available for sale in

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France. Some in France were not happy. In 2000, a lawsuit was filed against Yahoo!,demandingYahooeither remove theNaziparaphernalia fromits site or block access to the Nazi paraphernalia.2

This in turnmadeYahoo!unhappy.Thiswas the Internet,Yahoo! insisted. It is a global medium. There was no way to block French citizens from the Yahoo! sites.And it would be absurd if the rules of one country became the rules of the world. There would be a race to the bottom (or top, depending uponyourperspective) if everycountrycould forceeverywebsite in theworld tocomplywith itsown law.France should just accept that in theworldof the Internet, the rule of France won’t be absolute.As the Ninth Circuit Court of Appeals summarizedYahoo!’s argument,“Yahoo!wants adecisionproviding broadFirstAmendmentprotection for speech . . .on the Internet thatmight violate the laws . . . of other countries.”3

FrenchJudge Jean-JacquesGomezdidn’t agreewithYahoo! Inanopinion issued inMay2000, the judgerequiredYahoo!either toremove theNazipara- phernaliaor toblockFrenchcitizens.4 Ina secondorder issued inNovember, the French court directed Yahoo! to comply within three months, or pay 100,000 French francs per day of the delay.5

The Internet was outraged.Thousands of websites criticized the French Court’s decision, and hundreds of newspapers followed suit. France was destroying “free speech” on the Internet by forcing its rule on anyone who used the Internet anywhere. As the Cato Institute’s Adam Thierer com- mented,

Thankfully,Americans take free speech a bit more seriously than the Brits, the

French, theGermansandrestof theworld.And,yes,Americacouldbecomethe

guardian of free speech worldwide by offering the protection of the First

Amendmentover theNet tomillionsof peoplewhohavebeendenied the right

to speak freely in their own countries.6

2. Protecting Hollywood

In2000,a serial entrepreneur,BillCraig, launchedaToronto-basedservice for theWorldWideWebcalled iCraveTV. iCraveTVwasdesigned tostreamordi- nary televisionacross the Internet.UnderCanadian law,at least as interpreted at the time,7 iCraveTVbelieved itdidn’tneedpermission to streambroadcast televisionacross the Internet lines.UnderCanadian law,so longas thebroad- cast itself wasn’t changed,youcoulduseany technology toextendthereachof the broadcast.8 So Craig bought his servers, fired up the streams, and with a

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much-hyped launch, sat back to wait for the customers to come.And come theydid,by themillions.Craig’s servicewasan instant success. It seemed lots more than Craig craved TV.

Not long after Craig’s launch, however, he began to discover that not everyone loved Craig’s idea. In particular, U.S. copyright holders were not tookeenonthe freeTVthatCraighadcreated.Whileonewas free inCanada to rebroadcast television across the Internet,one wasn’t in the United States. United States copyright law heavily regulates the right to rebroadcast, and Craig had not satisfied U.S rules.

iCraveTVdid takesomesteps tokeepU.S.residentsout.Butnoonecould reallyhaveexpected these stepswouldwork.At first, iCraveTVsimplywarned people that only Canadians were to use the site. Later iCraveTV added an area-code block to its site—you needed to specify your area code to get in; if the area code was not Canadian,you couldn’t get in.But it’s not hard to find aCanadianarea code (for example, the telephonenumberof iCraveTV itself prominently displayed on iCraveTV’s website.)

But Craig didn’t think it was his job to police the infringing behavior of Americans. It didn’t violate the law for anyone to streamTVinCanada.Why did he need to worry about whether it violated the law in the U.S.?

A posse of American lawyers quickly convinced Craig that he needed to worry. Ina lawsuit filed inPittsburgh,theNationalFootballLeague(anda few other parties) charged iCraveTV with copyright infringement in the United States.Whetherornot itwas legal inCanada tostreamTVacross the Internet, it was not legal in the United States.Thus, to the extentAmericans could get access to this Canadian site, they were violating American law. And to the extent thisCanadian sitemade it possible forAmericans to access thisCana- dian site, it was violating American law. The NFL thus demanded that the Pittsburgh court shut this Canadian server down.

The U.S. District Court Judge, Donald Ziegler, conducted an extensive fact-findingproceeding.OnFebruary8,2000, theCourt issuedan injunction shutting iCraveTV down. The Court gave iCraveTV 90 days to demonstrate that it had the technology to block U.S. residents. iCraveTV promised that, using some of the IP technologies described in Chapter 4, it could block 98 percent of American citizens. But 98 percent wasn’t good enough for the Court. If anyAmerican could access the iCraveTV site, iCraveTV was violat- ing U.S. law.

iCraveTV couldn’t promise 100 percent success. Unlike Judge Gomez’s decision about France, however, there was no outrage on the Net following this decision. There weren’t thousands of websites criticizing it, or even a handful of editorials questioning it. Indeed,almost nobody noticed.

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Reciprocal Blindness

The Yahoo! France case and the iCraveTV case raise the same funda- mental issue. In each, there is a behavior that is legal in one country (selling Naziparaphernalia for theUnitedStates, streaming freeTVacross the Inter- net forCanada),and illegal inanother country (sellingNaziparaphernalia in France; streaming free TV in the United States). In both cases, the judge in the country whose laws were being violated exercised his power to stop the violation (Judge Gomez orderingYahoo! either to remove the Nazi material or toblock it fromFrance; JudgeZieglerordering iCraveTVtoeither remove broadcast television from its site or block it from Americans). But in one case, this result was vilified as “censorship”while in the other, it was barely noticed.

This is reciprocal blindness.We see a fault in others that we can’t see in ourselves.To anAmerican,blocking the speech of Nazis is“censorship.”And it adds insult to injury todemandthat suchspeechbecensored in theUnited States—where it is legal—just because it is not legal in France.

Butwhy isn’t it“censorship”toblock freeTV inCanada justbecause it is illegal in theUnitedStates? Inbothcases, speech legal inonecountry isbeing blocked in that country by a court in a second. The United States blocks Canadians from getting free TV just because free TV is illegal in the United States.TheFrenchblocksAmericans fromgettingNaziparaphernaliaon the Yahoo! auction site just because that paraphernalia is illegal in France.

Indeed, in one important respect, the iCraveTV case is worse than the Yahoo!case. In theYahoo!case, theCourt consideredevidenceaboutwhether Yahoo!couldtake technicalmeasures toblockFrenchcitizens.9As JoelReiden- berg emphasizes,10 its trigger for liability was the conclusion that there were reasonable technical means for blocking French citizens from the Nazi mate- rial.Thosemeansweren’tperfect,but theCourtestimatedthatover90percent of French users could be identified.11 But in the iCraveTV case, the technical means, thoughpromised tobe98percent effective,weredeemednotenough. The restrictionof theAmericancourtwas thus greater than the restrictionof Frenchcourt.

Americans don’t have any monopoly on blindness.And I don’t pick this case topickonAmericans. Instead, thisbraceof cases teachesageneral lesson. There will be no nation that has no speech that it wishes to regulate on the Internet.Every nation will have something it wants to control.Those things, however,will be different,nation to nation.The French will want to regulate Nazi speech; theAmericanswillwant toregulateporn; theGermanswillwant to regulate both; the Swedes will want to regulate neither.

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This chapter is about these overlapping desires for control.How will the Internet accommodate this mix? Whose rules will apply? Is there a way to avoid either anarchy or total regulation? Will the most restrictive regimes determine the freedom left for the rest of us?

Inmyview,we’ve seenenoughtoseehowthestorywillunfold. Idescribe that unfolding in the balance of this chapter. But first, we should be clear about the reason why this regulation of cyberspace will occur.We should all recognize the interest thegovernmenthashere and justhowstrong,orweak, that interest is.And,more importantly,weshouldrecognizehowthearchitec- ture of the network has changed to make securing that interest possible. As Jack Goldsmith and TimWu write,

Yahoo!’s argumentswerepremisedon the1990svisionof aborderless Internet.

Half adecade later, this vision is fastbeing replacedby the realityof an Internet

that is splitting apart and reflecting national borders. Far from flattening the

world, the Internet is in many ways conforming to local conditions.12

ON BEING “IN” CYBERSPACE

Cyberspace is a place.13 People live there. They experience all the sorts of things that they experience in real space there, and some experience more. Theyexperience this,notas isolated individualsplayingsomehigh-techcom- puter game, but as part of groups, in communities, among strangers, and among people they come to know and sometimes like—or love.

While they are in that place, cyberspace, they are also here.They are at a terminal screen, eating chips, ignoring the phone. They are downstairs on thecomputer, late atnight,while theirhusbandsareasleep.Theyareatwork, at cyber cafes, and in computer labs.They live this life there,while here, and thenat somepoint in theday they jackout andareonlyhere.They rise from the machine in a bit of a daze, and turn around.They have returned.

So where are they when they are in cyberspace? We have this desire to pick:We want to say that they are either in cyber-

space or in real space. We have this desire because we want to know which space is responsible. Which space has jurisdiction over them? Which space rules?

Theanswer isboth.Wheneveranyone is incyberspace, she is alsohere, in real space.Wheneverone is subject to thenormsof acyberspacecommunity, one is also living within a community in real space. You are always in both places if you are there, and the norms of both places apply.The problem for

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law is toworkouthowthenormsof the twocommunities are to apply given that the subject to whom they apply may be in both places at once.

Think again about Jake Baker. The problem with Jake was not that he went to a different place where the norms were different. The problem was thathewas simultaneously inaMichigandormroomandontheNet.Hewas subject to thenormof civility in thedorm,andhewas subject to thenormof indecency incyberspace.Hewas subject, that is, to twosetsof normsashe sat in that single chair.

So whose norms would apply? How would real-space governments deal with the conflict between these two communities?

Someexamplesmighthelp to set a context inwhich thatquestionmight beanswered.Ordinarily,whenyougo toEuropeyoudonotbring the federal government with you. You do not carry along a set of rules for Americans while in Europe. In Germany you are generally subject to German law. The UnitedStatesordinarilyhas very little reason toworry about regulatingyour behavior there.

But sometimes theU.S.governmentdoeshaveareasontoregulateAmer- icancitizens abroad.When itdoes,nothing in international lawcan stop it.14

Forexample, thereare jurisdictionswherepedophilia isnotadequately regu- lated, and for a time they became target tourist spots for pedophiles from aroundtheworld.TheU.S.governmentpasseda law in1994 to forbidAmer- icans fromengaging inchild sexwhileoutside theUnitedStates,even in juris- dictions where child sex is permitted.15

What justification could there have been for such a law? Obviously, the sense of Congress was that if a person engages in such behavior in a foreign country, they are more likely to do it here as well. If they visit a community where the norms permit such behavior, they are more likely to carry those normsback to their lifehere.Thus,while theAmericangovernmentgenerally doesn’tmuchcarewhatyoudoelsewhere, itdoesbegin tocarewhenwhatyou do elsewhere has an effect on your life here.

Regulations like this are the exception,of course.But they are the excep- tionbecause thepracticeof passing intoalternative,oralien,communities in real space is also the exception. The frictions of real-space life make it less likely that thenormsof analienculturewill bleed intoourown; thedistance betweenusandaliencultures is sogreat thatvery fewcanafford tohavea life in both places.

But theNet changes this.As theBaker case suggests, andas anynumberof other cases will press, with cyberspace these other communities are no longer elsewhere. They can be brought home, or more frighteningly, into the home. Real-space communities no longer have the buffer of friction to protect them.

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Another community can now capture the attention of their citizens without theircitizens’ever leavingtheir livingroom.Peoplemaybe inbothplacesat the sametime.Oneaffects theother.AsEdwardCastronovawrites,“syntheticworlds are becoming important because events inside them can have effects outside them.”16 Thequestion forgovernment ishowfar toallowtheseeffects togo.

Nowthisquestionhas really threedifferentparts—twoold,andonenew. The old part is how a far a government will allow foreign influences to affect its cultureand itspeople.Culturesatone time isolatedare later invadedwhen thebarriers to invasion fall.Thinkabout theplea fromEuropeans to stop the invasionofAmericanculture,whichpoursover satellite television into the liv- ing rooms of European citizens.17 Or even more extreme, the Middle East. Theseplaceshave long fought toprotect their culture fromcertainalien influ- ences, and that fightbecomesmuchmoredifficultonce the Internetbecomes ubiquitous.

Thesecondoldpart is thequestionof how,orwhether,agovernmentwill protect its citizensagainst foreignpracticesor rules that are inconsistentwith itsown.Forexample, thecopyright lawof France stronglyprotects the“moral rights”of French authors. If a French author enters into a contract with an Americanpublisher,andthat contractdoesnotadequatelyprotect the“moral rights”of the French citizen,how will the French respond?

But the thirdquestion—andthenewpart—is the issueraisedby theabil- ity forcitizens to live in thealienculturewhile still athome.This is something more thanmerelywatching foreign television.ThealternativesofferedbyTV are alternatives of the imagination. The interactive life of cyberspace offers alternative ways of living (or at least some cyberspaces do).

My focus in this chapter isnoton the first question,whichmanycall cul- tural imperialism.It is insteadupontheconflicts thatwillbemanifestedbythe second and third. It may well be true that there have always been conflicts betweentherulesofdifferentgovernments.Itmayalwayshavebeenthat those conflictshavebled intoparticular localdisputes.Cyberspacehasexplodedthis third stage of the debate.What was once the exception will become the rule. Behaviorwasoncegovernedordinarilywithinone jurisdiction,orwithin two coordinating jurisdictions.Nowitwill systematicallybegovernedwithinmul- tiple, noncoordinating jurisdictions.Howcan lawhandle this?

The integration of cyberspace will produce a profound increase in the incidence of these conflicts. It will produce a kind of conflict that has never happened before: a conflict arising from individuals from different jurisdic- tions living together inone spacewhile living in thesedifferent jurisdictions.

Thisquestionhasproduceda ferociousargumentbetween twoextremes. At one end is the work of David Post and David Johnson. Johnson and Post

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argue that the multiplicity of jurisdictions in which your behavior is subject to regulation(sinceanythingyoudo incyberspacehasaneffect ineveryother context) should mean that much behavior is presumptively not subject to regulation anywhere.Anywhere, that is, save cyberspace.18 The inconsistency of anyother solution,theyargue,wouldbeabsurd.Rather thanembracing the absurd,weshouldembrace something farmore sensible: life incyberspace,as Milan Kundera might put it, is life elsewhere.

At the other extreme is the work of scholars such as Jack Goldsmith and TimWu,whoclaimthere isnothingnewhere—at leastnewfromtheperspec- tive private international law.19 For many years the law has worked through these conflicts of authority. Cyberspace may increase the incidence of these conflicts, but it does not change their nature. Old structures may have to be molded to fit this new form,but the pattern of the old will suffice.

Whileboth sides embracepartial truths, inmyviewbotharemistaken.It is true,as JohnsonandPostargue, that there is somethingnewhere.Butwhat isnew isnotadifference inkind,onlyadifference indegree.And it is true,as GoldsmithandWuargues, thatwehavealwayshaddisputesof this form.But wehavenothadconflicts at this level.Wehavenothada timewhenwecould say that people are actually living in two places at once,with no principle of supremacybetween them.This is thechallenge thatwewill face in the future.

This duality is a problem because the legal tools we have used to resolve these questions before were not designed to deal with conflicts among citi- zens. They were designed to deal with conflicts among institutions, or rela- tively sophisticated actors. They are rules made for businesses interacting with businesses, or businesses interacting with governments. They were not designed for disputes between citizens.

JessicaLitmanmakesananalogouspoint inherworkoncopyright.20 For muchof the last century,Litmanargues,copyrighthasworked fairlywell as a compromisebetweenpublishers andauthors. It is a law thathas largelybeen applied to institutions. Individuals were essentially outside copyright’s purview since individuals didn’t really“publish.”

The Internet, of course, changes all this. Now everyone is a publisher. And Litman argues (convincingly, in my view) that copyright’s rules do not necessarily work well when applied to individuals.21 The ideal rules for indi- viduals may not necessarily be the ideal rules for institutions. The rules of copyright need to be reformed to make them better suited to a world where individuals are publishers.

The same is true of conflicts between sovereigns. The rules for dealing with these conflicts work well when the parties are repeat players—corpora- tions that must do business in two places, for example, or individuals who

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constantly travelbetween twoplaces.Thesepeople can take steps toconform their behavior to the limited range of contexts in which they live, and the existing ruleshelp themto that end.But itdoesnot follow(as itdoesnot fol- low in the context of copyright) that the same mix of rules would work best in a world where anyone could be a multinational.

Thesolution to this changewillnotcomefrominsistingeither thatevery- thing is the same or that everything is different. It will take more work than that.When a large number of citizens live in two different places, and when one of those places is not solely within the jurisdiction of a particular sover- eign, thenwhatkindsof claimsshouldonesovereignbeable tomakeonoth- ers, and what kinds of claims can these sovereigns make on cyberspace?

This question is not yet answered. It is another latent ambiguity in our Constitution’s past—but in this case there is no founding international con- stitutional moment.Even if there had been, it would not have answered this question.At the founding ordinary people were not routinely living in mul- tiple noncoordinating jurisdictions.This is something new.

POSSIBLE RESOLUTIONS

That therewill beconflicts inhowgovernmentswant their citizens tobehave is certain.What isnotyet certain ishowtheseconflictswillbe resolved.In this section, I map three separate strategies. The first was the dream of the early Internet. The second is the reality that many nations increasingly see today. And the third is the world we will slowly become.

The No Law Rule

OnFebruary8,1996,JohnPerryBarlow,former lyricist for theGratefulDead and co-founder of the Electronic Frontier Foundation,published this decla- ration on EFF’s website:

Governmentsof the IndustrialWorld,youwearygiantsof fleshandsteel, I come

from Cyberspace, the new home of Mind.On behalf of the future, I ask you of

the past to leave us alone.You are not welcome among us.You have no sover-

eignty where we gather.

Wehavenoelectedgovernment,nor arewe likely tohaveone, so I address

you with no greater authority than that with which liberty itself always speaks.

I declare the global social space we are building to be naturally independent of

the tyrannies you seek to impose on us.You have no moral right to rule us nor

do you possess any methods of enforcement we have true reason to fear.

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Governmentsderive their justpowers fromtheconsentof thegoverned.You

have neither solicited nor received ours.We did not invite you.You do not know

us,nordoyouknowourworld.Cyberspacedoesnot liewithinyourborders.Do

notthinkthatyoucanbuild it,as thoughitwereapublicconstructionproject.You

cannot. It is anactof natureand it grows itself throughourcollectiveactions.

Youhavenotengaged inourgreat andgatheringconversation,nordidyou

create thewealthof ourmarketplaces.Youdonotknowourculture,our ethics,

or the unwritten codes that already provide our society more order than could

be obtained by any of your impositions.

You claim 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

themandaddress thembyourmeans.Weare formingourownSocialContract.

This governance will arise according to the conditions of our world,not yours.

Our world is different.

Cyberspace consists of transactions, relationships, and thought itself,

arrayed likea standingwave in thewebof ourcommunications.Ours is aworld

that is both everywhere and nowhere,but it is not where bodies live.

We are creating a world that all may enter without privilege or prejudice

accorded by race, economic power,military force,or station of birth.

We are creating a world where anyone, anywhere may express his or her

beliefs, no matter how singular, without fear of being coerced into silence or

conformity.

Your legal concepts of property, expression, identity,movement, and con-

textdonotapply tous.Theyareallbasedonmatter,andthere isnomatterhere.

Our identities have no bodies, so, unlike you, we cannot obtain order by

physical coercion.Webelieve that fromethics,enlightenedself-interest,and the

commonweal, our governance will emerge. Our identities may be distributed

acrossmanyof your jurisdictions.Theonly lawthat all ourconstituent cultures

would generally recognize is the Golden Rule.We hope we will be able to build

ourparticular solutionsonthatbasis.Butwecannotaccept the solutionsyouare

attempting to impose.

In theUnitedStates,youhave todaycreateda law,theTelecommunications

ReformAct,whichrepudiates yourownConstitutionand insults thedreamsof

Jefferson, Washington, Mill, Madison, de Tocqueville, and Brandeis. These

dreams must now be born anew in us.

You are terrified of your own children, since they are natives in a world

where you will always be immigrants.Because you fear them,you entrust your

bureaucracieswith theparental responsibilitiesyouare toocowardly toconfront

yourselves. In our world, all the sentiments and expressions of humanity, from

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thedebasing to theangelic,arepartsof a seamlesswhole, theglobal conversation

of bits.We cannot separate the air that chokes from the air upon which wings

beat.

In China,Germany,France,Russia, Singapore, Italy and the United States,

you are trying to ward off the virus of liberty by erecting guard posts at the

frontiersof Cyberspace.Thesemaykeepout thecontagion fora small time,but

they will not work in a world that will soon be blanketed in bit-bearing media.

Your increasinglyobsolete information industrieswouldperpetuate them-

selves by proposing laws, in America and elsewhere, that claim to own speech

itself throughout theworld.These lawswoulddeclare ideas tobeanother indus-

trial product, no more noble than pig iron. In our world,whatever the human

mind may create can be reproduced and distributed infinitely at no cost. The

global conveyance of thought no longer requires your factories to accomplish.

These increasinglyhostile andcolonialmeasuresplaceus in the sameposi-

tion as those previous lovers of freedom and self-determination who had to

reject theauthoritiesof distant,uninformedpowers.Wemustdeclareourvirtual

selves immune toyour sovereignty, evenaswecontinue to consent toyour rule

over our bodies.We will spread ourselves across the Planet so that no one can

arrest our thoughts.

We will create a civilization of the Mind in Cyberspace. May it be more

humane and fair than the world your governments have made before.22

Perhapsnosingledocumentbetter reflects an ideal thatwasdominanton the network a decade ago.Whatever rule governed“our bodies,”no govern- ment could govern the “virtual selves” that would live in this space. Barlow declared these “virtual selves”“immune” from real space sovereigns. Real- space sovereigns would be lost if they tried to exercise control here.

Though Barlow issued his declaration at a meeting of world leaders at Davos, apparently world governments didn’t hear what he said. That very day, the President signed the Communications Decency Act of 1996.23 And though the Supreme Court would eventually strike down this law, the SupremeCourt was certainly not signaling the endof any regulation of“vir- tual selves.”Astringof legislation fromtheUnitedStatesCongress coincided with a string of regulation from around the world. And that trend has only increased.As one study measured it, the growth of legislative efforts to regu- late the Net was slow at first, but has taken off dramatically.24 These regula- tions were at first directed to“harness[ing] technology to serve what [were] perceived tobegovernmentalgoalsunrelated to thenet”; thensecond,“aimed directly at fostering the advancement of Net infrastructure”; and third, “directly concern[ed] control over information.”25

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The reasons Barlow’s ideals were not going to be realized might be obvi- ous in retrospect, but they weren’t well recognized at the time. Laws are enacted as a result of political action; likewise they can be stopped only by political action.Ideas,orbeautiful rhetoric,aren’tpolitical action.WhenCon- gress confronts impassionedparentsdemanding itdoes something toprotect their kids on the Net; or when it faces world-famous musicians angry about copyright infringementon theNet;orwhen it faces serious-seeminggovern- ment officials talking about the dangers of crime on the Net, the rhetoric of even a Grateful Dead lyricist won’t cut it. On Barlow’s side, there had to be political action.But political action is just what the Net wasn’t ready for.

The One Law Rule

The opposite result of no law is a world where there is but one law. It is the world where one government (or conceivably, all governments working together,but that idea is tooridiculous toevencontemplate so Iwon’tdiscuss it here) dominates the world by enforcing its law everywhere.

As Michael Geist convincingly argues, that’s indeed what is happening now. “Governments,” Geist writes, are “unwilling to concede that national lawsare limited tonationalborders, [and]are increasingly turning toexplic- itly extra-territorial legislation.”26

Here again (unfortunately), the United States is a leader. The United States has a view of proper network behavior. It has asserted the right to enforce that view extraterritorially, and it enforces its rule against citizens from around the world whether or not the U.S. rule conflicts with a local rule. The FTC, for example, is “vested with responsibility for enforcing [the Child Online Privacy Protection Act],” Geist writes, and “its rule-making guidance leaves no doubt that such sites are expected to comply with the statute in their privacy practices toward children.”27 So too does the Depart- mentof Justicemaintain that theDMCAapplies extraterritorially,because it refers to“imports”of technologies.28 And the USA Patriot Act includes pro- visions that “are expressly extra-territorial”—including, for example, an expansionof the listof“protectedcomputers”to include“acomputer located outside theUnitedStates that isused inamanner thataffects interstateor for- eign commerce or communication of the United States.”29

Of course, Geist’s claim is not that the United States has tamed the Internet. No one would assert that the United States has stopped crime on the network, or even behavior inconsistent with U.S. law. But the attitude and theory that animates U.S.prosecution has no conceptual limit.On the theory the United States advances, there is no behavior anywhere that at

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least in principle the United States can’t reach. (Though there are many who believe international law restricts the United States more than it acknowledges.30)

Itmaybe that thisdominanceby theUnitedStateswill continue forever. But I doubt it. There is a growing desire among many governments around the world to check the power of the United States. In 2005, some of these government tried to wrest control of ICANN (Internet Corporation for Assigned Names and Numbers ) from U.S. influence.This resistance, as well as ahealthydoseof sovereignself-respect,will increasinglypush fora regime that better balances the interests of the whole world.

The Many Laws Rule (and the technology to make it possible)

So what would a more balanced regime look like? Return to the conflict that began this chapter. On the one hand, France

doesn’twant its citizensbuyingNaziparaphernalia, theUnitedStatesdoesn’t want its citizens watching“free”TV.On the other hand,France doesn’t have anything against “free”TV, and the United States doesn’t have the constitu- tional power to block its citizens from buying Nazi paraphernalia. It’s some way to give France what it wants (and doesn’t want), and to give the U.S. what it wants (and can’t want)?

This is not an issue limited to France and the United States. As Victor Mayer-Schonberger and Teree Foster have written, about speech regulation:

Nationalrestrictionsof freedomof speechonthe[Internet]arecommonplacenot

only in the United States, but also around the globe. Individual nations, each

intent upon preserving what they perceive to be within the perimeters of their

national interests,seektoregulatecertain formsof speechbecauseof content that

is consideredreprehensibleoroffensive tonationalwell-beingorcivic virtue.31

Is thereageneral solution(in thegovernment’s eyesat least) to thisprob- lem?

Well, imagine first that something like the IdentityLayer that Idescribed inChapter4 finds its footing.And imagine that the ID layermeans that indi- viduals are able to certify (easily and without necessarily revealing anything else) their citizenship. Thus, as you pass across the Web, attached to your presence is a cryptographic object that reveals at least which government claims you.

Second, imagine an international convention to populate a table with any rules that a government wants to apply to its own citizens while those citizens

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areelsewhere in theworld.SotheFrench,forexample,wouldwantNazimate- rialblocked; theAmericanswouldwantpornblocked toanyoneunder18,etc. The tablewould thenbepublic andavailable toany serveron thenetwork.

Finally, imaginegovernments start requiringserverswithin their jurisdic- tion to respect the rules expressed in the table. Thus, if you’re offering Nazi material,andaFrenchcitizenentersyour site,youshouldblockher,but if she is aU.S.citizen,youcanserveher.Eachstatewould thusberestricting thecit- izensof other states as those stateswanted.Butcitizens fromitsnationwould enjoy the freedoms thatnationguarantees.Thisworldwould thusgraft local rules onto life in cyberspace.

Consider a particular example to make the dynamic clearer: Internet gambling.32 Minnesota has a strong state policy against gambling.33 Its legis- laturehasbanned its citizens fromgambling,and its attorneygeneralhasvig- orously enforced this legislative judgment—bothbyshuttingdowngambling sites in the state and by threatening legal action against sites outside of the state if they let citizens from Minnesota gamble.

This threat, somewill argue,canhavenoeffectongamblingonthe Inter- net, nor on the gambling behavior of Minnesota citizens.34 The proof is the story of Boral: Imagine a gambling server located in Minnesota.When Min- nesota makes gambling illegal, that server can move outside of Minnesota. From the standpoint of citizens in Minnesota, the change has (almost) no effect. It is just as easy toaccess a server located inMinneapolis asone located in Chicago. So the gambling site can easily move and keep all its Minnesota customers.

Suppose that Minnesota then threatens to prosecute the owner of the Chicago server. It is relatively easy for the attorney general to persuade the courtsof Illinois toprosecute the illegal server inChicago(assuming it could be shown that the behavior of the server was in fact illegal). So the server simplymoves fromChicago toCayman,making itone stepmoredifficult for Minnesota toprosecutebut stillnomoredifficult forcitizensof Minnesota to get access.NomatterwhatMinnesotadoes, it seems theNethelps its citizens beat the government. The Net, oblivious to geography, makes it practically impossible for geographically limited governments to enforce their rules.

However, imagine the ID layer that Idescribedabove, inwhicheveryone can automatically (and easily) certify their citizenship. As you pass onto a site, the site checks your ID.Thus thegambling site couldbegin to condition access upon whether you hold the proper ID for that site—if you are from Minnesota and this is a gambling site the site does not let you pass. This processoccurs invisibly,ormachine tomachine.All theuserknows is that she has gotten in,or if she has not, then why.35

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In this story, then, the interestsof Minnesotaare respected.Its citizensare not allowed to gamble. But Minnesota’s desires do not determine the gam- bling practices of people from outside the state: Only citizens of Minnesota are disabled by this regulation.

This is regulation at the level of one state, for one problem. But why wouldother states cooperatewithMinnesota?Whywouldanyother jurisdic- tion want to carry out Minnesota’s regulation?

Theanswer is that theywouldn’t if thiswere theonly regulationat stake. But it isn’t. Minnesota wants to protect its citizens from gambling, but New York may want to protect its citizens against the misuse of private data.The European Union may share New York’s objective; Utah may share Min- nesota’s.

Eachstate, inotherwords,has itsownstake incontrollingcertainbehav- iors, and thesebehaviorsdiffer.But thekey is this:Thesamearchitecture that enables Minnesota to achieve its regulatory end can also help other states achieve their regulatory ends. And this can initiate a kind of quid pro quo between jurisdictions.

The pact would look like this: Each state would promise to enforce on serverswithin its jurisdiction the regulationsof other states for citizens from those other states, in exchange for having its own regulations enforced in other jurisdictions. New York would require that servers within New York keep Minnesotans away from New York gambling servers, in exchange for Minnesota keeping New York citizens away from privacy-exploiting servers. Utah would keep EU citizens away from privacy-exploiting servers, in exchange for Europe keeping Utah citizens away from European gambling sites.

This structure, in effect, is precisely the structure that is already in place for regulating interstategambling.According to federal law, interstate Internet gambling isnotpermittedunless theuser is calling fromagambling-permis- sive state into another gambling-permissive state.36 If the user calls from a gambling-restrictive state or into a gambling-restrictive state, he or she has committed a federal offense.

The samestructure couldbeused to support local regulationof Internet behavior.With a simple way to verify citizenship, a simple way to verify that servers are discriminating on the basis of citizenship, and a federal commit- ment to support such localdiscrimination,wecould imagineanarchitecture that enables local regulation of Internet behavior.

And if all this could occur within the United States, it could occur betweennationsgenerally.There is the sameinterest internationally inenforc- ing local lawsas there isnationally—maybeevenmore.And thus in thisway,

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an ID-rich Internet would facilitate international zoning and enable this structure of international control.

Sucha regimewould returngeographical zoning to theNet. Itwould re- impose borders on a network built without those borders. If would give the regulators in Hungary and Thailand the power to do what they can’t do just now—control their citizens as they want. It would leave citizens of the United States or Sweden as free as their government has determined they should be.

To those who love the liberty of the original Net, this regime is a night- mare. It removes the freedomtheoriginal architectureof the Internet created. It restores the power to control to a space designed to avoid control.

I too love the libertyof theoriginalNet.Butas Ihavebecomeskepticalof short-cuts to the policy I like—short-cuts, meaning devices that produce a particular result without effective democratic support—I’m hesitant to con- demn this regime. Of course, no democratic government should permit the will of a nondemocratic government to be reflected in a zoning table. We shouldn’t help totalitarian regimes repress their citizens.But within a family of democracies, sucharegimemighthelppromotedemocracy. If a restriction on liberty is resented by a people, let the people mobilize to remove it.

Of course, my view is that citizens of any democracy should have the freedom to choose what speech they consume. But I would prefer they earn that freedombydemanding it throughdemocraticmeans thanthata techno- logical trick give it to them for free.

But whether or not you,or I, like this regime,my argument at this point ispredictive.This regime isanatural compromisebetweentworesults,neither of which governments accept—governments will neither accept a world where real space laws don’t affect cyberspace, nor a world where the rule of one government, or of a few large governments, controls the world. This regime gives each government the power to regulate its citizens; no govern- ment should have the right to do anything more.

Thisbalance is alreadybeing struckprivatelyon theNet—thoughthere’s significant resistanceanduneaseabout it.As I’vealreadydescribed, in January 2005,Googleannounced that itwasgiving something to theChinesegovern- ment ithas refused togiveanyoneelse in theworld—aversionof theGoogle search engine that blocks content the Chinese government doesn’t want its citizens to see.37 Thus, if you search on “democracy” or “human rights” on Google.cn,youwouldn’t findwhatyou’ll find if yousearch in thesamewayon Google.com.(Wikipedianowkeepsa list of wordsblockedby searchengines in China.38) Thus,Google would effectively remake the Internet for the Chi- nese according to the values the Chinese government pushes.

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I understand the motive (profit). I certainly understand the justification (itwill speedChina toa realdemocracy).Butwhetherornotyoubelieve this balance is right in the context of Communist China, it certainly has more justification when we’re describing agreements among democratic nations. What the Chinese do to its journalists is, in my view, wrong. If a Chinese publisher offered to publish this book in China only on the condition that I omitted thisparagraph,I certainlywouldn’t.But Ihaveadifferentviewabout rules imposed by France or Italy.

One importantconsequenceof thisarchitecture—indeed,perhaps reason enoughtooppose it—is that itwillmakeregulationeasier.Andtheeasier it is to regulate, the more likely regulation is.

Yet this is the trade-off—between cost and the willingness to regulate— we have seen again and again.Cost for the government is liberty for us.The higher the cost of a regulation, the less likely it will be enforced. Liberty dependson the regulation remainingexpensive.Liberty comeswith friction.

When it becomes easyor cheap to regulate,however, this contingent lib- erty is at risk.Wecanexpectmoreregulation.In thesecases, if wewant topre- serve liberty, we will need to develop affirmative arguments for it. We will need these affirmative arguments toprevent identity-based regulationof the Net.As I explain in thebalanceof thisbook, there isbotha surprisinglygreat desire fornations toembrace regimes that facilitate jurisdiction-specific reg- ulation and a significant reason why the costs of regulation are likely to fall. We should expect, then, that there will be more such regulation.Soon.

The effect, in short,would be to zone cyberspace based on the qualifica- tionscarriedby individualusers. Itwouldenableadegreeof controlof cyber- space that few have ever imagined. Cyberspace would go from being an unregulable space to, depending on the depth of the certificates, the most regulable space imaginable.

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P A R T F I V E

r e s p o n s e s

Theargumentof Part Iwas that theunregulabilityof theoriginal Internetwill pass.Architectures will develop to make behavior there regulable again.Part II described one aspect of that regulability—technology. “Code” will be an increasingly important part of that regulation,directly enforcing the control the lawtypically achieves through threats.Part III thenconsidered threecon- texts in which changing technology would render ambiguous our commit- ments to fundamentalvalues.This I calleda latentambiguity.Howweprotect IP, or privacy, or free speech will depend upon fundamental choices our framersdidn’tmake.Part IVthenmappedthis conflict to jurisdictions.Again, the lesson circles back to Part I:The tendency of government will push to an evermore regulableNet, this time to return the zonesof geography toabor- derless Internet.

Throughout these four parts, my central objective has been to force a recognition that is obviousonce remarked: that there are choices tobemade abouthowthisnetworkevolves.Thesechoiceswill affect fundamentallywhat values are built into the network.

The question for this part is whether we’re capable of making those choices. My argument is that we’re not. We have so completely passed off questions of principle to the judicial branch, and so completely corrupted

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our legislative process with the backhand of handouts, that we confront this moment of extraordinary importance incapable of making any useful deci- sions.Wehavebeencaughtoff-guard,drunkonthepolitical indulgenceof an era, and the most we may be able to do is stay on our feet until we have time to sober up.

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S I X T E E N

t h e p r o b l e m s w e f a c e

THERE ARE CHOICES THAT WILL DETERMINE HOW CYBERSPACE IS.BUT, IN MY VIEW, weAmericans are disabled from making those choices.We are disabled for three very different reasons. The first is tied to the limits we place on courts; the second to the limits we have realized in legislatures; and the third to the limits in our thinking about code. If choice must be made, these limits mean we will not be making that choice.We are at a time when the most significant decisions about what this space will be are being made, but we don’t have the institutions, or practice, to evaluate or readily alter them.

In this chapter, I describe these problems, and in Chapter 17, I sketch three solutions to them. Neither description will be complete, but both shouldbe suggestive.Theproblems that cyberspace reveals arenotproblems with cyberspace.They are real-space problems that cyberspace shows us we must now resolve—or maybe reconsider.

PROBLEMS WITH COURTS

There are two types of constitutions, one we could call codifying, and the other transformative. A codifying constitution tries to preserve something essential about the constitutional or legal culture in which it is enacted—to protect that cultural attributeagainst changes in the future.A transformative constitution(oramendment)does theopposite: It tries tochange something essential in theconstitutionalor legal culture inwhich it is enacted—tomake lifedifferent in the future, to remake somepartof theculture.The symbolof the codifying regime is Ulysses tied to the mast; the symbol of the transfor- mative is revolutionary France.

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Our Constitution has both regimes within it. The Constitution of 1789—before the first ten amendments—was a transformative constitu- tion. It “called into life” a new form of government and gave birth to a nation.1 The Constitution of 1791—the Bill of Rights—was a codifying constitution.Against the background of the new constitution, it sought to entrenchcertainvalues against future change.2 TheCivilWar amendments were transformative again.They aimed to remake part of what the Ameri- can social and legal culture had become—to rip out from the American soul a tradition of inequality and replace it with a tradition and practice of equality.3

Of these two regimes, the transformative is clearly the more difficult to realize. A codifying regime at least has inertia on its side; a transformative regime must fight. The codifying regime has a moment of self-affirmation; the transformative regime ishauntedwith self-doubtandvulnerable tobeing undermined by targeted opposition.Constitutional moments die, and when they do, the institutions charged with enforcing their commands, such as courts, face increasingpolitical resistance.Flashesof enlightenmentnotwith- standing, thepeople retainorgoback to theiroldways,andcourts find ithard to resist.

Our own constitutional history reveals just this pattern. The extraordi- nary moment after the Civil War—when three amendments committed to civil equality were carved into our Constitution’s soul—had passed by 1875. The nation gave up the struggle for equality and turned to the excitement of the IndustrialRevolution.Lawsenforcing segregationwereupheld;4 the right of AfricanAmericans tovotewasdenied;5 laws enforcingwhatwas later seen to be a new kind of slavery were allowed.6 Only after one hundred years of continued inequality did the Supreme Court again take up the cause of the CivilWaramendments. Itwouldnotbeuntil Brown v. Board of Education, in 1954, that the Court again recognized the transformative idea of the Civil War amendments.7

One could criticize the Court for this century of weakness. I think it is more important to understand its source. Courts operate within a political context.They are the weakest branch of resistance within that political con- text. For a time, they may be able to insist on a principle greater than the moment,but that time will pass. If the world does not recognize the wrong- nessof its racistways,evenastrongstatementof principleenactedwithinour Constitution’s textpermits acourtonly somuchfreedomtoresist.Courtsare subject to theconstraintsof what“everyone”withavoiceandtheresources to make itheardbelieves is right,even if what“everyone”believes is inconsistent with basic constitutional texts.

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Life is easierwithacodifyingconstitution,because there is a tradition that the text is justmeant toentrench.If this tradition is long-standing, then there is hope that it will remain solid as well.

Butevenacodifyingconstitution facesdifficulties.Codificationnotwith- standing, if the passions of a nation become strong enough, there is often little that courts are willing to do.The clarity of the FirstAmendment’s pro- tection of freedom of speech notwithstanding, when the speech was that of communists and anarchists, the government was allowed the power to pun- ish.8 The presumption of innocence and equality notwithstanding, when Japan bombed Pearl Harbor, the government was allowed to shuttle every West CoastAmerican of Japanese descent into concentration camps.9

Theseare the realitiesof courts inademocratic system.Welawyers like to romanticize the courts, to imagine them as above influence. But they have neverbeenso,completelyor forever.Theyare subject toapolitical constraint that matters.They are an institution within a democracy, and no institution within a democracy can be the enemy of the people for long.

It is against this background that we should think about the problems raised in Parts 3 and 4. In each case, my argument was that we will need to choose the values we want cyberspace to embrace. These questions are not addressed by any clear constitutional text or tradition. In the main, they are questionsaffecting thecodifyingpartof our tradition,but theyarealsocases of latent ambiguity.There is no“answer”to them in the sense of a judgment that seems to have been made and that a court can simply report.An answer must be fixed upon,not found;made,not discovered; chosen,not reported.

This creates difficulties for an American court.We live in the shadow of theSupremeCourtof Chief JusticeEarlWarren.Manypeople think(but Iam not one of this crowd) that his was a wildly activist court, that it “made up” constitutional law and imposed its own“personal values”onto the political and legal system.ManyviewedtheRehnquistCourtasprovidingabalance to this activism of old.

I thinkthisviewiswrong.TheWarrenCourtwasnot“activist”inanysense inconsistent with a principle of interpretive fidelity, and the Rehnquist Court wasnolessactivist in thatsense thantheWarrenCourt.Thequestion,however, isnotwhatwastrue; thequestioniswhatpeoplebelieve.Whatwebelieve is that thepastwasmarkedbyactivism,and that this activismwaswrong.

At least wrong for a court. The opponents of the Warren Court are not just conservatives.Someare liberalswhobelieve that theCourtwasnotacting judicially.10 Theseopponentsbelieve that theCourtwasmaking,not finding, constitutional law—that itwasguidedbynothingmore thanwhether it could muster a majority.

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Anycourt risks seeming likea“WarrenCourt”when itmakes judgments thatdon’t seemto flowplainlyorobviously froma legal text.Anycourt isvul- nerablewhen its judgments seempolitical.Against thebackgroundof history, ourSupremeCourt isparticularly vulnerable to this view,and theCourtwill feel the reaction when its actions seem political.

Mypoint isnot that theCourt fears retaliation;ourCourt is securewithin our constitutional regime.11 The Court feels the reaction to its seemingly political decisions because of its own image of its proper role. In its view, its role is not to be“political”; its conception is that it is to be a faithful agent, simply preserving founding commitments until they have changed.12

But when—as in the cases of latent ambiguity—there are no founding commitments to preserve, any attempt at translation will seem to be some- thingmore.Andwhenever it seemsas if theCourt isdoingmore thansimply preserving foundingcommitments, theperception is created that theCourt is simply acting to ratify its ownviewsof aproper constitutional regime rather than enforcing judgments that have been constitutionalized by others.13 In a word, it seems to be acting“politically.”

But what does “political” mean here? It does not mean simply that the Court is making value or policy choices. The claim is not that values are improper reasons for a court to decide a case.To the contrary:Value choices orpolicychoices,properly ratifiedby thepoliticalprocess,areappropriate for judicial enforcement.Theproblemwith thechoices incasesof latentambigu- ity is that they do not seem to have been properly ratified by the political process.They reflect values,but the values do not seem to be taken from the Constitution.

“Political”thus refers to judgmentsnotclearly ratifiedandpresently con- tested.14 When thevery foundationsof a judgment are seen tobe fundamen- tally contested, and when there is no reason to believe that the Constitution takesapositiononthis contest, thenenforcingaparticularoutcomeof trans- lation will appear, in that context,political.15

Cyberspace will press this problem intensely.When a framing value can be translated with some clarity or certainty, the Court can act in a way that resists present majorities in the name of founding commitments. But when ambiguities are latentandachoice really seems tobeachoice, translationwill not suffice.My claim is that the Court will not be the locus for that choice.

Thismight seemoverlypessimistic,especiallywhenweconsider the suc- cess in strikingdowntheCommunicationsDecencyAct.16 But that case itself reveals the instability that I fear will soon resolve itself into passivity.

Throughout both lower court opinions, the courts spoke as if they were “finding” facts about the nature of cyberspace. The “findings” determined

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the constitutional result, andboth courts reported their findingswith a con- fidence that made them seem set in stone.

These findings, for themostpart,wereexceptionallygooddescriptionsof where cyberspace was in 1996.But they did not tell us anything about where cyberspace is going or what it could be. The courts spoke as if they were tellingusabout thenatureof cyberspace.Butaswe’ve seen,cyberspacehasno intrinsic nature. It is as it is designed.By striking down Congress’s efforts to zonecyberspace, thecourtswerenot tellinguswhat cyberspace isbutwhat it should be. They were making, not finding, the nature of cyberspace; their decisions are in part responsible for what cyberspace will become.

At first it will not seem this way.When we confront something new, it is hard toknowwhat isnaturalorgivenabout it,andwhatpart canbechanged. Butover timecourtswill see that there is little in cyberspace that is“natural.” Limitsonthearchitectureof cyberspace that theyhavereportedas findings in one opinion will be seen to have been “design choices” later on. What was “impossible” will later become possible, and as these shifts in the possible occur, courtswillmoreandmore feel that they cannot really saywhat cyber- space is.They will see that their findings affect what they find.They will see that they are in part responsible for what cyberspace has become.

This is Heisenberg applied to constitutional law.And as courts notice it, as they have in other areas, they will increasingly defer to the political branches: If these judgmentsarepolicy, theywill be left topolicymakers,not judges.17

One can hardly blame judges for this. Indeed, in some cases their defer- ence should be encouraged.18 But we should not underestimate its conse- quences. In the future legislatureswill act relativelyunconstrainedbycourts; thevalues thatwemight call constitutional—whether enacted intoourCon- stitution or not—will constrain these legislatures only if they choose to take them into account.

Before we turn to what we might expect from legislatures, consider one otherproblemwithcourts—specifically, theproblemconfrontingourconsti- tutional tradition as the Constitution moves into the context of cyberspace. This is the problem of“state action.”

Architectures constitute cyberspace; these architectures are varied; they variously embed political values; some of these values have constitutional import.Yet for the most part—and fortunately—these architectures are pri- vate. They are constructed by universities or corporations and implemented onwiresno longer fundedby theDefenseDepartment.Theyareprivate and therefore traditionallyoutside the scopeof constitutional review.Theconsti- tutional values of privacy, access, rights of anonymity, and equality need not

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trouble this new world, since this world is “private” and the Constitution is concerned only with“state action.”

Whythis shouldbe isnotclear tome.If code functionsas law,thenweare creating the most significant new jurisdiction since the Louisiana Purchase. Yet we are building it just outside the Constitution’s review. Indeed, we are building it just so that the Constitution will not govern—as if we want to be free of the constraints of value embedded by that tradition.

So far in thisbook,Ihavenot reliedverymuchonthisprivate/publicdis- tinction.You might say I have ignored it.19 But I have ignored it not because it makes no sense, but because I don’t know how it could be carried over to the regulation of cyberspace. The concept of state action itself presents a latent ambiguity, and I don’t think we have a clear idea of how to resolve it.

That latentambiguity is this:TheConstitutionwasdrawnata timewhen basic architectureswere set.The framers foundthe lawsof nature, the lawsof economics, the“natural law”of man; they were not made by government or man.

These architectures constrained, of course, and their constraint was a “regulation.”But the degree to which they could be used as tools of self-con- sciouscontrolwas limited.Townplanningwasnot limited,20 andbeyond lay- ing out a space, there was little these founders could do about the rules that would govern the built environment of this space.

Cyberspace,however,hasdifferentarchitectures,whose regulatorypower are not so limited.An extraordinary amount of control can be built into the environment that people know there. What data can be collected, what anonymity ispossible,what access is granted,what speechwill beheard—all these are choices,not“facts.”All these are designed,not found.

Our context, therefore, is very different.That the scope of constitutional reviewwas limited in the first contextdoesnot compel it tobe similarly lim- ited in the second.It couldbe,butwecannotknowthatmerely fromitsbeing so limited in a very different context.

We have no answer from the framers, then, about the scope of state action.Wemustdecideonourownwhatmakesbetter senseof our constitu- tional tradition.Is itmore faithful toour tradition toallowthese structuresof control, the functional equivalentof law, todevelopoutside the scopeof con- stitutional review?Orshouldweextendconstitutional reviewto thestructures of private regulation, topreserve those fundamental valueswithinour tradi- tion?

These are hard questions, though it is useful to note that they are not as hard toask inotherconstitutional regimes.TheGermantradition, for exam- ple, would have less trouble with the idea that private structures of power

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mustultimatelybe checkedagainst fundamental constitutional values.21 The German tradition,of course, is not our own.But the fact that they have sus- tained this view suggests that we can make space for the constraint of the Constitution without turning everything into a constitutional dispute. Rea- soneddecision ispossiblewithout turningeveryprivatecontract intoa federal case.

Nevertheless, it will take a revolution inAmerican constitutional law for theCourt, self-consciously at least, tomovebeyond the limitsof state action. Scholars have sketched how it could without radically remaking American law,butothershaveargued it couldnotwithout radically remaking theAmer- ican Constitution.22

But my reason for ignoring the state action doctrine is not so much to radically remake law as it is to give us a clearer sense of how we should make the law in thisnewspace in the firstplace.AsPaulBermanputs it, the reason to ignore the state action doctrine for now is that:

. . . however such questions get resolved, at least we will have been forced to

grapple with the substantive constitutional question and to articulate the com-

peting values at stake.The state action doctrine, in contrast, takes such debates

off the tablealtogetherbyasserting that theactivityat issue isprivateandthere-

fore not a fit subject for the constitutional discourse. If one believes that such

discourse, inandof itself,has cultural value, thenapplicationof the stateaction

doctrine comes with a significant cost.23

Again, it remains likely that we will continue to suffer this cost. It is in these two ways then that courts are stuck.They cannot be as cre-

ative, and the scope of their constitutional review has been narrowed (artifi- cially, I believe) to exclude the most important aspect of cyberspace’s law—code.If therearedecisionsaboutwhereweshouldgo,andchoicesabout the values this space will include, then these are choices we can’t expect our courts to make.

PROBLEMS WITH LEGISLATORS

Ataconference in formerSovietGeorgia, sponsoredbysomeWesternagency of democracy,anIrish lawyerwas trying toexplain to theGeorgianswhatwas so great about a system of “judicial review”(the system by which courts can strikedowntheactsof aparliament).“Judicial review,”heenthused,“iswon- derful.Whenever thecourt strikesdownanactof parliament, thepeoplenat- urallyalign themselveswith thecourt,against theparliament.Theparliament,

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people believe, is just political; the supreme court, they think, is principled.” AGeorgian friend,puppy-democrat thathewas,asked,“Sowhy is it that ina democracy the people are loyal to a nondemocratic institution and repulsed by the democratic institution in the system?”“You just don’t understand democracy,”said the lawyer.

When we think about the question of governing cyberspace—when we think about the questions of choice I’ve sketched, especially those raised in Part III—we are likely to get a sinking feeling. It seems impossibly difficult, this idea of governing cyberspace.Who is cyberspace? Where would it vote? The very idea seems abhorrent to cyberspace itself.

But theproblemhere isnotwithgovernance incyberspace.Ourproblem is with governance itself.There is no special set of dilemmas that cyberspace willpresent; thereareonly the familiardilemmasof moderngovernance,but inanewplace.Somethingsaredifferent; the targetof governance isdifferent; the scopeof international concerns isdifferent.But thedifficultywithgover- nance will not come from this different target; the difficulty comes from our problem with governance.

Throughout this book, I’ve worked to identify the choices that cyber- space will present. I’ve argued that its very architecture is up for grabs and that, depending on who grabs it, there are several different ways it could turnout.Clearly someof these choices are collective—abouthowwecollec- tively will live in this space.One would have thought that collective choices wereproblemsof governance,but very fewof uswouldwant government to make these choices.Government seems the solution tonoproblemwehave, and we should understand why this is. We should understand the Irish lawyer in all of us.

Our skepticismisnotapointaboutprinciple.Mostof usarenot libertar- ians.We may be antigovernment,but for the most part we believe that there arecollectivevalues thatought to regulateprivateaction.(“Collective”just in the sense that all individuals acting alonewill produce less of that value than if that individual actioncouldbecoordinated.)Wearealsocommitted to the idea that collective values should regulate the emerging technicalworld.Our problemis thatwedonotknowhowit shouldberegulated,orbywhom.And we fear that the values that will be embraced are not the correct ones.

Like the Irish lawyer, we are weary of governments. We are profoundly skeptical about the product of democratic politics.We believe, rightly or not, that these processes have been captured by special interests more concerned with individual thancollective values.Althoughwebelieve that there is a role for collective judgments,we are repulsed by the idea of placing the design of somethingas important as the Internet into thehandsof governments.

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The examples here are many, and the pattern is arresting. The single unifying message in the government’s own description of its role in cyber- space is that it should simplygetoutof theway. In theareaof Internet com- merce, thegovernment says,commerce should takecareof itself. (Of course, at the same time, the government is passing all sorts of laws to increase the protections for intellectual property.) The government is also seemingly enthusiastic about regulating “indecent” content regardless of the thriving commerce in it.

Aperfect exampleof thispoint is thegovernment’shand-off of controlof themanagementof thedomainnamesystem.For sometimethegovernment had been thinking about how best to continue the governance or control of the domain name system.24 It had originally farmed the work out under NationalScienceFoundationcontracts, first toaCalifornianonprofitorgan- ized by the late Jon Postel, and then to a private for-profit corporation,Net- work Solutions.

Thecontractsweredue to lapse in1998,however,and for ayear thegov- ernment thought in earnest aboutwhat it shoulddo. In June1998 it released a White Paper calling for the establishment of a nonprofit corporation devoted to the collective interest of the Internet as a whole and charged with deciding thepolicyquestions relating togoverning thedomainnamesystem. Policy-makingpowerwas tobe takenaway fromgovernmentandplacedwith anorganizationoutside its control. In1998, thatpolicywas effected through the creation of the Internet Corporation for Assigned Names and Numbers (ICANN),which, according to its webpage, is

dedicated to preserving the operational stability of the Internet; to promoting

competition; toachievingbroadrepresentationof global Internet communities;

andtodevelopingpolicyappropriate to itsmission throughbottom-up,consen-

sus-based processes. ICANN,a public benefit, non-profit entity, is the interna-

tional organization responsible for the management and oversight of the

coordinationof the Internet’sdomainnamesystemand itsunique identifiers.25

Thinkabout thekindsof questionsmyGeorgian friendmight askabout this move.A“nonprofit corporation devoted to the collective interest”? Isn’t that justwhatgovernment is supposed tobe?Aboardcomposedof represen- tative stakeholders? Isn’t thatwhataCongress is? Indeed,myGeorgian friend might observe that this corporate structure differs from government in only one salient way—there is no ongoing requirement of elections.

This is policy making vested in what is in effect an independent agency, butonewhollyoutside thedemocraticprocess.Andwhatdoes this sayabout

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us? What does it mean when our natural instinct is to put policy-making power in bodies outside the democratic process?

First, it reflects the pathetic resignation that most of us feel about the productsof ordinarygovernment.Wehave lost faith in the idea that theprod- uctof representativegovernmentmightbe somethingmore thanmere inter- est—that, to steal theopening line fromJusticeMarshall’s lastSupremeCourt opinion,power,not reason, is now the currency of deliberative democracy.26

We have lost the idea that ordinary government might work, and so deep is this despair that not even government thinks the government should have a role in governing cyberspace.

Iunderstand this resignation,but it is somethingwemustovercome.We must isolate the cause and separate it fromtheeffect. If wehate government, it is not because the idea of collective values is anathema. If we hate govern- ment, it is because we have grown tired of our own government. We have grown weary of its betrayals, of its games,of the interests that control it.But we must find a way to get over that weariness.

One central cause of the dysfunction of government is the corruption suggestedby thewaygovernment is elected. Idon’tmean“corruption”in the traditional sense that saps the energy from so many developing nations. I don’tbelievecongressmenareonthe take(California’sRandyCunninghamis an exception,of course27); I don’t believe their motives are impure.They are trying to do the best they can in the world they inhabit. But it is that world that is the problem.

For with that world,money controls attention.To become a member of theHouseof Representatives,youhave to run. In2004, if youran inanopen district, then you spent on average $1,086,437. If you won, you spent $1,442,216. If you ran against an incumbent in 2004, then there’s a 97.5 per- cent chanceyoudidn’twin.(Onlyeight challengerswon.) In theSenate,only one challenger defeated a sitting senator in 2004. Incumbency means life tenure in theUnitedStates.Theaverage termforamemberof Congress rivals the average term for a Supreme Court Justice.28

Toraise thismoney,membersof Congressmust spendtheir timemaking those with money happy. They do this by listening to their problems, and sometimes, pushing legislation that will solve those problems. That sounds harmless enough, until you begin to realize just how much time they spend doing this fundraising.Former Senator Hollings estimated that one-third of a senator’s time is spent fundraising.29 That’s probably a significant underes- timate.30

Nowjust thinkabouthowabsurd thesepriorities are.Congressmenwork for us. If an employee of a restaurant spent 33 percent of her time arranging

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toget towork,she’dbe fired.But that’s essentiallywhathappens inWashing- ton. The most significant chunk of time for members of Congress is time spent to raise money to remain members of Congress. Is this really what we pay them for?

Theproblemhere isnot somuchthatmembersof Congress aren’tdoing their work. The problem is the way their work gets queered by this need to raisemoney.Theeasiest targets for fundraisingare theclientsof the lobbyists, and the lobbyistshave lotsof ideasabouthowtobendthe lawtobenefit their clients.

And so Congress bends, and the law gets changed to benefit the most powerful in the economy. This is not capitalism as much as lobby-ism. Our economy is defined by a combination of laws benefiting some and power benefiting some.

Tocrack through lobbyism,youneedaway toget theattentionof mem- bers of Congress. But until the system is changed, the only way to get their attention is money. This is the cycle. Its results for democracy are vicious. OurCongress seesonlywhat a small setwant themto see.Andwhat they see often has no obvious connection to the truth.

If there is a decision to be made about how cyberspace will grow, then that decision will be made. The only question is by whom.We can stand by and do nothing as these choices are made—by others, by those who will not simply standby.Or wecan try to imagine a worldwhere choice can again be made collectively and responsibly.

PROBLEMS WITH CODE

At a Harvard workshop around the time the first edition of this book was published, Jean Camp, a Harvard computer scientist who taught in the Kennedy School of Government, said that I had missed the point.The prob- lem, she said, isnot that“code is law”or that“coderegulates.”Theproblemis that“we haven’t had a conversation about how code regulates.”And then to the restof theaudience, she said,“Didall of you like thedebatewehadabout whether MicrosoftWord documents would carry in them a unique identify- ing number?Was that a satisfying debate?”

Her ironycarriedwith it an important insight,andan interestingmistake. Of course, for the computer scientist code is law. And if code is law, then obviously thequestionweshouldask is:Whoare the lawmakers?Whowrites this law that regulates us? What role do we have in defining this regulation? What right do we have to know of the regulation? And how might we inter- vene to check it?

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All that is perfectly obvious for someone who thinks and breathes the regulationsof code.But toa lawyer,bothCampandI, throughout thisbook, havemadeaverybasicmistake.Code isnot law,anymore than thedesignof an airplane is law.Code does not regulate, any more than buildings regulate. Code is not public, any more than a television is public.Being able to debate and decide is an opportunity we require of public regulation, not of private action.

Camp’s mistake is a good one. It is a mistake more of us should make more of the time.Because while of course code is private, and of course dif- ferent fromtheU.S.Code, itsdifferencesdon’tmeantherearenot similarities as well. “East Coast Code”—law—regulates by enabling and limiting the options that individuals have, to the end of persuading them to behave in a certain way.“West Coast Code”does the same.East Coast Code does this by increasing thecost to thosewhowoulddeviate fromtherules requiredby the code. West Coast Code does the same. And while we might argue that East CoastCode ismoreprevalent—that it regulates andcontrols a far largerpart of our lives—that is a difference in degree, not kind. It’s a reason to be bal- anced in our concern,not to be unconcerned.

Of course, there are differences between law and code. I don’t think that everything isnecessarilypublic,or that theConstitutionshouldregulateevery aspect of private life. I don’t think it is a constitutional issue when I turn off RushLimbaugh.But to say that there shouldbeadifference isnot to say that thedifference shouldbeas absolute aspresent constitutional thinkingmakes it. When we lawyers tell the Jean Camps of the world that they are simply making a “mistake” when they bring the values of public law to code, it is rather we who are making the mistake.Whether code should be tested with theseconstraintsof publicvalue is aquestion,notaconclusion.Itneeds tobe decided by argument,not definition.

This won’t be easy, of course. Code is technical; courts aren’t well posi- tioned toevaluate such technicality.But even so, the failure isnot even to try. The formalisminAmerican law,whichputsbeyondreviewthese structuresof control, is a thirdpathology that inhibits choice.Courts aredisabled, legisla- tures pathetic, and code untouchable. That is our present condition. It is a combination that isdeadly for action—amix that guarantees that little good gets done.

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S E V E N T E E N

r e s p o n s e s

WE NEED A PLAN. I’VE TOLD A DARK STORY ABOUT THE CHOICES THAT A CHANGING cyberspace ispresenting,andaboutour inability to respond to these choices. I’ve linked this inability to three features of our present legal and political culture. In this short chapter, I consider three responses.These responses are nothingmore thansketches,but they shouldbeenoughtosuggest thenature of the changes we need to make.

RESPONSES OF A JUDICIARY

I’ve said that we should understand judicial hesitancy as grounded in pru- dence.When so much seems possible, and when a rule is not clearly set, it is hard for a court to look like a court as it decides what policies seem best.1

Although Iagreewith this idealof prudence ingeneral,weneed tomove its counsel along—toplace it incontext and limit its reach.Weshould isolate the source of the judge’s difficulty. Sometimes a certain hesitation before resolving thequestionsof theConstitution incyberspace finally,or firmly,or with any pretense to permanence, is entirely appropriate.But in other cases, judges—especially lowercourt judges—shouldbe stronger,because thereare many of them and because many are extraordinarily talented and creative. Theirvoiceswould teachus somethinghere,even if their rulingswere tempo- rary or limited in scope.

In casesof simple translation (where there areno latent ambiguities and our traditionseemstospeakclearly), judges should firmlyadvancearguments that seek topreserveoriginal valuesof liberty inanewcontext. In these cases there is an important space foractivism.Judges should identifyourvaluesand defend them,notnecessarilybecause thesevalues are right,butbecause if we

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ignore them,we should do so only because they have been rejected—not by a court but by the people.

Incaseswhere translation isnot sosimple (cases thathave latentambigu- ities), judges, especially lower court judges, have a different role. In these cases, judges should kvetch. They should talk about the questions these changes raise,and they should identify the competingvalues at stake.Even if the decision they must adopt in a particular case is deferential or passive, it shouldbedeferential inprotest.Thesecasesmaywellbeaplace forprudence, but to justify theirpassivity andcompensate forallowingrights claims to fail, judges should raise before the legal culture the conflict presented by them. Hard cases need not make bad law, but neither should they be treated as if they are easy.

That is the simplest response to theproblemof latent ambiguity.But it is incomplete. It forces us to confront questions of constitutional value and to choose. A better solution would help resolve these questions. While it will never be the job of the courts to make final choices on questions of value,by raising these questions the courts may inspire others to decide them.

This is the idea behind the doctrine of a second look outlined twenty years ago by Guido Calabresi, a professor at the time who is now a judge.2

Brutally simplified, the idea is this: When the Supreme Court confronts issues that present open, yet fundamental questions of value, it should be open about the conflict and acknowledge that it is not plainly resolved by the Constitution.But the Court should nonetheless proceed to resolve it in thewaymost likely to inducedemocratic reviewof the resolution. If the res- olution induces the proper review, the Court should let stand the results of that review. The most the Court should do in such cases is ensure that democracy has its say; its job is not to substitute its values for the views of democrats.

Many ridicule this solution.3 Many argue that the framers clearly had nothing like this inmindwhentheyestablishedaSupremeCourtandpermit- ted judicial review.Of course theydidnothave this inmind.Thedoctrineof a second look isnotdesigned for theproblems the framershad inmind.Asa response to the problems of latent ambiguities, it itself reveals a latent ambi- guity.

We might deny this ambiguity. We might argue that the framers envi- sioned that the Court would do nothing at all about latent ambiguities; that in such contexts the democratic process, through ArticleV, would step in to correct a misapplication or to respond to a changed circumstance.That may wellhavebeen theirview.But Idon’t think this intent is clear enoughto fore- close our consideration of how we might best confront the coming series of

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questions on the application of constitutional value to cyberspace. I would rathererronthesideof harmlessactivismthanonthesideof debilitatingpas- sivity. It is a tiny role for courts to play in the much larger conversation we need to have—but to date have not started.

RESPONSES FOR CODE

A second challenge is confronting the law in code—resolving, that is, just howwethinkabout the regulatorypowerof code.Hereareanumberof ideas that together would push us toward a world where regulation imposed through code would have to satisfy constitutional norms.

Here again is the link to open code. In Chapter 8, when I described a kind of check that open code would impose on government regulation, I argued that itwasharder forgovernment tohide its regulations inopencode, and easier for adopters to disable any regulations the government imposed. Themovement fromclosed toopencodewas amovement fromregulable to less regulable. Unless you are simply committed to disabling government’s power, this change cannot be unambiguously good.

But there are two parts to the constraint that open code might impose; one is certainlygood,and theother isnotnecessarily terrible.The firstpart is transparency—the regulations would be known. The second part is resist- ance—thatknownregulationscouldbemoreeasily resisted.The secondpart neednot followfromthe first,and itneednotbedebilitating. Itmaybeeasier todisable the regulationsof code if the code is in theopen.But if the regula- tion is legitimate, the statecanrequire that itnotbedisabled.If itwants, it can punish those who disobey.

Compare the regulation of seatbelts. For a time the federal government required that new cars have automatic seatbelts. This was the regulation of code—the car would be made safer by regulating the code to force people to use seatbelts.Many people hated seatbelts, and some disabled them.But the virtue of the automatic seatbelt was that its regulation was transparent. No one doubted who was responsible for the rule the seatbelt imposed. If the statedidn’t like itwhenpeopledisabled their seatbelts, itwas free topass laws to punish them. In the end the government did not press the issue—not because it couldn’t,butbecause thepolitical costswouldhavebeen toohigh. Politics checked the government’s regulation, just as it should.

This is the most we can expect of the regulation of code in cyberspace. There is a trade-off between transparencyandeffectiveness.Code regulation in thecontextof opencode ismore transparentbutalso lessbinding.Govern- ment’spower toachieve regulatoryendswouldbeconstrainedbyopencode.

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There isanotherbenefit.Closedcodewouldmake it easier for thegovern- ment to hide its regulation and thus achieve an illicit regulatory end. Thus, there is no simple defeat of government’s ends but instead a trade-off— between publicity and power, between the rules’ transparency and people’s obedience. It is an important checkongovernmentpower to say that theonly rules it should imposeare those thatwouldbeobeyedif imposedtransparently.

Does this mean that we should push for open rather than closed code? Does it mean that we should ban closed code?

No.Itdoesnot followfromtheseobservations thatweshouldbanclosed codeor thatwemusthaveaworldwithonlyopencode.But theydopoint to the values we should insist on for any code that regulates. If code is a law- maker, then it should embrace the values of a particular kind of lawmaking.

The core of these values is transparency. What a code regulation does should be at least as apparent as what a legal regulation does. Open code would provide that transparency—not for everyone (not everyone reads code), and not perfectly (badly written code hides its functions well), but more completely than closed code would.

Some closed code could provide this transparency. If code were more modular—if a code writer simply pulled parts off the shelf to plug into her system,as if she were buying spark plugs for a car—then even if the code for thesecomponentswasclosed, the functionsandregulationof theendproduct would be open.4 Componentized architecture could be as transparent as an open code architecture, and transparency could thus be achieved without opening the code.

The best code (from the perspective of constitutional values) is both modularandopen.Modularity ensures thatbetter componentscouldbesub- stituted for worse. And from a competitive perspective, modularity permits greater competition in thedevelopmentof improvements inaparticular cod- ing project.

It isplausible,however, thatparticularbitsof codecouldnotbeproduced if theywereproducedasopencode, that closedcodemay sometimesbenec- essary for competitive survival. If so, then the compromise of a component system would permit something of the best of both worlds—some competi- tive advantage along with transparency of function.

I’ve argued for transparent code because of the constitutional values it embeds. I have not argued against code as a regulator or against regulation. But I have argued that we insist on transparency in regulation and that we push code structures to enhance that transparency.

The law presently does not do this. Indeed, as Mark Lemley and David O’Brien argue, the existing structure of copyright protection for software

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tends to push the development of software away from a modular structure.5

The law prefers opaque to transparent code; it constructs incentives to hide code rather than to make its functionality obvious.

Many have argued that the law’s present incentives are inefficient—that they tend to reduce competition in the production of software.6 This may wellbe right.But thegreaterperversity is againconstitutional.Our lawcreates an incentive to enclose as much of an intellectual commons as possible. It works against publicity and transparency, and helps to produce, in effect, a massive secret government.

Here is a place for concrete legal change.Without resolving the question of whether closed or open code is best,we could at least push closed code in adirection thatwould facilitate greater transparency.But the inertiaof exist- ing law—which gives software manufacturers effectively unlimited terms of protection—works against change.The politics are just not there.

RESPONSES OF A DEMOCRACY

Inhis rightly famousbook Profiles in Courage, then-Senator JohnF.Kennedy tells the story of DanielWebster,who, in the midst of a fight over a pact that he thought would divide the nation, said on the floor of the Senate, “Mr. President, Iwish to speak today,not as aMassachusettsman,noras aNorth- ern man,but as anAmerican . . .”7

When Webster said this—in 1850—the words “not as a Massachusetts man”hadasignificance thatweare likely tomiss today.Tous,Webster’s state- ment seemsperfectlyordinary.WhatelsewouldhebebutanAmerican?How else would he speak?

But these words came on the cusp of a new time in the United States. They came just at the moment when the attention of American citizens was shifting from their citizenship in a state to their citizenship in the nation. Webster spoke just as itwasbecomingpossible to identifyyourself apart from your state and as a member of a nation.

As I’ve said, at the founding citizens of the United States (a contested concept itself) were citizens of particular states first.They were loyal to their own states because their lives were determined by where they lived. Other states were as remote to them as Tibet is to us—indeed, today it is easier for us to go to Tibet than it was then for a citizen of South Carolina to visit Maine.

Over time,of course, this changed. In the struggle leadingup to theCivil War, in the battles over Reconstruction, and in the revolution of industry that followed, individual citizens’ sense of themselves as Americans grew. In

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those exchanges and struggles, a national identity was born.Only when citi- zens were engaged with citizens from other states was a nation created.

It is easy to forget these moments of transformation, and even easier to imagine that theyhappenonly in thepast.Yetnoonecandeny that the sense of being“an American”shifted in the nineteenth century, just as no one can deny that the senseof being“aEuropean”is shifting inEurope today.Nations are built as people experience themselves inside a common political culture. This change continues for us today.

We stand today just a few years before where Webster stood in 1850.We standonthebrinkof beingable tosay,“I speakasacitizenof theworld,”with- out the ordinary person thinking,“What a nut.”We are just on the cusp of a timewhenordinary citizenswill begin to feel the effectsof the regulationsof other governments, just as the citizens of Massachusetts came to feel the effectsof slaveryand thecitizensofVirginia cameto feel theeffectsof adrive for freedom. As Nicholas Negroponte puts it, “Nations today are the wrong size.They are not small enough to be local and they are not large enough to be global.” 8 This misfit will matter.

As we, citizens of the United States, spend more of our time and money in this space that is not part of any particular jurisdiction but subject to the regulations of all jurisdictions, we will increasingly ask questions about our status there.Wewillbegin to feel theentitlementWebster felt,asanAmerican, to speak about life in another part of the United States. For us, it will be the entitlement to speakabout life in anotherpart of theworld,grounded in the feeling that there is a communityof interests that reachesbeyonddiplomatic ties into the hearts of ordinary citizens.

What will we do then?When we feel we are part of a world, and that the worldregulatesus?Whatwillwedowhenweneedtomakechoicesabouthow that world regulates us, and how we regulate it?

The weariness with government that I described at the end of the last chapter isnot a conditionwithout cause.But its cause isnot thedeathof any idealof democracy.Weareall still democrats;we simplydonot likewhatour democracyhasproduced.Andwecannot imagineextendingwhatwehave to new domains like cyberspace. If there were just more of the same there— more of the excesses and betrayals of government as we have come to know it—then better that there should be less.

There are two problems here, though only one that is really tied to the argument of this book, and so only one that I will discuss in any depth. The other I mentioned at the end of the last chapter—the basic corruption in any systemthatwouldallowsomuchpolitical influencetobepeddledbythosewho hand out money.This is the corruption of campaign financing, a corruption

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not of people but of process.Even good souls in Congress have no choice but to spend an ever-increasing amount of their time raising an ever-increasing amount of money to compete in elections. This is an arms race, and our SupremeCourthas effectively said that theConstitution requires it.Until this problemis solved, Ihave little faith inwhatourdemocracywill produce.

The solution to this problem is obvious, even if the details are extremely difficult: Spend public resources to fund public campaigns.The total cost of federal elections in2004wasprobablyclose to$4billion.9 In thesameyear,we spent $384 billion on defense and $66 billion on the war in Iraq.10 Whatever you thinkabout thewisdomof defense spendingand thewar in Iraq,at least thepurposesof all three expenditures is the same—topreserve andpromote democracy. Is thereanydoubt if wemadecampaigncontributionsessentially irrelevant topolicywe’dhaveamorecertainandpositiveeffectondemocracy than the other two?

But there is a second, oddly counterintuitive reason for this increasing failureof democracy.This isnot thatgovernment listens too little to theviews of thepublic; it is that government listens toomuch.Every fancyof thepop- ulation gets echoed in polls, and these polls in turn pulse the democracy.Yet the message the polls transmit is not the message of democracy; their fre- quencyand influence isnot theproductof increased significance.ThePresi- dent makes policy on the basis of overnight polling only because overnight polling is so easy.

This ispartlya technologyproblem.Pollsmarkan interactionof technol- ogy and democracy that we are just beginning to understand.As the cost of monitoring thecurrentviewof thepopulationdrops,andas themachines for permanentmonitoringof thepopulationarebuilt,weareproducingaperpet- ual stream of data about what“the people”think about every issue that gov- ernment might consider.

A certain kind of code perfects the machine of monitoring—code that automates perfect sample selection, that facilitates databases of results, and that simplifies the process of connecting. We rarely ask, however, whether perfect monitoring is a good.

It has never been our ideal—constitutionally at least—for democracy to be a perfect reflection of the present temperature of the people.Our framers were keen to design structures that would mediate the views of the people. Democracy was to be more than a string of excited utterances. It was to be deliberative,reflective,andbalancedby limitations imposedbyaconstitution.

But maybe, to be consistent with the arguments from Part III, I should say that at least there was a latent ambiguity about this question. In a world where electionswere extremely costly andcommunicationwas complicated,

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democracy had to get by with infrequent elections.Nevertheless,we cannot really know how the framers would have reacted to a technology that allows perfect and perpetual polling.

There is an important reason to be skeptical of the flash pulse of the people. The flash pulse is questionable not because the people are unedu- cated or incapable of good judgment, and not because democracy needs to fail, but because it is often the product of ignorance. People often have ill- informed or partially informed views that they simply repeat as judgments when they know that their judgments are not being particularly noticed or considered.

Technology encourages this.As a consequenceof themassive increase in reportingonnews,weareexposed toagreater rangeof informationabout the world today than ever before. This exposure, in turn, gives us confidence in our judgment.Neverhavingheardof EastTimor,peoplewhenaskedabout it might well have said,“I don’t know.”But having seen ten seconds on TV, or thirty lines on a Web portal news page, gives them a spin they didn’t have before.And they repeat this spin,with very little value added.

The solution to this problem is not less news or a ban on polling. The solution is a better kind of polling. The government reacts to bad poll data because that is theonlydatawehave.But thesepolls arenot theonlypossible kindsof polls.Thereare techniques forpolling that compensate for theerrors of the flash poll and produce judgments that are both more considered and more stable.

Anexample is the“deliberative”poll devisedbyProfessor JamesFishkin. Rather thanapulse,Fishkin’spolls seekanequilibrium.11 Theybringacross- section of people together for a weekend at a time.These people,who repre- sentall segmentsof a society,aregiven informationbefore thepoll thathelps ensure that theyknowsomethingabout the subjectmatter.Afterbeing intro- duced to the topicof thepoll, theyare thendivided into small juries andover the course of a couple of days argue about the topic at issue and exchange viewsabouthowbest to resolve it.At theendtheyareaskedabout theirviews, and their responses at this point form the“results”of the poll.

The great advantage of this system is not only that information is pro- vided but that the process is deliberative. The results emerge out of the rea- soning of citizens debating with other citizens.People are not encouraged to just cast a ballot.They give reasons for their ballot, and those reasons will or will not persuade.

We could imagine (we could dream) of this process extending generally. We could imagine it becoming a staple of our political life—maybe one rule of citizenship.And if it did, it might well do good, as a counterweight to the

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flashpulseandtheperpetually interestedprocess thatordinarygovernment is. It would be a corrective to the process we now have, one that might bring hope.

Cyberspace might make this process more possible; it certainly makes it even more necessary. It is possible to imagine using the architecture of the space to design deliberative forums, which could be used to implement Fishkin’s polling. But my message throughout is that cyberspace makes the need all the more urgent.12

There is a magic in a process where reasons count—not where experts rule or where only smart people have the vote, but where power is set in the face of reason. The magic is in a process where citizens give reasons and understand that power is constrained by these reasons.

This was the magic that Tocqueville wrote of when he told the world of the amazing system of juries in the United States. Citizens serving on juries mustmakereasoned,persuasivearguments incoming todecisions thatoften haveextraordinaryconsequences for social andpolitical life.Writing in1835, Tocqueville said of juries:

The jury . . . serves tocommunicate thespiritof the judges to themindsof all the

citizens; and this spirit,with the habits which attend it, is the soundest prepara-

tion for free institutions. It imbues all classeswith a respect for the thing judged

and with the notion of right. . . . It teaches men to practice equity; every man

learns to judgehisneighbor ashewouldhimself be judged. . . .The jury teaches

everymannot torecoilbefore theresponsibilityofhisownactionsandimpresses

him with that manly confidence without which no political virtue can exist. It

invests each citizen with a kind of magistracy; it makes them all feel the duties

which theyarebound todischarge towards society and thepartwhich they take

in its government. By obliging men to turn their attention to other affairs than

theirown, it rubsoff thatprivate selfishnesswhich is the rustof society.13

Itwasn’tTocqueville,however,oranyother theorist,whosoldmeonthis ideal. It was a lawyer who first let me see the power of this idea—a lawyer from Madison,Wisconsin,my uncle,Richard Cates.

We live in a time when the sane vilify lawyers. No doubt lawyers are in part responsible for this. But I can’t accept it, and not only because I train lawyers for a living. I can’t accept it because etched intomymemory is apic- ture my uncle sketched, explaining why he was a lawyer. In 1974 he had just returned from Washington, where he worked for the House Committee on Impeachment—of Nixon,notClinton, thoughHillaryRodhamwasworking with him. I pressed him to tell me everything; I wanted to hear about the

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battles. It was not a topic that we discussed much at home.My parents were Republicans.My uncle was not.

Myuncle’s jobwas to teach thecongressmenabout the facts in thecase— to first learn everything that was known,and then to teach this to the mem- bers of the committee. Although there was much about his story that I will never forget, themost compellingpartwasnot really related to the impeach- ment. My uncle was describing for me the essence of his job—both for the House and for his clients:

It is what a lawyer does,what a good lawyer does, that makes this system work.

It isnot thebluffing,or theoutrage,or the strategies and tactics. It is something

much simpler than that.What a good lawyer does is tell a story that persuades.

Not by hiding the truth or exciting the emotion, but using reason, through a

story, to persuade.

When itworks, it does something to thepeoplewhoexperience thisper- suasion. Some, for the first time in their lives, see power constrained by rea- son. Not by votes, not by wealth, not by who someone knows—but by an argument that persuades. This is the magic of our system, however rare the miracles may be.

This picture stuck—not in the elitist version of experts deciding what’s best,nor in itspopulist versionof excitedcrowdsyellingopponentsdown,but in the simple version that juries know.And it is this simple picture that our current democracy misses.Where through deliberation, and understanding, and a process of building community, judgments get made about how to go on.

We could build some of this back into our democracy.The more we do, the less significant the flashpulseswill be.And the less significant these flash pulses are, the more we might have faith again in that part of our tradition thatmadeus revolutionaries in1789—thecommitment toa formof govern- ment that respects deliberation and the people, and that stands opposed to corruption dressed in aristocratic baubles.

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E I G H T E E N

w h a t d e c l a n d o e s n ’ t g e t

DECLAN MCCULLAGH IS A WRITER WHO WORKS FOR WIRED NEWS.HE ALSO RUNS a mailing list that feeds subscribers bulletins that he decides to forward and facilitates a discussion among these members. The list was originally called “Fight Censorship,” and it initially attracted a large number of subscribers who were eager to organize to resist the government’s efforts to“censor” the Net.

ButDeclanhasconverted the list to farmore thanadiscussionof censor- ship. He feeds to the list other news that he imagines his subscribers will enjoy. So in addition to news about efforts to eliminate porn from the Net, Declan includes reports on FBI wiretaps, or efforts to protect privacy, or the government’s efforts to enforce thenation’s antitrust laws. I’ma subscriber; I enjoy the posts.

Declan’spolitics are clear.He’s a smart libertarianwhose first reaction to any suggestion that involves government is scorn. In one recent message, he citeda storyaboutaBritishproviderviolating fax spamlaws; this,heargued, showed that laws regulatinge-mail spamareuseless. Inanother,he criticized effortsbyReportersWithoutBorders topass laws toprotect free speech inter- nationally.1 There is one unifying theme to Declan’s posts: Let the Net alone. And with a sometimes self-righteous sneer, he ridicules those who question this simple, if powerful, idea.

I’ve watched Declan’s list for some time. For a brief time, long ago, I watchedthediscussionpartof the list aswell.Andthroughout theyears Ihave had thepleasureof learning fromDeclan,a single simplemessagehasdomi- nated the thread: The question is not just, Declan insists again and again, whether there are “market failures” that require government intervention. Thequestion is alsowhether there are“government failures.”(Ashe said ina

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recentpostabout theReportersWithoutBorders,“[JulienPain’s]able to iden- tify all these apparent examples of market failure, but [he’s] not as able to identify instances of government failure.”) And the consequence for Declan from asking the second is (just about always) to recommend we do nothing.

Declan’s question has a very good pedigree. It was the question Ronald Coase first started asking as he worked toward his Nobel Prize. Economists such as Pigou had identified goods that markets couldn’t provide. That was enough for Pigou to show that governments should therefore step in.But as Coase said,

[I]nchoosingbetweensocial arrangementswithin thecontextof which individ-

ualdecisionsaremade,wehave tobear inmindthatachange in theexistingsys-

tem which will lead to an improvement in some decisions may well lead to a

worsening of others. Furthermore we have to take into account the costs

involved in operating the various social arrangements (whether it be the work-

ingof amarketorof a governmentdepartment) aswell as the costs involved in

moving toanewsystem.Indevisingandchoosingbetweensocial arrangements

we should have regard for the total effect.2

Coase had a discipline to his work. That discipline was to never stop at theory.Theoretical insight is critical to progress,but testing that theory with a bit of real-world life is critical as well.

But this is the troublewith theworldof at least some libertarians.Wecan speculate till the cows come home about what the world would be like if our government were crafted by a gaggle of pure libertarians. There would be a government, of course. Libertarians are not anarchists. And no doubt, the consequencesof suchashift arecounter-intuitive. Itwouldcertainlynotbeas bad as statists predict; I doubt it would be as good as libertarians promise.

But the reality is thatwe’renever going to live in libertarian land.Andso the question we should ask is what attitude we should bring to regulation, given we live in this world where regulation is going to happen. Should our response in that world—meaning this world, and every possible world we’re ever going to see—be to act as if we oppose all regulation on principle?

Because if this is our response, that attitude will have an effect. It won’t stopall regulation,but itwill stop regulationof a certain form.Or,better, it’s certain not to stop regulation of a different form—regulation benefiting, for example,powerful special interests.

Consider an obvious example. Economists estimate that we as an economy lose billions because of the

burdens of spam. Ferris Research, for example, estimates that the current

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costs (including lost productivity) are between $9 and $10 per user per month. That translates into more than $9 billion per year to fight spam.3

Thesecostshavebeenbornebyeveryonewhopays fore-mailon the Internet. Theydon’t include the indirect costsof missingamessagebecause it is either filteredor ignored.(Nordoes thisnumber reckon thebenefit of spam,butas Iwon’t count thebenefit in thecomparativeexampleeither, I’ll leave thatout for now.)

Economists have also tried to estimate the cost of Internet “piracy” of copyrightedcontent (excluding software) to thecontent industry.Someesti- mate that the costs are actually very low. Felix Oberholzer and Koleman Strumpf, forexample,concluded that filesharinghas“aneffectonsales statis- tically indistinguishable from zero.”4 Other estimates conclude there is a real loss, but not huge. In 2003, using a sophisticated model to measure the loss from P2P filesharing in 2003, David Blackburn concluded the industry lost $330 million.5 That number is significantly below the RIAA’s estimate of the total annual cost from“all forms of piracy”: $4.2 billion.6

Suffice it that these estimates are contested. But even so, in this field of contest,one thing isabsolutelycertain:Thecostof“piracy”is significantly less than the cost of spam. Indeed, the total cost of spam—adding consumers to corporations—exceeds the total annual revenues of the recording industry.7

So how does this difference in harm calibrate with what Congress has done to respond to each of these two problems?

In the last tenyears,Congresshaspassedexactlyonebill todealwith the problemof spam—theCAN-SPAMActof 2003.Over the sameperiod,Con- gress has passed 24 laws affecting copyright.8 Not all of these laws,of course, are directly targeted against “piracy,” but they all do aim further to protect copyrighted work in a digital age.

This pattern is not an accident. In a political world that is dominated as ours is, lawmaking happens when special interests benefit. It doesn’t happen when special interests oppose.And in these two instances, the lackof regula- tionand theplethoraof regulation is explainedby thispointprecisely.There have been 24 bills about copyright because rock stars lobby for them. There has been one bill about spam because the direct mailers (and many large companies) testified against them.

Now given this reality, I suggest the libertarian should recognize a third important failure that complements “market” and “government” failure: There is “market failure” when markets can’t be expected to provide goods efficiently; there’s“government failure”whengovernmentcan’tbeexpected to solve market failures efficiently; and there’s “libertarian failure” when the push todonothingwillproducenotnoregulationatall,but regulationby the

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mostpowerfulof special interests.Or ina slogan:When it’swrong topush for regulation,only the wrong will get regulation.

I amnota libertarian in the senseDeclan is, thoughI sharehis skepticism aboutgovernment.Butwecan’t translate skepticismintodisengagement.We have a host of choices that will affect how the Internet develops and what values it will embed. The attitude that eschews government as part of those choices is not one that will stop government; it will simply stop government from making the right choices.

In my view,governments should intervene,at a minimum,when private actionhasnegativepublic consequences;whenshortsightedactions threaten to cause long-term harm; when failure to intervene undermines significant constitutional values and important individual rights; when a form of life emerges thatmay threatenvalueswebelieve tobe fundamental; andwhenwe cansee that failing to interveneonthe sideof rightwill simply strengthen the interventions on the side of wrong. Such intervention must be limited; it mustbeengagedwithall theawarenessabout the failuresof government that right thinking sorts can muster. But action defending right should not be stopped merely because some goes wrong. When those who believe in the liberty of cyberspace, and the values that liberty promotes, refuse to engage withgovernmentabouthowbest topreserve those liberties, thatweakens lib- erty. Do-nothingism is not an answer; something can and should be done.

I’ve argued this, but not with much hope. So central are the Declans in our political culture today that I confess I cannot see a way around them. I have sketched small steps; they seem very small. I’ve described a different ideal; it seems quite alien. I’ve promised that something different could be done,but not by any institution of government that I know.

The truth,I suspect, is that theDeclanswillwin—at least fornow.Wewill treat code-based environmental disasters—like the loss of privacy, like the censorshipof censorware filters, like thedisappearanceof an intellectual com- mons—as if they were produced by gods, not by Man. We will watch as importantaspectsof privacyandfree speechareerasedby theemergingarchi- tecture of the panopticon, and we will speak, like modern Jeffersons, about nature making it so—forgetting that here, we are nature. We will in many domains of our social life come to see the Net as the product of something alien—somethingwecannotdirectbecausewecannotdirectanything.Some- thing instead that we must simply accept, as it invades and transforms our lives.

Some say this is an exciting time. But it is the excitement of a teenager playing chicken,his carbarrelingdownthehighway,handsheld far fromthe steeringwheel.Thereare choiceswecouldmake,butwepretend that there is

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nothing we can do. We choose to pretend; we shut our eyes. We build this nature, then we are constrained by this nature we have built.

It is theageof theostrich.Weareexcitedbywhatwecannotknow.Weare proud to leave things to the invisible hand. We make the hand invisible by looking the other way.

But it is not a great time, culturally, to come across revolutionary tech- nologies.Wearenomoreready for this revolution thantheSovietswere ready for theirs.We, like they,havebeencaughtbyarevolution.Butwe,unlike they, have something to lose.

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A P P E N D I X

In Chapter 7, I sketched briefly an argument for how the four modalities I described constrain differently. In this appendix, I want to extend that argu- ment.Myhope is toprovidea richer senseof howthesemodalities—law, the market, norms, and architecture—interact as they regulate. Such an under- standing isuseful,butnotnecessary, to theargumentof thisbook.I’ve there- fore put it here, for those with an interest, and too much time. Elsewhere I have called this approach“the New Chicago School.”1

Law is a command backed up by the threat of a sanction. It commands younot tocommitmurderandthreatensa severepenalty if youdosoanyway. Or it commands you not to trade in cocaine and threatens barbaric punish- ments if youdo.Inbothcases, thepictureof law is fairly simpleandstraight- forward: Don’t do this,or else.

Obviously law is much more than a set of commands and threats.2 Law notonly commandscertainbehaviorsbut expresses thevaluesof a commu- nity (when, for example, it sets aside a day to celebrate the birth of Martin Luther King, Jr.);3 constitutes or regulates structures of government (when the Constitution, for example, establishes in Article I a House of Represen- tatives distinct from a Senate); and establishes rights that individuals can invokeagainst theirowngovernment (theBill of Rights).All these are exam- plesof law,andby focusingon justonekindof law, Idonotmean todimin- ish the significance of these other kinds. Still, this particular aspect of law provides a well-defined constraint on individuals within the jurisdiction of the law giver, or sovereign. That constraint—objectively—is the threat of punishment.

Socialnormsconstraindifferently.By socialnorms,Imeanthosenorma- tive constraints imposednot through theorganizedor centralizedactionsof a state, but through the many slight and sometimes forceful sanctions that membersof a community imposeoneachother. I amnot talkingaboutpat- ternsof behavior: Itmaybe thatmostpeopledrive toworkbetween7:00and 8:00 A.M.,but this isnot anormin the sense Imean.Anormgoverns socially salient behavior,deviation from which makes you socially abnormal.4

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Life is filledwith,constitutedby,anddefined inrelation tosuchnorms— some of which are valuable, and many of which are not. It is a norm (and a good one) to thank others for service. Not thanking someone makes you “rude,” and being rude opens you up to a range of social sanctions, from ostracismtocriticism.It is anormtospeakcautiously toa seatmateonanair- plane, or to stay to the right while driving slowly. Norms discourage men fromwearingdresses toworkandencourageallof us tobatheregularly.Ordi- nary life is filled with such commands about how we are to behave. For the ordinarily socializedperson, thesecommandsconstitutea significantportion of the constraints on individual behavior.

Norms, like law, then, are effective rules.What makes norms different is themechanismandsourceof their sanction:Theyare imposedbyacommu- nity, not a state. But they are similar to law in that, at least objectively, their constraint is imposed after a violation has occurred.

The constraints of themarket aredifferent again.Themarket constrains throughprice.Aprice signals thepointatwhicharesourcecanbe transferred fromoneperson toanother. If youwantaStarbuckscoffee,youmustgive the clerk four dollars.The constraint (the four dollars) is simultaneous with the benefit youwant (the coffee).Youmay,of course,bargain topay for theben- efit later (“I’d gladly pay you Tuesday for a hamburger today”),but the obli- gation is incurred at the time you receive the benefit. To the extent that you stay in the market, this simultaneity is preserved. The market constraint, unlike law and norms, does not kick in after you have taken the benefit you seek; it kicks in at the same time.

This is not to say that market transactions cannot be translated into law ornormtransactions. Indeed,market transactionsdonotexist exceptwithin a context of law and norms.You must pay for your coffee; if you do not, the lawof theft applies.Nothing in themarket requires thatyoutip thewaiter,but if youdonot,normskick in toregulateyour stinginess.Theconstraintsof the market exist because of an elaborate background of law and norms defining what isbuyableandsellable,aswell as rulesof propertyandcontract forhow things may be bought and sold.But given these laws and norms, the market still constrains in a distinct way.

Theconstraintof our finalmodality isneither socontingentnor, in its full range,sodependent.This is theconstraintof architecture—theway theworld is,or theways specificaspectsof it are.Architects call it thebuilt environment; those who don’t give out names just recognize it as the world around them.

Plainly some of the constraints of architecture are constraints we have made (hence the senseof“architecture”) and somearenot.A door closesoff a room.When locked, the door keeps you out.The constraint functions not

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as law or norms do—you cannot ignore the constraint and suffer the conse- quence later.Even if the constraint imposedby thedoor isoneyoucanover- come—by breaking it down perhaps, or picking the lock—the door still constrains, just not absolutely.

Somearchitectural constraints,however,areabsolute.Star Trek notwith- standing, we cannot travel at warp speed.We can travel fast, and technology hasenabledus to travel faster thanweused to.Nonetheless,wehavegoodrea- son(or at leastphysicistsdo) forbelieving that there is a limit to the speedat which we can travel.As a T-shirt I saw at MIT put it,“186,282 miles per sec- ond. It’s not just a good idea. It’s the law.”

But whether absolute or not,or whether man-made or not,we can con- sider these constraints as a single class—as the constraintsof architecture,or real-space code. What unites this class is the agency of the constraint: No individualorgroup imposes theconstraint,orat leastnotdirectly. Individuals are no doubt ultimately responsible for much of the constraint, but in its actual execution theconstraint takes careof itself.Lawsneedpolice,prosecu- tors, andcourts tohaveaneffect; a lockdoesnot.Normsrequire that individ- uals take note of nonconforming behavior and respond accordingly; gravity does not.The constraints of architecture are self-executing in a way that the constraints of law,norms,and the market are not.

This featureof architecture—self-execution—isextremely important for understanding its role in regulation.It isparticularly important forunseemly orunjust regulation.Forexample, to theextent thatwecanbringabouteffects throughtheautomatic constraintsof real-spacecode,weneednotdependon thecontinuedagency, loyalty,or reliabilityof individuals. If wecanmake the machinedo it,wecanbe thatmuchmoreconfident that theunseemlywill be done.

The launching of nuclear missiles is a nice example. In their original design,missileswere tobe launchedby individual crews locatedwithinmis- sile launch silos. These men would have been ordered to launch their mis- siles, and theexpectationwas that theywoulddoso.Laws,of course,backed up the order—disobeying the order to launch subjected the crew to court- martial.5

But in testing the system, the army found it increasingly unreliable. Always thedecisionto launchwascheckedbya judgmentmadebyan individ- ual, and always that individual had to decide whether the order was to be obeyed.Plainly this systemis less reliable thana systemwhereall themissiles are wired,as it were, to a single button on the President’s desk.But we might believe that there is value in this second check, that the agency of the action by the soldier ensures some check on the decision to launch.6

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This is an important consequence of the automatic nature of the con- straints of architecture. Law,norms, and the market are constraints checked by judgment.They are enacted only when some person or group chooses to do so. But once instituted, architectural constraints have their effect until someone stops them.

Agency, then, isonedistinctionbetweenthe fourconstraints.The tempo- rality of the constraint—when it is imposed—is a second one.

Here I should distinguish between two different perspectives: that of someoneobservingwhenaconstraint is imposed(theobjectiveperspective), andthatof thepersonwhoexperiences theconstraint (the subjectiveperspec- tive). So far my description of the four constraints in this single model has been fromtheobjectiveperspective.Fromthatperspective theyarequitedif- ferent, but from a subjective perspective they need not differ at all.

Fromtheobjectiveperspective thedifference isbetweenconstraints that demand payment up front and constraints that let you play and then pay. Architecture and the market constrain up front; law and norms let you play first. For example, think of the constraints blocking your access to the air- conditioned home of a neighbor who is gone for the weekend. Law con- strainsyou—if youbreak in,youwill be trespassing.Normsconstrainyouas well—it’s not neighborly to break into your neighbor’s house.Both of these constraints, however, would be imposed on you after you broke into the house. They are prices you might have to pay later.7 The architectural con- straint is the lock on the door—it blocks you as you are trying to enter the house. The market constrains your ownership of an air conditioner in the sameway—itdemandsmoneybefore itwill giveyouone.Fromanobjective perspective,what distinguishes these two classes of constraints is their tem- porality—when the sanction is imposed.

From a subjective perspective, however, all these differences may disap- pear. Subjectively,youmaywell feel anormconstraint longbeforeyouviolate it.Youmayfeel theconstraintagainstbreaking intoyourneighbor’shouse just at the thoughtof doing so.Aconstraintmaybeobjectively ex post, but expe- rienced subjectively ex ante.

The point is not limited to norms.Think about a child and fire. Fire is a bit of real-space code: The consequences are felt as soon as the constraint it imposes is violated.A child learns this the first time he puts his hand near a flame.Thereafter, thechild internalizes theconstraintof firebeforeputtinghis hand in one. Burned once, the child knows not to put his hand so near the flame a second time.8

Wecandescribe this changeas thedevelopmentof a subjectiveconstraint on the child’s behavior.We can then see how the idea extends to other con-

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straints.Thinkabout the stockmarket.For thosewhodonot shopverymuch, the constraints of the market may indeed be only the objective constraint of the price demanded when they make a purchase. However, for those who experience the market regularly—who have, as it were, a sense of the mar- ket—the constraints of the market are quite different. Such people come to know them as a second nature, which guides or constrains their actions. Thinkof a stockbrokeron the floorof anexchange.Tobeagreatbroker is to cometoknowthemarket“like thebackof yourhand,”to let itbecomesecond nature. In the terms that we’ve used, this broker has let the market become subjectively part of who she is.

Each constraint, then, has a subjective and an objective aspect. Laws are objectively ex post, but for most of us, the fact that a law directs us in a par- ticularway is sufficient tomake it a subjective constraint. (It isnot theobjec- tive threat of jail that constrains me from cheating on my taxes; instead, I havemade subjective theconstraintsof the lawwith respect to taxes.Honest, IRS.This is true.)As a subjective constraint, it constrains us before we act.

For those who are fully mature, or fully integrated, all objective con- straints are subjectively effective prior to their actions. They feel the con- straintsof real-spacecode,of law,of norms,andof themarketbefore theyact. For the completely immature, or totally alienated, few objective constraints are subjectively effective.They step in themudandonly then learnabout the constraint of mud; they steal bread and only then learn about the punish- ments of the law; they show up at a wedding in cut-offs and only then learn about the scornof their friends; they spendall theirmoneyoncandyandonly then learnof the constraintof market scarcity.These two typesmarkout the extremes;most of us are somewhere in between.

Themore subjective a constraint, then, themoreeffective it is in regulat- ing behavior. It takes work to make a constraint subjective. An individual must choose tomake it apartof whoheor she is.To theextent that thenorm is made subjective, it constrains simultaneously with the behavior it regu- lates.

This points to one final distinction between law and norms, on the one hand,andreal-spacecode,on theother.Lawandnormsaremoreefficient the moresubjective theyare,but theyneedsomeminimal subjectivity tobeeffec- tive at all. The person constrained must know of the constraint. A law that secretly punishes people for offenses they do not know exist would not be effective in regulating the behavior it punishes.9

But this isnot thecasewitharchitecture.Architecturecanconstrainwith- outanysubjectivity.A lockconstrains the thief whetherornot the thief knows that it is a lockblocking thedoor.Thedistancebetween twoplaces constrains

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the intercourse between those two places whether or not anyone in those placesunderstands that constraint.Thispoint is acorollaryof thepointabout agency: Just asaconstraintneednotbe imposedbyanagent,neitherdoes the subject need to understand it.

Architectural constraints, then, work whether or not the subject knows theyareworking,while lawandnormsworkonly if the subjectknowssome- thing about them. If the subject has internalized them, they can constrain whether or not the expected cost of complying exceeds thebenefit of deviat- ing. Law and norms can be made more code-like the more they are internal- ized, but internalization takes work.

Though Ihaveused language invokingarchitects,my language isnot the language of architects. It is instead stolen and bent. I am not a scholar of architecture,but Ihave taken fromarchitecture its insightabout the relation- ship between the built environment and the practices that environment cre- ates.10 Neither architects nor I take this relationship to be determinative. Structure X does not determine behavior Y. Instead, these forms are always influences that canchange,andwhentheyarechanged, theyalter theaffected behavior.

Like Michael Sorkin, I believe that “meanings inhere in forms, and that the settings for social life can aid its fulfillment.” His book Local Code: The Constitution of a City at 42N Latitude suggests each featureof themodel I am describing, including the ambiguity between law and architecture (building codes) and the constitution the two enable.Whatever the source of the con- tentof these codes,hewrites,“their consequences arebuilt.”11 This is the fea- ture to focus on.

My suggestion is that if we relativize regulators—if we understand how the different modalities regulate and how they are subject, in an important sense, to law—thenwewill seehowliberty is constructed,not simply through the limitsweplaceon law,butby structures thatpreservea space for individ- ual choice,however that choice may be constrained.

We are entering a time when our power to muck about with the structures that regulate is at an all-time high. It is imperative, then, that we understand just what to do with this power. And, more importantly, what not to do with it.

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N O T E S

All hypertext links can be located at <http://codev2.cc/links>.

PREFACE TO THE SECOND EDITION

1. The wiki lives on at <http://wiki.codev2.cc>.

PREFACE TO THE FIRST EDITION

1. Sixth Conference on Computers, Freedom and Privacy. See link #1.

CHAPTER ONE

1.See Katie Hafner and Matthew Lyon,WhereWizardsStayUpLate (NewYork: Simon and Schuster,1996),10:“Taylor had been the young director of the office within the Defense Depart- ment’s Advanced Research Projects Agency overseeing computer research . . . Taylor knew the ARPANETanditsprogeny,the Internet,hadnothingtodowithsupportingorsurvivingwar . . .”

2. Paulina Borsook,“How Anarchy Works,”Wired 110 (October 1995): 3.10, available at link #2, quoting David Clark.

3. JamesBoyle, talkatTelecommunicationsPolicyResearchConference(TPRC),Washing- ton, D.C., September 28, 1997. David Shenk discusses the libertarianism that cyberspace inspires (as well as other, more fundamental problems with the age) in a brilliant cultural how-to book that responsibly covers both the technology and the libertarianism; see Data Smog: Surviving the Information Glut (San Francisco: Harper Edge, 1997), esp. 174–77. The book also describes technorealism, a responsive movement that advances a more balanced picture of the relationship between technology and freedom.

4. See Kevin Kelley, Out of Control: The New Biology of Machines, Social Systems, and the Economic World (Reading, Mass.: Addison-Wesley, 1994), 119. The term “cybernetics” was coined by a founder of much in the field, Norbert Wiener. See Cybernetics: Or Control and Communication in theAnimaland theMachine (Cambridge,Mass.: MIT Press,1965).See also Flo Conway and Jim Siegelman,DarkHeroof the InformationAge: InSearchofNorbertWiener, The Father of Cybernetics (NewYork: Basic Books, 2004).

5. Siva Vaidhyanathan,“Remote Control: The Rise of Electronic Cultural Policy,”Annals of theAmericanAcademy of Political and Social Science 597, 1 (January 1, 2005): 122.

6. See William J. Mitchell, City of Bits: Space, Place, and the Infobahn (Cambridge, Mass: MIT Press, 1995), 111. In much of this book, I work out Mitchell’s idea, though I drew the

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metaphor from others as well. Ethan Katsh discusses this notion of software worlds in “Soft- ware Worlds and the First Amendment: Virtual Doorkeepers in Cyberspace,” University of ChicagoLegalForum (1996): 335,338.The best current effort is R.PolkWagner,“On Software Regulation,”Southern California Law Review 78 (2005): 457, 470–71.

7. Joel Reidenberg discusses the related notion of “lex informatica” in “Lex Informatica: The Formulation of Information Policy Rules Through Technology,” Texas Law Review 76 (1998): 553.

8.OliverWendell Holmes, Jr.,“The Path of the Law,”HarvardLawReview10 (1897):457. 9. Mark Stefik, “Epilogue: Choices and Dreams,” in Internet Dreams: Archetypes, Myths,

and Metaphors, edited by Mark Stefik (Cambridge, Mass.: MIT Press, 1996), 390. 10. Mark Stefik, The Internet Edge: Social, Technical, and Legal Challenges for a Net-

worked World (Cambridge: MIT Press, 1999), 14. 11.Missouri v.Holland, 252 US 416, 433 (1920). 12.Thisdebate isnothing newtotheAmericandemocracy.SeeDoesTechnologyDriveHis-

tory?:TheDilemmaofTechnologicalDeterminism,Merritt Roe Smith and Leo Marx eds.(Cam- bridge: MIT Press,1994),1–35 (“If carried to extremes, Jefferson worried, the civilizing process of large-scale technology and industrialization might easily be corrupted and bring down the moral and political economy he and his contemporaries had worked so hard to erect”).

13.Richard Stallman, for example,organized resistance to the emergence of passwords at MIT. Passwords are an architecture that facilitates control by excluding users not “officially sanctioned.”Steven Levy,Hackers (Garden City,N.Y.:Anchor Press/Doubleday,1984),422–23.

CHAPTER TWO

1. Second Life—“What is Second Life?”, available at link #3. The currently leading game, World of Warcraft, claims more than five million alone.Available at link #4.

2. It is also hypothetical. I have constructed this story in light of what could be, and in places is. I’m a law professor; I make up hypotheticals for a living.

3. Edward Castronova, Synthetic Worlds: The Business and Culture of Online Games (Chicago: University of Chicago Press, 2005), 55.

4. Ibid., 2. 5. John Crowley and Viktor Mayer-Schoenberger,“Napster’s Second Life?—The Regula-

tory Challenges of Virtual Worlds” (Kennedy School of Government, Working Paper No. RWP05–052, 2005), 8.

6.“MUD”has had a number of meanings,originally Multi-User Dungeon,or Multi-User Domain. A MOO is a “MUD, object-oriented.” Sherry Turkle’s analysis of life in a MUD or MOO, Life on the Screen: Identity in the Age of the Internet (New York: Simon and Schuster, 1995), is still a classic. See also Elizabeth Reid,“Hierarchy and Power: Social Control in Cyber- space,” in Communities in Cyberspace, edited by Marc A. Smith and Peter Kollock (New York: Routledge,1999),107.Thefather—orgod—of aMUDnamedLambdaMOOisPavelCurtis.See his account in“Mudding: Social Phenomena in Text-BasedVirtual Realities,” in Stefik, Internet Dreams,265–92.For twomagicalpagesof linksabout thehistoryof MUDs,seeLaurenP.Burka, “The MUDline,”available at link #5; and Lauren P.Burka,“The MUDdex,”available at link #6.

7.This is not a rare feature of these spaces. It is indeed quite common,at least within role- playing games. Julian Dibbell described to me a“parable”he recognized within Ultima Online: As he calls it, the“case of the stolen Bone Crusher.”

“Igot twooffers for a BoneCrusher,which isa powerful sort of mace for bopping monsters over the head. I started dealing with both of them.At a certain point I

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was informed by one of them that the Bone Crusher had been stolen. So I said, ‘I’ll go buy it from the other guy. But, by the way, who was it that stole the Bone Crusher, do you know?’He said the name of the other guy. I was faced with this dilemma of was I going to serve as a fence for this other guy knowingly.And so, I turned to my mentor in this business, the guy who had been doing this for years and makes six figures a year on it, and, you know, I thought of him as an honest guy.So I sort of thought andmaybe even hopedthat hewould just say just walk away.We don’t do these kinds of deals in our business.We don’t need that, you know,blah,blah,blah.But he said,‘Well,you know,thieving is built into the game. It is a skill that you can do. So fair is fair.’ It is in the code that you can go into somebody’shouse and practiceyour thieving skills and steal something from them.And so, I went ahead and did the deal but there was this lingering sense of, ‘Wow, in a way that is completely arbitrary that this ability is in the code here whereas,you know, if it wasn’t built into the code it would be another story; they would have stolen it in another way.’ . . .”

“But in Ultima Online, it is very explicitly understood that the code allows you to steal and the rules allow you to steal.For me what was interesting was that there remains thisgray area. It made it an interesting game,that you were allowed todosomething thatwasactuallymorally shadyandyoumighthave todecide for yourself. I’m not sure that now, going back to the deal, I would have taken the fenced item.I’ve been stolen from in the game,according to the rules,and it feels like shit.”

Audio Tape: Interview with Julian Dibbell (1/6/06) (on file with author).

8. And only theft. If you transferred the property for a different purpose—say, sold the property—then the feature wouldn’t change.

9. Compare Susan Brenner,“The Privacy Privilege: Law Enforcement, Technology and the Constitution,” Journal of Technology Law and Policy 7 (2002): 123, 160. (“Pool tables in cyberspace do not require legs in this place where gravity does not exist”), citing Neal Stephenson, Snow Crash (New York: Bantam, 1992), 50 (in the Metaverse, tables only have tops, not legs).

10. Jake Baker’s given name wasAbraham JacobAlkhabaz,but he changed his name after his parents’ divorce. See Peter H. Lewis,“Writer Arrested After Sending Violent Fiction Over Internet,”NewYorkTimes, February 11, 1995, 10.

11.The seven are comp,misc,news,rec, sci, soc,and talk.See Henry Edward Hardy,“The History of the Net, v8.5,”September 28, 1993, available at link #7.

12. I have drawn from Jonathan Wallace and Mark Mangan’s vivid account in Sex, Laws, and Cyberspace (NewYork: M&T Books, 1996), 63–81, though more interesting variations on this story circulate on the Net (I’m playing it safe).

13.SeeUnitedStates v.Baker,890 FSupp 1375,1390 (EDMich 1995); see alsoWallace and Mangan,Sex,Laws, and Cyberspace, 69–78.

14. See Kurt Eichenwald, “Through His Webcam, a Bot Joins a Sordid Online World,” NewYorkTimes, December 19, 2005,A1.

15. See C. Anderson and B. Bushman, “Effects of Violent Video Games on Aggressive Behavior,Aggressive Cognition,AggressiveAffect,PhysiologicalArousal,and Prosocial Behav- ior: A Meta-Analytic Review of the Scientific Literature,” Psychological Science 12(5) (2001): 353–359,available at link #8; Jonathan L.Freedman,MediaViolenceandItsEffect onAggression (Toronto: Toronto University Press, 2002).

16. See William J. Stuntz, “The Substantive Origins of Criminal Procedure,” Yale Law Journal 105 (1995): 393, 406–7.

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17.See, for example,Thomas K.Clancy,“The Role of Individualized Suspicion inAssess- ing the Reasonableness of Searches and Seizures,”UniversityofMemphisLawReview25 (1995): 483, 632.“Individualized suspicion . . . has served as a bedrock protection against unjustified and arbitrary police actions.”

18. See United States v.Place, 462 US 696, 707 (1983). 19. James Boyle,Shamans,Software,andSpleens:Lawand theConstructionof the Informa-

tion Society (Cambridge, Mass.: Harvard University Press, 1996), 4. 20. See Susan Freiwald,“Uncertain Privacy: Communication Attributes After the Digital

Telephony Act,”Southern California Law Review 69 (1996): 949, 951, 954. 21.Cf. John Rogers,“Bombs,Borders,and Boarding:Combatting International Terrorism

at United States Airports and the Fourth Amendment,” Suffolk Transnational Law Review 20 (1997): 501, n.201.

22. See Mitchell Kapor, “The Software DesignManifesto,” available at link #9; David Farber,“A Note on the Politics of Privacy and Infrastructure,”November 20,1993,available at link #10; “Quotations,” available at link #11; see also Pamela Samuelson et al., “A Manifesto Concerning the Legal Protection of Computer Programs,” Columbia Law Review 94 (1994): 2308. Steven Johnson powerfully makes a similar point: “All works of architecture imply a worldview, which means that all architecture is in some deeper sense political”; see Interface Culture:HowNewTechnologyTransforms theWayWeCreateandCommunicate (San Francisco: Harper Edge, 1997), 44. The Electronic Frontier Foundation, originally cofounded by Mitch Kapor and John Perry Barlow, has updated Kapor’s slogan“architecture is politics” to“archi- tecture is policy.”I prefer the original.

23. Jed Rubenfeld has developed most extensively an interpretive theory that grounds meaning in a practice of reading across time, founded on paradigm cases; see “Reading the Constitution as Spoken,”YaleLawJournal 104 (1995): 1119,1122; and“On Fidelity in Consti- tutional Law,” Fordham Law Review 65 (1997): 1469. See also Jed Rubenfeld, Freedom and Time:ATheory of Constitutional Government (New Haven:Yale University Press, 2001).

24.SeeMinnesotav.Dickerson,508US366,380(1993)(JusticeAntoninScalia concurring: “I frankly doubt . . . whether the fiercely proud men who adopted our Fourth Amendment would have allowed themselves to be subjected,on mere suspicion of being armed and danger- ous, to such indignity. . . .”).

25.SeeSteveSilberman,“We’reTeen,We’reQueer,andWe’veGotE-Mail,”Wired (Novem- ber 1994): 76,78,80, reprinted in ComposingCyberspace: Identity,Community, andKnowledge in the ElectronicAge, edited by Richard Holeton (Boston: McGraw-Hill, 1998), 116.

26.Cf.UnitedStates v.Lamb,945 F.Supp 441 (NDNY 1996).(Congress’s intent in passing the Child Protection Act was to regulate child pornography via computer transmission, an interest legitimately related to stemming the flow of child pornography.)

CHAPTER THREE

1. David Johnson and David Post, “Law and Borders—The Rise of Law in Cyberspace,” Stanford Law Review 48 (1996): 1367, 1375.

2. Tom Steinert-Threlkeld, “Of Governance and Technology,” Inter@ctive WeekOnline, October 2, 1998.

3. J. C. Herz, Surfing on the Internet: A Nethead’s Adventures On-Line (Boston: Little, Brown, 1995), 2–3.

4. The design of the network has changed slightly in the years since this was written. Some authentication is now required on the Chicago network, but once Ethernet ports have been assigned an IP address, that address remains “as long as it doesn’t misbehave, we won’t

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know that has happened. In that sense, it is much the way it was.”Audio Tape: Interview with Greg Jackson (1/9/06) (on file with author).

5. See Helen Nissenbaum,“Values in the Design of Computer Systems,” Computers and Society (March 1998): 38.

6.As network adminstrator Greg Jackson described to me,while certain ports (including the wireless network) require that the user initially register the machine, there is no ongoing effort to verify the identity of the user.And,more importantly, there are still a significant num- ber of ports which remain essentially unregulated. That doesn’t mean that usage, however, isn’t regulated.As Jackson described,

“But the truth is, if we can identify a particular peer-to-peer network that is doing huge movie sharing, we will assign it a lower priority so it simply moves slower and doesn’t interfere with other people. So, we do a lot of packet shaping of that sort. Almost never does that extend to actually blocking particular sites, for example, although there are a few cases where we have had to do that just because . . .”

According to Jackson, it isnowColumbia thatearns thereputationas the free-estnetwork. “Columbia . . . really doesn’t ever try to monitor at all who gets on the wired network on cam- pus. They just don’t bother with that.Their policy is that they protect applications,not the net- work.”

Audio Tape: Interview with Greg Jackson (1/9/06) (on file with author).

7.For an extremely readable description,see Peter Loshin,TCP/IPClearlyExplained (San Francisco:Morgan Kaufmann,1997),15–23; see also Craig Hunt,TCP/IPNetworkAdministra- tion, 2d ed. (Sebastopol,Cal.: O’Reilly and Associates,1998),8–22; Trust in Cyberspace, edited by Fred B. Schneider (Washington, D.C.: National Academy Press, 1999), 29–36.

8. Peter Steiner, cartoon,NewYorker, July 5, 1993, 61. 9. In some contexts we call a network architecture that solves some of these “imperfec-

tions”—that builds in these elements of control—an intranet. Intranets are the fastest-growing portion of the Internet today.They are a strange hybrid of two traditions in network comput- ing—the open system of the Internet,based on TCP/IP,and the control-based capability of tra- ditional proprietary networks layered onto the Internet. Intranets mix values from each to produce a network that is interoperable but gives its controller more control over access than anyone would have over the Internet.My argument in this book is that an“internet”with con- trol is what our Internet is becoming.

CHAPTER FOUR

1. TelecomWorldWire,“Compuserve Moves for Porn Techno Fix,”January 11, 1995. 2.See Ed Krol,TheWhole Internet:User’sGuideandCatalogue (Sebastopol,Cal.: O’Reilly

andAssociates,1992),23–25;Loshin,TCP/IPClearlyExplained,3–83;Hunt,TCP/IP,1–22; see also Ben M. Segal,“A Short History of Internet Protocols at CERN,”available at link #12.

3. See Jerome H. Saltzer et al., “End-to-End Arguments in System Design,” in Integrated BroadbandNetworks,edited byAmit Bhargava (Norwood,Mass.:Artech House,1991),30–41.

4.Shawn C.Helms,“Translating PrivacyValues with Technology,”BostonUniversity Jour- nal of Science andTechnology Law 7 (2001): 288, 296.

5.For a description of HTTP Protocols as they were used in the early 1990s, see link #13. 6. For an extraordinarily clear explication of the point, see Dick Hardt—Etech 2006:

“Who Is the Dick on My Site?”(2006), available at link #14.

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7.Audio Tape: Interview with Kim Cameron (1/9/06) (on file with author). 8. Ibid. 9. Ibid. 10.A number of states have now passed legislation dealing with ID theft.A current listing

follows: Alabama Alabama Code § 13A-8–190 through 201 Alaska Alaska Stat § 11.46.565 Arizona Ariz. Rev. Stat. § 13–2008 Arkansas Ark. Code Ann. § 5–37–227 California Cal. Penal Code § 530.5–8 Connecticut Conn. Stat. § 53a-129a

Conn. Stat. § 52–571h Delaware Del. Code Ann. tit. II, § 854 District of Columbia Title 22, Section 3227 Florida Fla. Stat.Ann. § 817.568 Georgia Ga. Code Ann. § 16–9-120, through 128 Guam 9 Guam Code Ann. § 46.80 Hawaii HI Rev. Stat. § 708–839.6–8 Idaho Idaho Code § 18–3126 Illinois 720 Ill. Comp. Stat. 5/16 G Indiana Ind. Code § 35–43–5-3.5 Iowa Iowa Code § 715A.8 Kansas Kan. Stat.Ann. § 21–4018 Kentucky Ky. Rev. Stat.Ann. § 514.160 Louisiana La. Rev. Stat.Ann. § 14:67.16 Maine ME Rev. Stat.Ann. tit. 17-A §905-A Maryland Md. Code Ann. art. 27 § 231 Massachusetts Mass. Gen. Laws ch. 266, § 37E Michigan Mich. Comp. Laws § 750.285 Minnesota Minn. Stat.Ann. § 609.527 Mississippi Miss. Code Ann. § 97–19–85 Missouri Mo. Rev. Stat. § 570.223 Montana Mon. Code Ann § 45–6-332 Nebraska NE Rev. Stat. § 28–608 and 620 Nevada Nev. Rev. State. § 205.463–465 New Hampshire N.H. Rev. Stat.Ann. § 638:26 New Jersey N.J. Stat.Ann. § 2C:21–17 New Mexico N.M. Stat.Ann. § 30–16–24.1 NewYork NY CLS Penal § 190.77–190.84 North Carolina N.C. Gen. Stat. § 14–113.20–23 North Dakota N.D.C.C. § 12.1–23–11 Ohio Ohio Rev. Code Ann. § 2913.49 Oklahoma Okla. Stat. tit. 21, § 1533.1 Oregon Or. Rev. Stat. § 165.800 Pennsylvania 18 Pa. Cons. Stat. § 4120 Rhode Island R.I. Gen. Laws § 11–49.1–1 South Carolina S.C. Code Ann. § 16–13–510 South Dakota S.D. Codified Laws § 22–30A-3.1. Tennessee TCA § 39–14–150

TCA § 47–18–2101

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Texas Tex. Penal Code § 32.51 Utah Utah Code Ann. § 76–6-1101–1104 Virginia Va. Code Ann. § 18.2–186.3 Washington Wash. Rev. Code § 9.35.020 WestVirginia W.Va. Code § 61–3-54 Wisconsin Wis. Stat. § 943.201 Wyoming Wyo. Stat.Ann. § 6–3-901

11. Stewart A. Baker and Paul R. Hurst, The Limits of Trust: Cryptography, Governments, and Electronic Commerce (Boston: Kluwer Law International, 1998), xv.

12. Ibid. 13. See Hal Abelson et al., “The Risks of Key Recovery, Key Escrow, and Trusted Third-

PartyEncryption,”WorldWideWebJournal2(1997):241,245:“Although cryptographyhas tra- ditionally been associated with confidentiality, other cryptographic mechanisms, such as authentication codes and digital signatures, can assure that messages have not been tampered with or forged.”

14. Whitfield Diffie and Martin E. Hellman, “New Directions in Cryptography,” IEEE Transactions on Information Theory it–22 (November 1976): 29–40. The idea had apparently been discovered earlier by James Ellis at the British Government Communication Headquar- ters, but it was not then published; see Baker and Hurst,The Limits of Trust, xvii–xviii.

15.Even if the wires are tapped, this type of encryption still achieves its magic.We can get a hint of how in a series of cases whose accumulating impact makes the potential clear.

A. If I want to send a message to you that I know only you will be able to read, I can take your public key and use it to encrypt that message.Then I can send that message to you know- ing that only the holder of the private key (presumably you) will be able to read it.Advantage: My message to you is secure. Disadvantage:You can’t be sure it is I who sent you the message. Because anyone can encrypt a message using your public key and then send it to you, you have no way to be certain that I was the one who sent it.Therefore,consider the next example.

B. Before I send the message I have encrypted with your public key, I can encrypt it with my private key. Then when you receive the message from me, you can first decrypt it with my public key, and then decrypt it again with your private key.After the first decryption, you can be sure that I (or the holder of my private key) was the one who sent you the message; after the seconddecryption,youcan be sure thatonlyyou(orotherholdersof your privatekey)actually read the content of the message.But how do you know that what I say is the public key of Larry Lessig is actually thepublickey of Larry Lessig?Howcan yoube sure, that is, that thepublic key you are using is actually the public key it purports to be? Here is where the next example comes in.

C.If there is a trustworthy third party (say,my bank,or the Federal Reserve Board,or the ACLU) with a public key (a fact I am able to verify because of the prominence of the institu- tion), and that third party verifies that the public key of Larry Lessig is actually the public key of Larry Lessig, then along with my message sent to you,encrypted first in your public key and second in my private key, would be a certificate, issued by that institution, itself encrypted with the institution’s private key.When you receive the message, you can use the institution’s public key to decrypt the certificate; take from the certificate my public key (which you now are fairly confident is my public key); decrypt the message I sent you with the key held in the cer- tificate (after which you are fairly confident comes from me); and then decrypt the message encrypted with your public key (which you can be fairly confident no one else has read). If we did all that, you would know that I am who I say I am and that the message was sent by me; I would know that only you read the message; and you would know that no one else read the message along the way.

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16. Shawn C. Helms, “Translating Privacy Values with Technology,” Boston University Journal of Science andTechnology Law 7 (2001): 288, 299.

17. Ipanema Technologies,“Automatically discover applications running over your net- work.” Available at link #15.

18. iProtectYou Pro Web Filter v7.10. See link #16. 19. Nmap (“Network Mapper”). See link #17. 20. American Library Association v. Pataki, 969 F. Supp. 160 (S.D.N.Y. 1997), cited in

Michael Geist,Cyberlaw 2.0, 44 Boston College Law Review 323, 326–27 (2003). 21. Jack Goldsmith and Timothy Wu, Who Controls the Internet: Illusions of a Borderless

World (NewYork: Oxford University Press, 2006), 44. 22. MaxMind Home Page, available at link #18. 23. Hostip.info Home Page, available at #19. 24. Seth Finkelstein, Barbara Nitke and the National Association for Sexual Freedom v.

Ashcroft—Declarationof SethFinkelstein(lastupdatedFriApril28,2006),availableat link#20. 25.Plato’s Republic,Book II (Agoura Publications, Inc. 2001).

CHAPTER FIVE

1. Joel R.Reidenberg,“Technology and Internet Jurisdiction,”University of Pennsylvania Law Review 153 (2005): 1951.

2.SinceCodev1, there has been an extensive debate about whether government interven- tion will be needed to effect important public values.See, e.g.,Thomas B. Nachbar,“Paradox and Structure: Relying on Government Regulation to Preserve the Internet’s Unregulated Character,” Minnesota Law Review 85 (2000): 215 (suggesting intervention needed); Neil Weinstock Netanel,“Cyberspace Self-Governance:A SkepticalView from Liberal Democratic Theory,”CaliforniaLawReview 88 (2000): 395 (surveying and emphasizing democratic delib- eration); Jay P.Kesan,“Private Internet Governance,”LoyolaUniversityChicagoLawJournal35 (2003): 87 (surveying failed examples of private regulation); Thomas Schultz,“Does Online Dispute Resolution Need Governmental Intervention? The Case forArchitectures of Control and Trust,”NorthCarolina Journal of LawandTechnology 6 (2004): 71; Carl Shapiro,“Will E- Commerce Erode Liberty?,”HarvardBusinessReview (May-June 2000): 195. (optimistic about market’s regulatory effect); Brett Frischmann, “Privatization and Commercialization of the Internet Infrastructure: Rethinking Market Intervention into Government and Government Intervention into the Market,”ColumbiaScienceandTechnologyLawReview 2 (2000/2001): 1 (supporting intervention); Cass R. Sunstein, “Code Comfort,” New Republic, Jan. 10, 2002 (optimistic about market response); Henry H. Perritt, Jr., “Towards a Hybrid Regulatory Scheme for the Internet,” University of Chicago Legal Forum 215 (2001) (supporting gov’t backed private solutions); Jay P. Kesan and Andres A. Gallo,“Optimizing Regulation of Elec- tronic Commerce,”University of Cincinnati LawReview 72 (2004): 1497 (brilliant integration of game theory to understand when intervention is required).

3. Michael Geist,“Cyberlaw 2.0,”Boston College Law Review 44 (2003): 323, 332. 4.Transport for London,“Congestion Charging.”Available at link #21; Center for Trans-

portation Studies, “London’s Congestion Charge Cuts Traffic Delays, Spurs Bus Use” (December 2004), available at link #22 and link #23; Transport for London,“London Con- gestion Charging Technology Trials.” (February 2005), available at link #24.

5. See Katie Hafner and Matthew Lyon, WhereWizards Stay Up Late: The Origins of the Internet (New York: Simon and Schuster, 1996), 62–63.

6. CALEA authorized distribution of $500 million to cover modifications to telecom- munications systems installed or deployed before January 1, 1995. That was estimated to be

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about 25 percent of the total costs of the modification. House of Representatives, Subcom- mittee on Crime,Committee on the Judiciary,Testimony on the Implementation of CALEA. Wednesday, October 23, 1997, Testimony of RoyUSTA (available at link #25).

7. Susan P. Crawford,“Symposium, Law and the Information Society, PanelV: Respon- sibility and Liability on the Internet,Shortness of Vision: Regulatory Ambition in the Digital Age,”74 Fordham Law Review (2005): 695, 723–24.

8. Ibid., 720. 9. Susan P. Crawford,“Someone to Watch Over Me: Social Policies for the Internet”37

(Cardozo Law School Legal Studies Research Paper, No. 129, 2006). 10. This is just what happened, Seventh Circuit Court of Appeals Chief Judge Richard

Posner argues, when the Warren Court constitutionalized criminal procedure. To compen- sate for the increased difficulty in convicting a criminal, Congress radically increased crim- inal punishments. See Richard A. Posner,“The Cost of Rights: Implications for Central and Eastern Europe—and for the United States,” Tulsa Law Journal 32 (1996): 1, 7–9. Professor William Stuntz has made a similar point. William J. Stuntz, “The Uneasy Relationship Between Criminal Procedure and Criminal Justice,” Yale Law Journal 107 (1997): 1, 4. The Constitution, in this story, acted as an exogenous constraint to which Congress could adjust. If the protections of the Constitution increased, then Congress could compensate by increas- ing punishments.

11. Initially, the CALEA requirements extended to“facilities based”VOIP services only, though the push more recently is to extend it to allVOIP services.See Daniel J. Solove,Marc Rotenberg, and Paul M. Schwartz, Information Privacy Law, 2nd edition (New York: Aspen Publishers, 2006), they summarize the VOIP situation on pp. 287–88: “Voice over Internet Protocol (VoIP).”

12.See Federal Communications Commission,Further Notice of Proposed Rulemaking, Released November, 5 1998, at p. 25 (“In the matter of: Communications Assistance for Law EnforcementAct”) (“J-STD-025 includesa‘location’parameter thatwould identify the location of a subject’s ‘mobile terminal’whenever this information is reasonably available at the inter- ceptaccesspointand itsdelivery to lawenforcement is legallyauthorized.Location information would be available to the LEA irrespective of whether a call content channel or a call data channel was employed.”). The FBI’s desire to gather this information was challenged by civil liberties groups and industry associations. See United StatesTelecomAssociation, et al. v. FCC, 227 F.3d 450 (D.C. Cir. 2000). The Court permitted the cell tower information to be revealed, but only with a more substantial burden placed on the government.

13.See Center for Democracy and Technology,“FBI Seeks to Impose Surveillance Man- dates on Telephone System; Balanced Objectives of 1994 Law Frustrated: Status Report,” March 4, 1999, available at link #26.

14. Declan McCullagh, “ISP Snooping Gaining Support,” CNET News, Apr. 14, 2006, available at link #27. On March 15, 2006, the European Parliament passed a directive con- cerning the obligations of publicly available communications services with respect to the retention of data. See Eur. Parl. Doc. (COD/2005/0182). Members of Congress have been mulling over similar legislation. See Anne Broache,“U.S. attorney general calls for ‘reason- able’ data retention,”CNET News, Apr. 20, 2006, available at link #28.

15. Directive on the Retention of Data Generated or Processed in Connection with the Provision of Publicly Available electronic Communications Services or of Public Communi- cations Networks and Amending Directive 2002/58/EC, available at link #29.

16. Declan McCullagh, “Bill Would Force Websites to Delete Personal Info,” CNET News, Feb. 8, 2006, available at link #30.

17. For a good discussion of the Clipper controversy, see Laura J. Gurak, Persuasion and Privacy in Cyberspace: The Online Protests over Lotus Marketplace and the Clipper Chip

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(New Haven: Yale University Press, 1997), 32–43. For a sample of various views, see Kirsten Scheurer,“The Clipper Chip: Cryptography Technology and the Constitution,”RutgersCom- puter and Technology Law Journal 21 (1995): 263; cf. Howard S. Dakoff, “The Clipper Chip Proposal: Deciphering the Unfounded Fears That Are Wrongfully Derailing Its Implementa- tion,” John Marshall Law Review 29 (1996): 475.“Clipper was adopted as a federal informa- tion-processing standard for voice communication” in 1994; see Gurak, Persuasion and Privacy in Cyberspace, 125.

18. See Electronic Frontier Foundation (EFF), Cracking DES: Secrets of Encryption Research,WiretapPolitics, andChipDesign (Sebastopol,Cal.: Electronic Frontier Foundation, 1998), ch. 1.

19. For a good summary of the Clipper scheme, see Baker and Hurst, The Limits of Trust, 15–18; A. Michael Froomkin, “The Metaphor Is the Key: Cryptography, the Clipper Chip,and the Constitution,”University of PennsylvaniaLawReview 143 (1995): 709,752–59. For a more technical discussion, see Bruce Schneier, Applied Cryptography: Protocols, Algo- rithms, and Source Code in C, 2d ed. (New York: Wiley, 1996): 591–93.

20.See Richard Field,“1996: Survey of theYear’s Developments in Electronic Cash Law and the Laws Affecting Electronic Banking in the United States,” 46 American University Law Review (1997): 967, 993, n.192.

21. See A. Michael Froomkin, “It Came from Planet Clipper: The Battle over Crypto- graphic Key ‘Escrow,’”University of Chicago Legal Forum 1996 (1996): 15, 32.

22. Anick Jesdanun,“Attacks Renew Debate Over Encryption Software,” Chicago Trib- une, September 28, 2001, available at link #31.

23. Jay P. Kesan and Rajiv C. Shah, Shaping Code, 18 Harvard Journal of Law and Tech- nology 319, 326–27 (2005).

24.Former Attorney General Richard Thornburgh, for example,has called a national ID card “an infringement on rights of Americans”; see Ann Devroy, “Thornburgh Rules Out Two Gun Control Options;Attorney General Objects to Registration Card for Gun Owners, National Identification Card,”WashingtonPost, June 29,1989,A41.The Immigration Reform and Control Act of 1986 (Public Law 99–603, 100 Stat 3359 [1986], 8 USC 1324a[c] [1988]) eschews it:“Nothing in this section shall be construed to authorize directly or indirectly, the issuance or use of national identification cards or the establishment of national identification cards.”Given the power of the network to link data,however, this seems to me an empty pro- tection. See also Real ID Act, Pub. L. No. 109–13, Title II §202 (2005). The Real ID Act requires citizens to go to the DMV in person, bringing with them several pieces of identifi- cation to the DMV, including birth certificates, and face consumers with higher fees and tougher background check. Supporters feel the act targets the link between terrorists, illegal immigrants, and identification standards.

25. Jack Goldsmith and Timothy Wu,“Digital Borders,”LegalAffairs, Jan./Feb.2006,44. 26.Notice that this would be an effective end-run around the protections that the Court

recognized in Reno v. American Civil Liberties Union, 117 SCt 2329 (1997). There are many “activities”on the Net that Congress could easily regulate (such as gambling). Regulation of these activities could require IDs before access to these activities would be permitted.To the extent that such regulation increases the incidence of IDs on the Net, other speech-related access conditions would become easier to justify.

27. Arthur Cordell and T. Ran Ide have proposed the consideration of a bit tax; see Arthur J.Cordell et al.,TheNewWealth of Nations:TaxingCyberspace (Toronto: Between the Lines,1997).Their arguments are compelling from the perspective of social justice and eco- nomics, but what they do not account for is the architecture that such a taxing system would require. A Net architected to meter a bit tax could be architected to meter just about any- thing.

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28. Countries with such a requirement have included Argentina, Australia, Belgium, Greece, Italy, and Switzerland; see Richard L. Hasen, “Symposium: Law, Economics, and Norms: Voting Without Law?”University of Pennsylvania Law Review 144 (1996): 2135.

29.See the description in Scott Bradner,“The Internet Engineering Task Force,”in Open Sources: Voices from the Open Source Revolution, edited by Chris DiBona et al. (Sebastopol, Cal.: O’Reilly and Associates, 1999).

30.Michael Froomkin makes a similar point:“Export control rules have had an effect on the domestic market for products with cryptographic capabilities such as e-mail,operating sys- tems, and word processors.Largely because of the ban on export of strong cryptography, there is today no strong mass-market standard cryptographic product within the U.S. even though a considerable mathematical and programming base is fully capable of creating one”;“It Came from Planet Clipper,”19.

31. See“Network Associates and Key Recovery,”available at link #32. 32. Cisco has developed products that incorporate the use of network-layer encryption

through the IP Security (IPSec) protocol. For a brief discussion of IPSec, see Cisco Systems, Inc.,“IP Security–IPSec Overview,”available at link #33. For a more extensive discussion, see Cisco Systems, Inc.,“Cisco IOS Software Feature: Network-Layer Encryption—White Paper”; Cisco Systems, Inc. “IPSec—White Paper,” available at link #34; see also Dawn Bushaus, “Encryption Can Help ISPs Deliver Safe Services,” Tele.Com, March 1, 1997; Beth Davis and Monua Janah,“Cisco Goes End-to-End,” InformationWeek, February 24, 1997, 22.

33.See InternetArchitectural Board statement on“private doorbell”encryption,available at link #35.

34. Little, but not nothing. Through conditional spending grants, the government was quite effective initially in increasing Net participation, and it was effective in resisting the development of encryption technologies; see Whitfield Diffie and Susan Eva Landau, Privacy on the Line: The Politics of Wiretapping and Encryption (Cambridge, Mass.: MIT Press, 1998). Steven Levy tells of a more direct intervention. When Richard Stallman refused to password- protect the MITAI (artificial intelligence) machine, the Department of Defense threatened to take the machine off the Net unless the architectures were changed to restrict access.For Stall- man, this was a matter of high principle; for the Department of Defense, it was business as usual; see Steven Levy,Hackers:Heroes of theComputerRevolution (Garden City,N.Y.:Anchor Press/Doubleday, 1984), 416–18.

35.On virtual private networks, see Richard Smith, InternetCryptography (Boston:Addi- son-Wesley, 1997) chs. 6, 7; on biometric techniques for security, see Trust in Cyberspace, edited by Fred B. Schneider (Washington, D.C.: National Academy Press, 1999), 123–24, 133–34.

36. Jonathan L.Zittrain,“The Generative Internet,” 119HarvardLawReview1974 (2006). 37. Ibid., 2010. 38. Ibid., 2012. 39. Ibid. 40. Ibid. 41. Ibid., 2011. 42. Ibid. 43.UnitingandStrengtheningAmericabyProvidingAppropriateToolsRequired toInter-

cept and Obstruct Terrorism (USA PATRIOT ACT) Act, Pub. L. No. 107–56, 155 STAT. 272 (2001); American Civil Liberties Union, Seeking Truth From Justice: PATRIOT Propaganda— The Justice Department’s Campaign to Mislead the PublicAbout the USA PATRIOTAct (Amer- ican Civil Liberties Union, July 9, 2003).

44.Roberto Mangabeira Unger,SocialTheory: Its Situationand ItsTask (NewYork: Cam- bridge University Press, 1987).

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45. In Bruce Ackerman, Social Justice in the Liberal State (New Haven: Yale University Press,1980), thecoreanalytic device is dialogue:every assertion of power ismet with a demand for justification.

46. William J. Mitchell, City of Bits: Space, Place, and the Infobahn” (Cambridge, Mass.: MIT Press, 1996), 112.

47. David Brin,The Transparent Society:Will Technology Force Us to Choose Between Pri- vacy and Freedom? (Boulder: Perseus, 1999), 324.

48. Though the plan remains uncertain. In June 2006, Google co-founder Sergey Brin expressed some doubts about Google’s plans.See Thomas Crampton,“Google IsVoicing Some Doubt Over China,” International HeraldTribune, June 7, 2006.

CHAPTER SIX

1.Mike Godwin,CyberRights:DefendingFreeSpeech in theDigitalAge (NewYork: Times Books, 1998), 15. See also Esther Dyson, Release 2.0: A Design for Living in the Digital Age (New York: Broadway Books, 1997), who asserts: “Used right, the Internet can be a powerful enabling technology fostering the development of communities because it supports the very thing that creates a community—human interaction” (32); see also Stephen Doheny-Farina, The Wired Neighborhood (New Haven, Conn.: Yale University Press, 1996), 121–37. For an important collection examining community in cyberspace, see Marc A. Smith and Peter Kol- lock,Communities inCyberspace (NewYork:Routledge,1999).The collection ranges across the social issues of community, including“social order and control,”“collective action,”“commu- nity structure and dynamics,”and“identity.”The same relationship between architecture and norms assumed in this chapter guides much of the analysis in Smith and Kollock’s collection.

2.As I explored in Code v1, the newest“communitarian”on the Net might be business.A number of influential works have argued that the key to success with online businesses is the development of “virtual communities”; see, for example, Larry Downes and Chunka Mui, Unleashing the Killer App: Digital Strategies for Market Dominance (Boston: Harvard Business School Press, 1998), 101–9; John Hagel and Arthur G.Armstrong, Net Gain: Expanding Mar- kets ThroughVirtual Communities (Boston:Harvard Business School Press,1997).The explo- sion of essentially community based entities, such as Wikipedia and MySpace, in the time since confirms the insight of these authors.

3. For a detailed study of Internet demographics, see E-Consultancy, Internet Statistics Compendium,April 12, 2006, available at link #36.

4. For a great sense of how it was, see the articles by Rheingold, Barlow, Bruckman, and Ramo in part 4 of Richard Holeton, Composing Cyberspace: Identity, Community, and Knowl- edge in the Electronic Age (Boston: McGraw-Hill, 1998). Howard Rheingold’s book (the first chapter of which is excerpted in Holeton’s book) is also an early classic; see TheVirtual Com- munity:Homesteadingon theElectronicFrontier (Reading,Mass.:Addison-Wesley,1993).Stacy Horn’s book is a brilliant text taken more directly from the interchange (and more) online; see Cyberville: Clicks, Culture, and the Creation of an Online Town (New York: Warner Books, 1998).

5. For an excellent description, see Jonathan Zittrain,“The Rise and Fall of Sysopdom,” Harvard Journal of Law andTechnology 10 (1997): 495.

6. As Steven Johnson puts it: “In theory, these are examples of architecture and urban planning,but in practice they are bound up in broader issues: each design decision echoes and amplifies a set of values, an assumption about the larger society that frames it”; Interface Cul- ture: How New Technology Transforms the Way We Create and Communicate (San Francisco: Harper,1997),44.See also Nelson Goodman,“How Buildings Mean,”in Reconceptions inPhi-

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losophyandOtherArts andSciences,edited by Nelson Goodman and Catherine Z.Elgin (Lon- don: Routledge,1988),31–48.The same insight applies to things as well as spaces.See Langdon Winner,“Do Artifacts Have Politics?,” in TheWhale and the Reactor: A Search for Limits in an Age of HighTechnology (Chicago: University of Chicago Press, 1986), 19–39. To say a space or thing has values, however, does not say it determines any particular result. Influences and agency are many.

7. Mark Stefik,The Internet Edge, 14–15. 8. Cf. Godwin, Cyber Rights: Defending Free Speech in the Digital Age (New York: Times

Books, 1998): (“If you’re face-to-face with someone, you’re exposed to countless things over which the other person may have had no conscious control—hair color, say, or facial expres- sions. But when you’re reading someone’s postedASCII message,everything you see is a prod- uct of that person’s mind”) 42; see also ibid., 44.

9. See Martha Minow, Making All the Difference: Inclusion, Exclusion, and American Law (Ithaca, N.Y.: Cornell University Press, 1990), 79–97.

10. See Laura J. Gurak, Persuasion and Privacy in Cyberspace: The Online Protests over Lotus, Marketplace, and the Clipper Chip (New Haven: Yale University Press, 1997), 12–16. Gurak notes that “pseudonyms, for example, can be used to mask the name of a speaker, so that often it is the ethos of the texts, not the character of the speaker, that does or does not convince others.”Cf. Lori Kendall,“MUDder? I Hardly Know ’Er!: Adventures of a Feminist MUDder,” in WiredWomen: Gender and New Realities in Cyberspace, edited by Lynn Cherny and Elizabeth RebaWeise (Seattle: Seal Press,1996),207–233.Godwin describes another pos- sibility, as theASCII channel on the Net shuts down:“Then,perhaps, the world of ASCII com- munications will become a preserve for the edgy exchanges of tense text maniacs. Like me”; Cyber Rights, 45.

11. This is what economists would call a“separating equilibrium”:“players of different types adopt different strategies and thereby allow an uninformed player to draw inferences about an informed player’s type from that player’s actions”; Douglas G. Baird, Robert H. Gertner, and Randal C. Picker, Game Theory and the Law (Cambridge, Mass.: Harvard Uni- versity Press, 1994), 314. William Mitchell argues that the advance back to synchronous communication is not necessarily an advantage:“As much more efficient asynchronous com- munications systems have become commonplace, though,we have seen that strict synchrony is not always desirable; controlled asynchrony may have its advantages”; City of Bits, 5–16.

12. On making the Web accessible, see Judy Brewer and Daniel Dardailler,“Web Accessi- bility Initiative (WAI),”available at link #37;cf.“Note:Facial Discrimination:Extending Hand- icap Law to Employment Discrimination on the Basis of Physical Appearance,”Harvard Law Review 100 (1987): 2035.

13.Dawn C.Nunziato,“The Death of the Public Forum in Cyberspace,”BerkeleyTechnol- ogy Law Journal 20 (2005): 1115, 1125.

14.SeeAOL,“About the Company:Profile,”available at link #38,and now available at link #39.

15. Nunziato,“The Death of the Public Forum in Cyberspace,”1125. 16.See Kara Swisher,Aol.com: How Steve Case Beat Bill Gates,Nailed the Netheads, and

Made Millions in the War for the Web (NewYork: Times Business, 1998), 65. 17.As stated in AOL’s Terms of Service (TOS):“As an AOL member you are required to

follow our TOS no matter where you are on the Internet.”Some of the other terms of service include the following rules:“Language: Mild expletives and nonsexual anatomical references are allowed,but strong vulgar language, crude or explicit sexual references,hate speech,etc., are not. If you see it, report it at Keyword: Notify AOL. Nudity: Photos containing revealing attire or limited nudity in a scientific or artistic context are okay in some places (not all).Par- tial or full frontal nudity is not okay. If you see it, report it at Keyword: Notify AOL.Sex/Sen-

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suality: There is a difference between affection and vulgarity. There is also a difference between a discussion of the health or emotional aspects of sex using appropriate language, and more crude conversations about sex. The former is acceptable, the latter is not. For example, in a discussion about forms of cancer, the words breast or testicular would be acceptable, but slang versions of those words would not be acceptable anywhere. Violence and Drug Abuse: Graphic images of humans being killed, such as in news accounts, may be acceptable in some areas, but blood and gore, gratuitous violence, etc., are not acceptable. Discussions about coping with drug abuse in health areas are okay,but discussions about or depictions of illegal drug abuse that imply it is acceptable are not.”

18. See Amy Harmon,“Worries About Big Brother at America Online,”NewYork Times, January 31, 1999, 1.

19. Just as version 2 of this book was being completed,AOL switched to a free online serv- ice. The full scope of the change that this will involve is not yet clear. I have therefore framed this discussion in the past tense.

20. Swisher,Aol.com, 314–15.Available at link #40. 21. Ibid., 96–97. 22. See Robert C. Post, Constitutional Domains: Democracy, Community, Management

(Cambridge, Mass.: Harvard University Press, 1995), 199–267. 23.SeeCyberPromotions, Inc.v.AmericaOnline, Inc.,948FSupp436(EDPa1996)(holding

thatacompanyhasnofree speechrightunder theUnitedStates,Pennsylvania,orVirginiaCon- stitutions to send unsolicited e-mail over the Internet to a competitor’s customers).

24. Nunziato,“The Death of the Public Forum in Cyberspace,”1121. 25. Ibid., 1122. 26. E-mail from Alan Rothman to David R. Johnson (February 5, 2006) (on file with

author):“WhenCCpermanentlywentoffline inJune1999,severalmembershadestablishedtwo new forums over on in anticipation of this on Delphi called Counsel Cafe and Counsel Politics. The end was approaching and this was viewed as a virtual lifeboat for the devoted and cohesive communitythathadthrivedonCC.About100CCsurvivorswasheduptogether tosettle inthese newforums.Bothwereestablishedasbeingprivatebutmemberswereallowedto invite friends.”

27. Ibid. 28. Ibid. 29.See Elizabeth Reid,“Hierarchy and Power: Social Control in Cyberspace,”in Commu-

nities inCyberspace,editedbyMarcA.SmithandPeterKollock(London:Routledge,1999),109. 30.See JoshQuittner,“JohnnyManhattanMeets theFurryMuckers,”Wired (March1994):

92, available at link #41. 31. See Julian Dibbell,“A Rape in Cyberspace,”Village Voice, December 23, 1993, 36, 37,

available at link #42. 32. Ibid. 33. In particular, see Dibbell’s extraordinary MyTinyLife:CrimeandPassion inaVirtual

World (London: Fourth Estate, 1998). 34. Ibid., 13–14. 35. If anything, the sexuality of the space invited adolescent responses by adolescents; see

Scott Bukatman,Terminal Identity:TheVirtualSubject inPostmodernScienceFiction (Durham, N.C.:Duke University Press,1993),326.On MOOs in particular, see Dibbell,MyTinyLife.The challenge for the community was to construct norms that would avoid these responses without destroying the essential flavor of the space.

36. Dibbell,MyTiny Life, 24–25. 37.See Rebecca Spainhower,“Virtually Inevitable”:RealProblems inVirtualCommunities

(Evanston, Ill.: Northwestern University Press, 1994), available at link #43. 38. Ibid.

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39.For a rich account of both the democracy and how it functions, and the implications for self-regulation with a MUD,see Jennifer Mnookin,“Virtual(ly)Law:TheEmergenceof Law on LambdaMOO,” Journal of Computer-Mediated Communication 2 (1996): 1.

40.Hafner and Lyon,WhereWizardsStayUpLate, 216.“Flaming”is e-mail or other elec- tronic communication that expresses exaggerated hostility; see Gurak,Persuasion and Privacy in Cyberspace, 88.

41. Mnookin,“Virtual(ly) Law,”14. 42.One student of mine studied this behavior and concluded that the difference was sig-

nificant. That study was limited, however, by a relatively small sample. On the question more generally, Gurak reaches a different conclusion about whether cyberspace remedies gender imbalances; Persuasion and Privacy in Cyberspace, 104–13.

43.Audio Tape: Interview with Julian Dibbell (1/6/06) (on file with author). 44. MMOGCHART.com Home Page, available at link #44. 45.Audio Tape: Interview with Philip Rosedale (1/13/06) (on file with author). 46. Castronova,SyntheticWorlds, 2. 47. Julian Dibbell,“Dragon Slayers or Tax Evaders?,”LegalAffairs (Jan./Feb. 2006): 47. 48. Castronova,SyntheticWorlds, 19. 49.Audio Tape: Interview with Philip Rosedale (1/16/06) (on file with author). 50.LawrenceLessig,FreeCulture:TheNatureandFutureofCreativity (NewYork:Penguin,

2004),2–3,discussingUnitedStates v.Causby,U.S.328(1946):256,261.TheCourtdid findthat therecouldbea“taking”if thegovernment’suseof its landeffectivelydestroyedthevalueof the Causbys’ land. This example was suggested to me by Keith Aoki’s wonderful piece,“(Intellec- tual) Property and Sovereignty: Notes Toward a Cultural Geography of Authorship,”Stanford Law Review 48 (1996): 1293, 1333. See also Paul Goldstein, Real Property (Minneola, N.Y.: Foundation Press, 1984), 1112–13.

51. St. George Tucker, Blackstone’s Commentaries 3 (South Hackensack, N.J.: Rothman Reprints, 1969), 18.

52. J.D.Lasica,Darknet:Hollywood’sWarAgainst theDigitalGeneration (NewYork:Wiley, 2005), 248.

53. Ibid., 246. 54.See Jerome H.Saltzer et al.,“End-to-End Arguments in System Design,” in Integrated

Broadband Networks, edited by Amit Bhargava (New York: Elsevier Science Publishing Co., 1991), 30.

55. Susan P. Crawford,“Symposium, Law and the Information Society, Panel V: Respon- sibility and Liability on the Internet, Shortness of Vision: Regulatory Ambition in the Digital Age,”Fordham Law Review 74 (2005) 695, 700–701.

56.Audio Tape: Interview with Philip Rosedale (1/13/06) (on file with author). 57.See Lessig,FreeCulture:TheNatureandFutureofCreativity,330,n.9:Fisher’s proposal

is very similar to Richard Stallman’s proposal for DAT. Unlike Fisher’s, Stallman’s proposal would not pay artists directly proportionally, though more popular artists would get more than the less popular. See link #45.

58.SeeAudio Home RecordingAct,17 USC 1002 (1994) (requiring the serial copy man- agement system); seealso U.S.Department of Commerce, IntellectualPropertyand theNational Information Infrastructure: Report of theWorking Group on Intellectual Property Rights (Wash- ington, D.C.: Information Infrastructure Task Force, 1995), 179, 189–90.

59.See 47 CFR 15.120; see also TelecommunicationsAct of 1996 Pub.L.104–104,551,110 Stat.56,139–42 (1996),47 USC 303 (1998) (providing for study and implementation of video blocking devices and rating systems).

60. The consequence of an efficient v-chip on most televisions would be the removal of the standard justification for regulatingcontentonbroadcasting.If userscanself-filter, thenthe

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FCC need not do it for them;see Peter Huber,LawandDisorder inCyberspace:Abolish theFCC and Let Common Law Rule theTelecosm (NewYork: Oxford University Press, 1997), 172–73.

61. Digital Millenium Copyright Act, 17 U.S.C. §§ 512, 1201–1205, 1201(a)(2), 1201(b)(1)(A) (1998).

62. See Electronic Frontier Foundation, “DVD-CCA v. Bunner and DVD-CCA v. Pavlovich”available at link #46; DVD Copy ControlAssociation, Inc. v.Bunner, 31 Cal. 4th 864 (Cal. 2003); Pavlovich v. Superior Court, 29 Cal. 4th 262 (Cal. 2002); Universal Studios, Inc. v. Corley, 273 F.3d 429 (2d Cir. 2001).

63. Archive of developments involving Dmitri Sklyarov, his arrest, and trial, available at link #47.

64. Electronic Frontier Foundation,“Unintended Consequences: Seven Years Under the DMCA,”available at link #48.

65. See Chamberlain Group, Inc. v. Skylink Technologies, Inc., 544 U.S. 923 (2005). 66. Crawford,“Symposium, Law and the Information Society, PanelV,”695, 710. 67. The most significant cost is on innovation. If the broadcast flag requirement reaches

any device capable of demodulating digital television, then its requirement reaches any digital device on the network. It would be the first time network applications would have to comply with a technical mandate of such breadth,and it would be an unmanageable burden for open source and free software deployments.

68. R. Polk Wagner, On Software Regulation, Southern California Law Review 78 (2005): 457,470–71.See also Joel R.Reidenberg,“Technology and Internet Jurisdiction,”University of Pennsylvania Law Review 153 (2005): 1951; Joshua A. T. Fairfield,“Cracks in the Foundation: The New Internet Legislation’s Hidden Threat to Privacy and Commerce,”Arizona State Law Journal36 (2004): 1193 (arguing Congress should be more jurisdictionally exceptional and less content exceptional in its regulation of cyberspace).

69. Timothy Wu,“When Code Isn’t Law,”Virginia Law Review 89 (2003): 679, 707–8. 70. Ibid., 682.

CHAPTER SEVEN

1.Or more precisely,against a certain form of government regulation.The more powerful libertarian arguments against regulation in cyberspace are advanced, for example, by Peter Huber inLawandDisorder inCyberspace.Huber argues against agency regulation and in favor of regulation by the common law. See also Thomas Hazlett in“The Rationality of U.S. Regu- lation of the Broadcast Spectrum,” Journal of Law and Economics 33 (1990): 133, 133–39. For a lawyer, it is hard to understand precisely what is meant by“the common law.”The rules of the common law are many, and the substantive content has changed. There is a common law process, which lawyers like to mythologize, in which judges make policy decisions in small spaces against the background of binding precedent. It might be this that Huber has in mind, and if so, there are, of course, benefits to this system. But as he plainly understands, it is a form of regulation even if it is constituted differently.

2. The primary examples are the convictions under the Espionage Act of 1917; see, for example, Schenck v. United States, 249 US 47 (1919) (upholding conviction for distributing a leaflet attacking World War I conscription); Frohwerk v. United States, 249 US 204 (1919) (upholding conviction based on newspaper alleged to cause disloyalty); Debs v. United States, 249 US 211 (1919) (conviction upheld for political speech said to cause insubordination and disloyalty).

3. See, for example, the work of John R. Commons, Legal Foundations of Capitalism (1924), 296–98, discussed in Herbert Hovenkamp, Enterprise and American Law, 1836–1937

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(Cambridge, Mass.: Harvard University Press, 1991), 235; see also John R. Commons, Institu- tionalEconomics: ItsPlace inPoliticalEconomy (1934) (New Brunswick,N.J.:Transaction Pub- lishers reprint, 1990).

4. The general idea is that the tiny corrections of space enforce a discipline, and that this discipline is an important regulation.Such theorizing is a tiny part of the work of Michel Fou- cault; see Discipline and Punish: The Birth of the Prison (New York: Vintage, 1979), 170–77, though his work generally inspires this perspective. It is what Oscar Gandy speaks about inThe PanopticSort:APoliticalEconomyofPersonal Information (Boulder:Westview Press,1993),23. David Brin makes the more general point that I am arguing—that the threat to liberty is broader than a threat by the state; see TheTransparent Society, 110.

5. See, for example, The Built Environment: A Creative Inquiry into Design and Planning, edited by Tom J. Bartuska and Gerald L.Young (Menlo Park, Cal.: Crisp Publications, 1994); Preserving the Built Heritage: Tools for Implementation, edited by J. Mark Schuster et al. (Hanover, N.H.: University Press of New England, 1997). In design theory, the notion I am describing accords with the tradition of Andres Duany and Elizabeth Plater-Zyberk; see, for example,William Lennertz,“Town-Making Fundamentals,”in TownsandTown-MakingPrin- ciples, edited by Andres Duany and Elizabeth Plater-Zyberk (New York: Rizzoli, 1991): “The work of . . .Duany and . . .Plater-Zyberk begins with the recognition that design affects behav- ior. [They] see the structure and function of a community as interdependent.Because of this, they believe a designer’s decisions will permeate the lives of residents not just visually but in the way residents live. They believe design structures functional relationships, quantitatively and qualitatively, and that it is a sophisticated tool whose power exceeds its cosmetic attributes” (21).

6. Elsewhere I’ve called this the “New Chicago School”; see Lawrence Lessig, “The New ChicagoSchool,”JournalofLegalStudies27(1998):661.It iswithin the“toolsapproach”togov- ernment action (see John de Monchaux and J.Mark Schuster,“Five Things to Do,”in Schuster, Preserving the Built Heritage, 3), but it describes four tools whereas Schuster describes five. I develop the understanding of the approach in the Appendix to this book.

7. These technologies are themselves affected, no doubt, by the market. Obviously, these constraints could not exist independently of each other but affect each other in significant ways.

8. Lasica,Darknet, 16. See also Lior Jacob Strahilevitz,“Charismatic Code, Social Norms and the Emergence of Cooperation on the File-Swapping Networks,”89 Virginia Law Review (2003), 505 (arguing that charismatic code creates an illusion of reciprocity that accounts for why people contribute to a filesharing network).

9. Jay Kesan has offered a related,but more expansive analysis. See Jay P.Kesan and Rajiv C. Shah,“Shaping Code,”Harvard Journal of Law andTechnology 18 (2005): 319, 338.

10.See MichelleArmond,“Regulating Conduct on the Internet:State Internet Regulation and the Dormant Commerce Clause,”BerkeleyTechnology Law Journal 17 (2002): 379, 380.

11. See, for example, the policy of the Minnesota attorney general on the jurisdiction of Minnesota over people transmitting gambling information into the state; available at link #49.

12.See, for example,PlayboyEnterprises v.ChuckleberryPublishing, Inc., 939 FSupp 1032 (SDNY 1996); United States v.Thomas, 74 F3d 701 (6th Cir 1996); United States v. Miller, 166 F3d 1153 (11th Cir 1999); United States v. Lorge, 166 F3d 516 (2d Cir 1999); United States v. Whiting, 165 F3d 631 (8th Cir 1999); United States v. Hibbler, 159 F3d 233 (6th Cir 1998); United States v. Fellows, 157 F3d 1197 (9th Cir 1998); United States v. Simpson, 152 F3d 1241 (10th Cir 1998);UnitedStates v.Hall,142 F3d 988 (7th Cir 1998);UnitedStates v.Hockings,129 F3d 1069 (9th Cir 1997); United States v. Lacy, 119 F3d 742 (9th Cir 1997); United States v. Smith, 47 MJ 588 (CrimApp 1997); United States v.Ownby, 926 FSupp 558 (WDVa 1996).

13. See Julian Dibbell,“A Rape in Cyberspace,”VillageVoice, December 23, 1993, 36.

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14. Norms are something different—more directly regulating user behavior. See Daniel Benoliel,Technological Standards, Inc.: RethinkingCyberspaceRegulativeEpistemology, 92 Cal- ifornia Law Review 1069, 1077 (2004).

15.See, for example,“AOL Still Suffering but Stock Price Rises,”NetworkBriefing, January 31,1997;David S.Hilzenrath,“‘Free’Enterprise,Online Style;AOL,CompuServe,and Prodigy Settle FTC Complaints,”WashingtonPost,May 2,1997,G1;“America Online Plans Better Infor- mationAbout Price Changes,”Wall Street Journal,May 29,1998,B2; see also Swisher,Aol.com, 206–8.

16.USENET postings can be anonymous; see Henry Spencer and David Lawrence,Man- aging USENET (Sebastopol, Cal.: O’Reilly and Associates, 1998), 366–67.

17. Web browsers make this information available, both in real time and archived in a cookie file; see link #50. They also permit users to turn this tracking feature off.

18. PGP is a program to encrypt messages that is offered both commercially and free. 19.Encryption, for example, is illegal in some international contexts; see Baker and Hurst,

The Limits of Trust, 130–36. 20. Mitchell,City of Bits, 159. 21.See Ethan Katsh,“SoftwareWorlds and the FirstAmendment,”335,340.“If a compar-

ison to the physical world is necessary,one might say that the software designer is the architect, the builder, and the contractor, as well as the interior decorator.”

22. See Rummel v.Estelle, 445 US 263, 274 n.11 (1980). 23. Interestingly—and again, a reason to see the future of regulation talk located else-

where—this is not true of architects. An example is the work of John de Monchaux and J. Mark Schuster. In their essay“Five Things to Do”and in the collection that essay introduces, Preserving theBuiltHeritage, they describe the“five and only five things that governments can do—five distinct tools that they can use—to implement their”policies (4–5): ownership and operation (the state may own the resource); regulation (of either individuals or institutions); incentives;property rights; information.Monchaux and Schuster’s five tools map in a complex way on the structure I have described,but significantly,we share a view of regulation as a con- stant trade-off between tools.

24.See, for example, James C.Carter,TheProvinces of theWrittenand theUnwrittenLaw (New York: Banks and Brothers, 1889), who argues that the common law cannot be changed (38–41).

25. See, for example, the discussion of wage fund theory in Hovenkamp, Enterprise and American Law, 193–96.

26.Fora fascinatingaccountof thecomingof ageof the idea that thenatural environment might be tamed to a productive and engineered end, see John M.Barry,RisingTide:TheGreat MississippiFloodof 1927andHowItChangedAmerica (NewYork: Simon and Schuster,1997).

27.As Roberto Unger puts it,“Modern social thought was born proclaiming that society is made and imagined, that it is a human artifact rather than the expression of an underlying natural order”; SocialTheory, 1.

28.The idea of a free market was the obsession of the realists, especially Robert Hale; see Barbara H. Fried, The Progressive Assault on Laissez-Faire: Robert Hale and the First Law and EconomicsMovement (Cambridge,Mass.:Harvard University Press,1998):“Economic life, like Clark’s moral market, was constituted by a regime of property and contract rights that were neither spontaneously occurring nor self-defining,but were rather the positive creation of the state”(2–3).For a modern retelling,see Cass R.Sunstein,ThePartialConstitution (Cambridge, Mass.: Harvard University Press, 1993), 51–53.

29.Americans with Disabilities Act (ADA) of 1990, 42 USC §§ 12101 et seq. (1994). 30.See Alain Plessis,TheRise andFall of the SecondEmpire, 1852–1871 (1979) translated

by Jonathan Mandelbaum (English-language edition, NewYork: Cambridge University Press,

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1985),121;“Haussmann,Baron Georges-Eugène,” in EncyclopediaBritannica, 5th ed., (1992). Steven Johnson criticizes other aspects of the change in Interface Culture, 63–64.

31. See Robert A. Caro, The Power Broker: Robert Moses and the Fall of New York (New York: Alfred A. Knopf, 1974), 318.

32.RalphNader,UnsafeatAnySpeed:TheDesigned-InDangersof theAmericanAutomobile (NewYork: Grossman, 1965), xciii.

33. See Neal Kumar Katyal, “Architecture as Crime Control,” 111 Yale Law Journal 1039 (2002).

34. Ibid., 1047. 35. Ibid., 1048. 36. Brin,TheTransparent Society, 293. 37. Consider civil rights in the American South. During the legislative hearings on the

Civil Rights Act of 1964, supporters of the bill called before the committee white, southern employersandbusinessownerswhosediscriminationagainstblackswas theprimetargetof the legislation. Some of these employers and businessmen supported the bill because business would improve:The labor pool would increase,causing wages to decrease,and the demand for services would increase—so long, that is,as whites did not shift their custom.This last point is what set the stage for business support for the Civil Rights Act. What business leaders feared was the retaliation of whites against their voluntary efforts to integrate. The Civil Rights Act changed the context to make discrimination against blacks illegal. The businessman could then—without fear of the retaliation of whites—hire or serve a black because of either his concern for the status of blacks or his concern to obey the law. By creating this ambiguity, the law reduced the symbolic costs of hiring blacks. This example demonstrates how law can change norms without government having control over the norms. In this case, the norm of accommodating blacks was changed by giving it a second meaning—the norm of simply obey- ing the law; see Lessig,“The Regulation of Social Meaning,”965–67.

38. Thurgood Marshall, Esq., oral argument on behalf of respondents, Cooper v. Aaron, 358 US 1 (1958) (no. 1), in Fifty-four Landmark Briefs andArguments of the Supreme Court of theUnitedStates:Constitutional Law, edited by Philip B.Kurland and Gerhard Casper (Wash- ington, D.C.: University Publications of America, 1975), 533, 713.

39. See, for example, Dyson, Release 2.0: “Government can play a divisive role vis-à-vis communities.Often, the more government provides, the less community members themselves contribute”(43); in“TheRegulation of Groups:The Influence of Legal and Nonlegal Sanctions on CollectiveAction”(University ofChicagoLawReview63 [1996]:133),EricA.Posner argues that government help to a community can undermine the community.

40.R.PolkWagner,“On Software Regulation,”SouthernCaliforniaLawReview78 (2005): 457, 487.

41. Ibid., 474. 42. Ibid., 465. 43.Cass Sunstein points to seatbelt law as a hypothetical of“government regulation per-

mit[ing] people to express preferences by using the shield of the law to lessen the risk that pri- vate actors will interfere with the expression [through normative censure]”;“Legal Interference with PrivatePreferences,”UniversityofChicagoLawReview53(1986):1129,1145.Alternatively, seatbelt laws have been used as the factual basis for critiques of norm sponsorship as ineffective and no substitute for direct regulation; see Robert S. Alder and R. David Pittle, “Cajolery or Command:Are Education Campaigns anAdequate Substitute for Regulation?”Yale Journal on Regulation 1 (1984): 159, 171–78. However, the observations may have been premature. John C.Wright,commenting on television’s normative content,claims that“we have won the battle on seatbelts, just by a bunch of people getting together and saying, ‘It is indeed macho to put on a seatbelt. It is macho and it is smart and it is manly and it is also feminine and smart and

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savvy and charming to put on a seatbelt’”; Charles W. Gusewelle et al.,“Round Table Discus- sion:Violence in the Media,”Kansas Journal of Law and Public Policy 4 (1995): 39, 47.

44. The analysis here was in part suggested by Minow,MakingAll the Difference. 45. See Tracey L. Meares, “Social Organization and Drug Law Enforcement,” American

Criminal Law Review 35 (1998): 191. 46. Eric Posner (“The Regulation of Groups”) points to contexts within which govern-

ment action may have had this effect. 47.See Tracey L.Meares,“Charting Race and Class Differences inAttitudes Toward Drug

Legalization and Law Enforcement: Lessons for Federal Criminal Law,”Buffalo Criminal Law Review 1 (1997): 137.

48.In themid-1970s theU.S.government sponsoreda campaign tospray paraquat (a her- bicide that causes lung damage to humans) on the Mexican marijuana crop. This sparked a public outcry that resulted in congressional suspension of funding in 1978.However, following a congressional amendment in 1981, paraquat spraying was used on the domestic marijuana crop during the 1980s. The publicity surrounding the use of paraquat in Mexico is generally believed to have created a boom in the domestic marijuana industry and also an increase in the popularity of cocaine during the 1980s. See generally Michael Isikoff,“DEA Finds Herbicides in Marijuana Samples,”Washington Post, July 26, 1989, 17. In“Drug Diplomacy and the Sup- ply-Side Strategy:A Survey of United States Practice”(Vanderbilt LawReview43 [1990]:1259, 1275n.99),Sandi R.Murphy gives a fullhistory of the lawspassedrelevant toparaquat; seealso “A Cure Worse Than the Disease?,”Time,August 29, 1983, 20.

49.Roe v.Wade, 410 US 113 (1973). 50.Rust v. Sullivan, 500 US 173 (1991). 51.Maher v.Roe, 432 US 464 (1977). 52.Hodgson v.Minnesota, 497 US 417 (1990). 53. This distinction between“direct”and“indirect”regulation, of course, has a long and

troubled history in philosophy as well as in law. Judith J.Thomson describes this difference in her distinction between the trolley driver who must run over one person to save five and the surgeon who may not harvest the organs from one healthy person to save five dying people; see “The Trolley Problem,” Yale Law Journal 94 (1985): 1395, 1395–96. This difference is also known as the“double effect doctrine,”discussed in Philippa Foot,“The Problem of Abortion and the Doctrine of the Double Effect,” in Virtues andVices and Other Essays in Moral Philos- ophy (Berkeley: University of California Press, 1978), 19. See also Thomas J. Bole III, “The Doctrine of Double Effect: Its Philosophical Viability,”Southwest Philosophy Review 7 (1991): 91;FrancesM.Kamm,“TheDoctrineof DoubleEffect:ReflectionsonTheoretical andPractical Issues,”JournalofMedicineandPhilosophy16 (1991):571;Warren Quinn,“Actions, Intentions, and Consequences: The Doctrine of Double Effect,” Philosophy and Public Affairs 18 (1989): 334.The trouble in these cases comes when a line between them must be drawn; here I do not need to draw any such line.

54. Richard Craswell suggests other examples making the same point: The government could (a) regulate product quality or safety directly or (b) disclose information about different products’quality or safety ratings, in thehope thatmanufacturerswould thenhavean incentive to compete to improve those ratings; the government could (a) allow an industry to remain monopolized andattempt directly to regulate the price the monopolist chargedor (b)break up the monopolist into several competing firms, in the hope that competition would then force each to a more competitive price; the government could (a) pass regulations directly requiring corporations to do various things that would benefit the public interest or (b) pass regulations requiring that corporate boards of directors include a certain number of“independent”repre- sentatives, in the hope that the boards would then decide for themselves to act more consis- tently with the public interest.

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55. See NewYork v. United States, 505 US 144 (1992). 56.Lee Tien identifies other important problems with architectural regulation in“Archi-

tectural Regulation and the Evolution of Social Norms,” International Journal of Communica- tions Law and Policy 9 (2004): 1.

57. Aida Torres, “The Effects of Federal Funding Cuts on Family Planning Services, 1980–1983,”Family Planning Perspectives 16 (1984): 134, 135, 136.

58.Rust v.Sullivan,USNY (1990)WL 505726,reply brief,*7:“The doctor cannot explain the medical safety of the procedure, its legal availability, or its pressing importance to the patient’s health.”

59. See Madsen v.Women’s Health Center, Inc., 512 US 753, 785 (1994) (Justice Antonin Scalia concurring in the judgment in part and dissenting in part:“Today’s decision . . . makes it painfully clear that no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving state regulation of abortion” [quoting Thornburgh v. American College of Obstetricians and Gynecologists, 476 US 747, 814 (1986) (Justice Sandra Day O’Connor dissenting)]).

60.Shelley v.Kraemer, 334 US 1 (1948). 61. See Herman H. Long and Charles S. Johnson,PeopleVersus Property: Race-Restrictive

Covenants in Housing (Nashville: Fisk University Press, 1947), 32–33. Douglas S. Massey and Nancy A. Denton point out that the National Association of Real Estate Brokers adopted an article in its 1924 code of ethics stating that“a Realtor should never be instrumental in intro- ducing into a neighborhood . . . members of any race or nationality . . . whose presence will clearly be detrimental to property values in that neighborhood” (citing Rose Helper, Racial Policies and Practices of Real Estate Brokers [1969], 201); they also note that the Fair Housing Authority advocated the use of race-restrictive covenants until 1950 (citing Kenneth T.Jackson, Crabgrass Frontier: the Suburbanization of the United States [1985], 208); AmericanApartheid: Segregation and the Making of the Under Class (Cambridge, Mass.: Harvard University Press, 1993), 37, 54.

62. See Massey and Denton,AmericanApartheid. 63. Michael Froomkin points to the Clipper chip regulations as another example. By

using the standards-setting process for government purchases, the federal government could try to achieve a standard for encryption without adhering to the Administrative Procedure Act.“A stroke of bureaucratic genius lay at the heart of the Clipper strategy.Congress had not, and to this date has not, given the executive branch the power to control the private use of encryption. Congress has not even given the executive the power to set up an escrow system for keys. In the absence of any formal authority to prevent the adoption of unescrowed cryp- tography, Clipper’s proponents hit upon the idea of using the government’s power as a major consumer of cryptographic products to rig the market. If the government could not prevent the public from using nonconforming products,perhaps it could set the standard by purchas- ing and deploying large numbers of escrowed products”;“It Came from Planet Clipper,”15, 24, 1–33.

64. See The Industry Standard, available at link #51. 65.See“LegalEagle”(letter to theeditor),TheIndustryStandard,April26,1999(emphasis

added).

CHAPTER EIGHT

1. Castronova,SyntheticWorlds, 207. 2. Declan McCullagh, “It’s Time for the Carnivore to Spin,” Wired News, July 7, 2000,

available at link #52.

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3.Ann Harrison,“Government Error Exposes Carnivore Investigators;ACLU Blasts Team for Close Ties to Administration,”Computerworld, October 5,2000,available at link #53.This concern was strongly criticized. See Center for Democracy and Technology,“Cryptography,” available at link #54.

4.The Mitre Corporation did examine a related question for the military.See Carolyn A. Kenwood,A Business Case Study of Open Source Software (Mitre Corporation: 2001).

5. See Bush v.Gore, 531 U.S. 98, 126 (2000) (Stevens, J., dissenting). 6. Di Franco et al.,“Small Vote Manipulations Can Swing Elections,”Communications of

theACM,Volume 47, Number 10 (2004), 43–45, available at link #55. 7. For an extraordinarily troubling account that raises much more than suspicion, see

Robert F. Kennedy, Jr.,“Was the 2004 Election Stolen?,”Rolling Stone (June 2006). 8. David E. Ross,PGP: Backdoors and Key Escrow, 2003, available at link #56. 9. Craig Hunt, TCP/IP: Network Administration (Sebastopol, Calif.: O’Reilly and Associ-

ates, 1997), 1–22, 6, 8; Loshin,TCP/IP: Clearly Explained, 13–17. 10.There isnostandardreferencemodel for theTCP/IP layers.Hunt refers to the four lay-

ers as the “network access,” “internet,” “host-to-host transport,” and “application” layers; TCP/IP: Network Administration, 9. Loshin uses the terminology I follow in the text; TCP/IP: Clearly Explained, 13–17. Despite the different moniker, the functions performed in each of these layers are consistent.As with any protocol stack model, data are“passed down the stack when it is being sent to the network, and up the stack when it is being received from the net- work.” Each layer “has its own independent data structures,” with one layer “unaware of the data structures used by”other layers; Hunt,TCP/IP: NetworkAdministration, 9.

11.Hunt,TCP/IP:NetworkAdministration,9;Loshin,TCP/IP:Clearly Explained,13–17. 12.As Hafner and Lyon explain:“The general view was that any protocol was a potential

building block,and so the best approach was to define simple protocols,each limited in scope, with the expectation that any of them might someday be joined or modified in various unan- ticipated ways.Theprotocol design philosophy adoptedby theNWG [network workinggroup] broke ground for what came to be widely accepted as the ‘layered’ approach to protocols”; WhereWizards Stay Up Late, 147.

13. The fights over encryption at the link level, for example, are fights over the TCP/IP protocols. Some within the network industry have proposed that encryption be done at the gateways, with a method for dumping plain text at the gateways if there were proper legal authority—a kind of“private doorbell”for resolving the encryption controversy; see Elizabeth Kaufman and Roszel Thomsen II, “The Export of Certain Networking Encryption Products Under ELAs,”available at link #57.This has been opposed by the InternetArchitectural Board (IAB) as inconsistent with the“end-to-end”architecture of the Internet; see IAB statement on “private doorbell”encryption, available at link #58.

Since Code v1, there has been an explosion of excellent work extending “layer theory.” Perhaps the best academic work in this has been Lawrence B. Solum and Minn Chung,“The Layers Principle: Internet Architecture and the Law,” University of San Diego Public Law Research Paper No.55,available at link #59.Solum and Chung have used the idea of Internet layers to guide regulatory policy, locating appropriate and inappropriate targets for regulatory intervention. This is an example of some of the best work integrating technology and legal policy, drawing interesting and important implications from the particular, often counter intuitive, interaction between the two. I introduce“layers” in my own work in The Future of Ideas: The Fate of the Commons in a Connected World (New York: Random House, 2001), 23–25. See also Yochai Benkler, The Wealth of Networks: How Social Production Transforms Markets andFreedom (New Haven:Yale University Press,2006), 391–97.For other very useful work extending this analysis, see Craig McTaggart, “A Layered Approach to Internet Legal Analysis,”McGill Law Journal 48 (2003): 571; Thomas A. Lane,“Of Hammers and Saws: The

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Toolbox of Federalism and Sources of Law for the Web,”New Mexico Law Review 33 (2003): 115; Jane Bailey, “Of Mediums and Metaphors: How a Layered Methodology Might Con- tribute to Constitutional Analysis of Internet Content Regulation,”Manitoba Law Journal 30 (2004): 197.

14. See Hafner and Lyon,WhereWizards Stay up Late, 174. 15.A 1994 HTML manual lists twenty-nine different browsers; see LarryAronson,HTML

Manual of Style (Emeryville, Cal.: Ziff-Davis Press, 1994), 124–26. 16.Source code is the code that programmers write. It sometimes reads like a natural lan-

guage, but it is obviously not.A program is (ordinarily) written in source code, but to be run it must be converted into a language the computer can process.This is what a“compiler”does. Some source code is converted on the fly—BASIC,for example, is usually interpreted,meaning the computer compiles the source code as it is run.“Object code”is machine-readable. It is an undifferentiated string of 0s and 1s that instructs the machines about the tasks it is to perform.

17.Hypertext is text that is linked to another location in the same document or in another document located either on the Net or on the same computer.

18.T.Berners-Lee and R.Cailliau,WorldWideWeb:Proposal foraHyperTextProject,1990, available at link #60.

19. Of course, not always. When commercial production of computers began, software was often a free addition to the computer. Its commercial development as proprietary came only later; see IraV.Heffan,“Copyleft:Licensing CollaborativeWorks in the DigitalAge,”Stan- ford Law Review 49 (1997): 1487, 1492–93.

20.At the time Linux was developed, the dominant thinking among computer scientists was against a monolithic operating system operating out of a single kernel and in favor of a “microkernel”-based system. MINIX, a microkernel system, was the primary competitor at the time. Torvalds consciously rejected this“modern” thinking and adopted the“traditional” model for Linux; see“The Tanenbaum-Torvalds Debate,”inOpenSources:Voices fromtheOpen Source Revolution, edited by Chris DiBona et al. (Sebastopol, Cal.: O’Reilly and Associates, 1999), 221–51.

21.See the lists,“Ports of Linux”and Linux Online,“Hardware Port Projects”available at link #61 and link #62.

22.Technically, it does not sit in the public domain.Code from these open source projects is copyrighted and licensed. GNU/Linux is licensed under the GNU GPL, which limits the possibleuseyoucanmakeof Linux;essentially,youcannot take thepublicpartandclose it,and you cannot integrate the open part with the closed; see Bruce Perens,“The Open Source Def- inition,” in DiBona et al.,OpenSources,181–82.But for purposes of future open source devel- opment, the code sits in the commons. On the idea and values of the commons, see, for example, Michael A. Heller, “The Tragedy of the Anticommons: Property in the Transition from Marx to Markets,”Harvard Law Review 111 (1998): 621; Stephen M. McJohn,“Fair Use and Privatization in Copyright,” San Diego Law Review 35 (1998): 61; Mark A. Lemley,“The Economics of Improvement in Intellectual Property Law,” Texas Law Review 75 (1997): 989; Mark A. Lemley,“Romantic Authorship and the Rhetoric of Property,” Texas Law Review 75 (1997):873; Jessica Litman,“The Public Domain,”EmoryLawJournal39 (1990):965;Carol M. Rose, “The Several Futures of Property: Of Cyberspace and Folk Tales, Emission Trades and Ecosystems,”Minnesota Law Review 83 (1998): 129.

23. Daniel Benoliel, “Technological Standards, Inc.: Rethinking Cyberspace Regulatory Epistemology,”California Law Review 92 (2004): 1069, 1114.

24. Peter Harter, “The Legal and Policy Framework for Global Electronic Commerce,” comments at the Berkeley Center for Law and Technology Conference, March 5–6, 1999.

25.For an argument to the opposite conclusion,see Stephen M.McJohn,“The Paradoxes of Free Software,”GeorgeMasonLawReview 9 (2000): 25,64–65.Mathias Strasser extends the

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analysis here in a useful way in “A New Paradigm in Intellectual Property Law? The Case Against Open Sources,”StanfordTechnology Law Journal 2001 (2001): 4.

26. I am grateful to Hal Abelson for this point.

PART III

1.Forarelatedpractice that focusesupon principles incontext rather thanapplication,see AndrewL.Shapiro,“The‘Principles in Context’Approach to Internet Policymaking,”Columbia Science andTechnology Law Review 1 (2000): 2.

CHAPTER NINE

1. Justice Holmes himself called the wiretapping a “dirty business”; Olmstead v. United States, 277 US 438, 470 (1928) (Justice Oliver Wendell Holmes Jr. dissenting).

2. Ibid.,457 (Chief JusticeWilliam H.Taft: the obtaining of evidence by wiretaps inserted along telephone wires was done without trespass and thus did not violate the Fourth Amend- ment).

3. Ibid.,471 (Justice Louis D.Brandeis dissenting; Justices Holmes,Stone,and Butler also filed dissents).

4.There is an extensive debate about the original meaning of the FourthAmendment and how it should be applied today.For the two camps,seeAkhil ReedAmar,“FourthAmendment First Principles,”HarvardLawReview107 (1994):757;Tracey Maclin,“The Complexity of the Fourth Amendment: A Historical Review,”Boston University Law Review 77 (1997): 925 (cri- tiquing Amar’s argument).

5. See California v. Acevedo, 500 US 565, 582 (1991) (Justice Antonin Scalia concurring: describing warrant requirement as“riddled with exceptions”).

6.See Bradford P.Wilson,“The FourthAmendment as More Than a Form of Words:The View from the Founding,” in The Bill of Rights: Original Meaning and Current Understanding, edited by Eugene W. Hickok Jr. (Charlottesville: University Press of Virginia, 1991), 151, 156–57.As many have pointed out, there were not really any“police”at that time in the sense thatweunderstandthe termtoday.Themodernpolice force is acreationof thenineteenthcen- tury; see Carol S. Steiker,“Second Thoughts About First Principles,”Harvard Law Review 107 (1994): 820,830–34;William J.Stuntz,“The Substantive Origins of Criminal Procedure,”Yale Law Journal 105 (1995).

7.SeeAmar,“FourthAmendment First Principles,”767;Stuntz,“The Substantive Origins of Criminal Procedure,”400.

8. Indeed, as Professor William Stuntz argues quite effectively, one danger with warrants in general is that judges become lax and yet the product of their work (the warrant) receives great deference in subsequent proceedings; “Warrants and Fourth Amendment Remedies,” Virginia Law Review 77 (1991): 881, 893.

9. See Stuntz,“The Substantive Origins of Criminal Procedure,”396–406. 10. See United States v.Virginia, 518 US 515, 566–67 (1996) (Justice Antonin Scalia dis-

senting:“Closed-minded they were—as every age is . . .with regard to matters it cannot guess, because it simply does not consider them debatable”).

11.See Lawrence Lessig,“Fidelity in Translation,”TexasLawReview71 (1993):1165,1230. 12.Olmstead v.United States, 277 US 438, 470 (1928), 464–65. 13. Ibid., brief for the Pacific Telephone and Telegraph Company (nos. 493, 532, 533). 14. Ibid., 473 (Justice Louis Brandeis dissenting).

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15.“Translation”is not Brandeis’s term, though it is a term of the courts.The idea is best captured by Justice Robert H.Jackson inWestVirginiaStateBoardofEducationv.Barnette,319 US 624, 639–40 (1943):“Nor does our duty to apply the Bill of Rights to assertions of official authority depend upon our possession of marked competence in the field where the invasion of rights occurs. True, the task of translating the majestic generalities of the Bill of Rights, conceived as part of the pattern of liberal government in the eighteenth century, into concrete restraints on officials dealing with the problems of the twentieth century, is one to disturb self-confidence.These principles grew in soil which also produced a philosophy that the indi- vidual was the center of society, that his liberty was attainable through mere absence of govern- mental restraints, and that government should be entrusted with few controls and only the mildest supervision over men’s affairs. We must transplant these rights to a soil in which the laissez-faire concept or principle of non-interference has withered at least as to economic affairs, and social advancements are increasingly sought through closer integration of society and through expanded and strengthened governmental controls. These changed conditions often deprive precedents of reliability and cast us more than we would choose upon our own judgment.But we act in these matters not by authority of our competence but by force of our commissions.We cannot,because of modest estimates of our competence in such specialties as public education, withhold the judgment that history authenticates as the function of this Court when liberty is infringed.”

16.See Robert Post,ConstitutionalDomains:Democracy,Community,Management (Cam- bridge, Mass.: Harvard University Press, 1995), 60–64.

17. See Lessig,“Fidelity in Translation,”1214–68; Lawrence Lessig,“Translating Federal- ism: United States v Lopez,”Supreme Court Review 1995 (1995): 125, 146. For a more sophis- ticated analysisof how changing technologies in the context of telecommunications is affecting legislation and judicial doctrine,see Monroe E.Price and John F.Duffy,“Technological Change and Doctrinal Persistence:Telecommunications Reform in Congress and the Court,”Columbia Law Review 97 (1997): 976.

18. So, for example, the translations to support federalism are translations on the right, while the translations to support criminal rights are translations on the left.

19.Katz v.United States, 389 US 347, 353 (1967). 20. Laurence H. Tribe, “The Constitution in Cyberspace: Law and Liberty Beyond the

Electronic Frontier,” address at the First Conference on Computers, Freedom, and Privacy, March 26, 1991, reprinted in The Humanist (September-October 1991): 15, 20–21.

21.Katz v.United States, 389 US 347, 351 (1967). 22.As the history of the FourthAmendment’s protection of privacy since Katz will attest,

the technique used by Stewart was in the end quite ineffectual.When tied to property notions, no doubt the reach of the Fourth Amendment was narrow.But at least its reach went as far as the reach of property.Because“property”is a body of law independent of privacy questions, it was resilient to the pressures that privacy placed on it.But once the Court adopted the“reason- able expectation of privacy” test, it could later restrict these “reasonable expectations” in the Fourth Amendment context,with little consequence outside that context.The result has been an ever-decreasing scope for privacy’s protection.

23. See Lessig,“Translating Federalism,”206–11. 24. Tribe,“The Constitution in Cyberspace,”15. 25.See Lawrence Lessig,“Reading the Constitution in Cyberspace,”EmoryLawJournal45

(1996): 869, 872. 26. This example is drawn from Maryland v.Craig, 497 US 836 (1990). 27. See Tribe,“The Constitution in Cyberspace,”15. 28.“A latent ambiguity arises from extraneous or collateral facts which make the meaning

of a written instrument uncertain although the language thereof be clear and unambiguous.

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The usual instance of a latent ambiguity is one in which a writing refers to a particular person or thing and is thus apparently clear on its face, but upon application to external objects is found to fit two or more of them equally”; Williston on Contracts, 3d ed., edited by Walter H. E. Jaeger (Mount Kisco, N.Y.: Baker,Voorhis, 1957), 627, 898.

29. See United States v.Virginia, 518 US 515, 566–67 (1996) (Justice Antonin Scalia dis- senting).

30. Related work has been done under the moniker the “New Judicial Minimalism.” See Christopher J.Peters and Neal Devins,“Alexander Bickel and the New Judicial Minimalism,”in The JudiciaryandAmericanDemocracy,Kenneth D.Ward and Cecilia R.Castillo,eds. (Albany: State University of NewYork Press, 2005).

31. See Bernard Williams, “The Relations of Philosophy to the Professions and Public Life,”unpublished manuscript.

32.For a strong argument against a strong role for judicial review in matters such as this, see Orin Kerr, “The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution,”Michigan Law Review 102 (March 2004): 801.

CHAPTER TEN

1. Harold Smith Reeves,“Property in Cyberspace,”University of Chicago Law Review 63 (1996): 761.

2. This in the end was not his conclusion. He concluded instead, not that boundaries should not be protected in cyberspace, but rather that the unconventional nature of cyber- space requires that boundaries be set along nontraditional context-specific lines.This conclu- sion, Reeves asserts, requires the law to understand both the environment of cyberspace and the interests of those who transact in that space; see ibid., 799.

3.Cf.Yochai Benkler,“Free as theAir to Common Use: FirstAmendment Constraints on Enclosure of the Public Domain,”NewYork University Law Review 74 (1999): 354.

4. Maureen O’Rourke has extended the idea of the technological fences that cyberspace might provide, describing techniques that websites, for example, might use to control, or block, links from one site to another; see“Fencing Cyberspace: Drawing Borders in a Virtual World,”MinnesotaLawReview 82 (1998): 610,645–47.See,e.g.,Thrifty-Tel, Inc. v.Bezenek, 46 Cal.App. 4th 1559 (Cal. Ct.App. 1996) (Trespass to chattel claim involving defendant’s chil- dren hacking plaintiff’s confidential code to make long distance phone calls); Intel v.Hamidi, 30 Cal.4th 1342 (Cal.2003) (Trespass to chattels claim involving Hamidi,a former employee, using Intel’s employee list-serve to send e-mails to employees); eBay v. Bidder’s Edge, 100 F. Supp.2d 1058 (D.Cal.2000) (eBay sought to prevent Bidder’s Edge,an Internet-based auction aggregation site, from use of an automated query function without eBay’s authorization); Register.comv.Verio, 356 F.3d 393 (2d.Cir.2004) (Register.com sought to preventVerio from using its trademark or online databases to solicit business from lists provided on the Register.com website);AmericaOnline, Inc. v. IMS, 1998 U.S.Dist.LEXIS 20645 (D.Va.1998) (America Online alleged that IMS was sending unsolicited bulk e-mail advertisements to its members in violation of the Lanham Act, 15 U.S.C.S 1125).

5. See, for example, Stephen Breyer,“The Uneasy Case for Copyright: A Study of Copy- right in Books, Photocopies, and Computer Programs,”Harvard Law Review 84 (1970): 281.

6. There is a ferocious debate about whether these separate forms of regulation—copy- right, patent, and trademark—should be referred to together as “Intellectual Property.” I myself have gone both ways on this question, but currently believe it is harmful not to refer to these distinct bodies of law as“intellectual property.”Though of course these domains are different, calling them by the same name doesn’t necessarily confuse (no one is confused

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about the difference between a tiger and a kitty cat, even if they’re both called “cats”). More importantly,by not calling them by the same name,we lose a chance to point out inconsisten- cies in the way these different forms of property are treated. For example, both patent and trademark benefit from significant formalities built into each system; when you notice those formalities are absent from “copyright,” one is led to wonder why one form of “intellectual property” is free of formalities, while the other two are not.

7. Paul Goldstein, Copyright’s Highway: From Gutenberg to the Celestial Jukebox (Stan- ford: Stanford University Press, 2003) 64, 103:“Little did I realize at the time that this was all going to have its effect on television and motion pictures andVCRs, and the whole gamut of things which are affected by copyright law,which of course weren’t even thought of when we made our move.We were dealing with a fairly simple operation—Xerox.Now it’s become hor- ribly complicated.”

8. “Intellectual Property and the National Information Infrastructure: The Report of the Working Group on Intellectual Property Rights,” U.S. Department of Commerce, 1995; hereafter “White Paper.” George Smirnoff III (“Copyright on the Internet: A Critique of the White Paper’s Recommendation for Updating the Copyright Act and How the Courts Are Already Filling in Its Most Important Shortcoming,Online Service Provider Liability,”Cleve- landStateLawReview44 [1996]:197) criticizes theWhite Paper’s lack of completeness, incon- sistencies, and apparent lack of adequate consideration; see also Pamela Samuelson, “The Copyright Grab,” Wired (January 1996): 134, 136. By contrast, Gary W. Glisson (“A Practi- tioner’s Defense of the White Paper,” Oregon Law Review 75 [1996]: 277) argues that the White Paper is neither a misleading summary of the state of intellectual property law nor a proposal for dramatic changes. For an extensive analysis of the copyright issues raised by cyberspace, see Trotter Hardy,“Project Looking Forward: Sketching the Future of Copyright in a Networked World,”U.S. Copyright Office final report (1998), available at link #63.

9. For a summary of the changes called for by the White Paper, see Bruce Lehman, address before the Inaugural Engelberg Conference on Culture and Economics of Participa- tion in an International Intellectual Property Regime,reprinted inNewYorkUniversity Journal of International Law and Politics 29 (1996–97): 211, 213–15;“White Paper,”17.

10. The most important such threat is the anticircumvention provision of the Digital Millennium Copyright Act, which makes it a crime (subject to complex exceptions) to man- ufacture code to circumvent a copyright protection mechanism,even if the use of the under- lying material itself would be a fair use; see Pub.L.105–304,112 Stat 2877 (1998) (prohibiting the manufacture, importation,or distribution of“devices,products,components”that“defeat technological methods of preventing unauthorized use”).

11. See John Perry Barlow,“The Economy of Ideas,” Wired (March 1994), 129; see also John Perry Barlow,“Papers and Comments of a Symposium on Fundamental Rights on the Information Superhighway,” Annual Survey of American Law 1994 (1994): 355, 358. Barlow argues that“it is not so easy to own that which has never had any physical dimension what- soever,” unlike traditional forms of property.“We have tended to think,”he adds,“that copy- right worked well because it was physically difficult to transport intellectual properties without first manifesting them in some physical form. And it is no longer necessary to do that.”

12. See Mark Stefik, “Shifting the Possible: How Trusted Systems and Digital Property Rights Challenge Us to Rethink Digital Publishing,”BerkeleyTechnologyLawJournal12 (1997): 137;Mark Stefik,“TrustedSystems,”ScientificAmerican (March 1997):78;Mark Stefik,“Letting Loose the Light: Igniting Commerce in Electronic Publication,” in Stefik, Internet Dreams, 220–22, 226–28.

13.See Joel R.Reidenberg,“Governing Networks and Rule-Making in Cyberspace,”Emory Law Journal 45 (1996): 911.

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14. See Mark Stefik, “Shifting the Possible: How Trusted Systems and Digital Property Rights Challenge Us to Rethink Digital Publishing,”BerkeleyTechnologyLawJournal12 (1997).

15. In “Shifting the Possible” (142–44), Stefik discusses how trusted printers combine four elements—print rights, encrypted online distribution, automatic billing for copies, and digital watermarks—in order to monitor and control the copies they make.

16. Ibid. 17. Stefik,The Internet Edge, 91. 18. Sony v. Universal Studios, Inc., 464 U.S. 417, 432 (1984). 19.See David Hackett Fischer,Albion’s Seed:FourBritishFolkways inAmerica (NewYork:

Oxford University Press, 1989), 765. 20. See American Legal Realism, edited by William W. Fisher III et al. (New York:

Oxford University Press, 1993), 98–129; John Henry Schlegel, American Legal Realism and Empirical Social Science (Chapel Hill: University of North Carolina Press, 1995). For a nice modern example of the same analysis, see Keith Aoki, “(Intellectual) Property and Sover- eignty: Notes Toward a Cultural Geography of Authorship,”Stanford Law Review 48 (1996): 1293.

21. See Fried, The Progressive Assault on Laissez-Faire, 1–28; see also Joel P. Trachtman (“The International Economic Law Revolution,”University of Pennsylvania Journal of Interna- tionalEconomicLaw17 [1996]:33,34),who notes that many realists and critical legal theorists have asserted that“private law”is an oxymoron.

22. Judges have also made this argument; see Lochner v. New York, 198 US 45, 74 (1905) (Justice Oliver Wendell Holmes Jr. dissenting).

23. This is the epistemological limitation discussed in much of Friedrich A. von Hayek’s work; see, for example, Law, Legislation, and Liberty, vol. 2 (Chicago: University of Chicago Press, 1978).

24. Boyle, Shamans, Software, and Spleens, 174. 25. I am hiding a great deal of philosophy in this simplified utilitarian account, but for a

powerful economic groundingof thepoint, seeHaroldDemsetz,“Towarda Theory of Property Rights,”American Economics Review 57 (1967): 347.

26.For a wonderfully clear introduction to this point,as well as a complete analysis of the law, see Robert P. Merges et al., Intellectual Property in the New Technological Age (New York: Aspen Law and Business, 1997), ch. 1.

27.Thomas Jefferson, letter to Isaac Mcpherson,August 13,1813,reprinted inWritingsof Thomas Jefferson, 1790–1826, vol. 6, edited by H. A. Washington (1854), 180–81, quoted in Graham v. John Deere Company, 383 US 1, 8–9 n.2 (1966).

28.For the classic discussion,see Kenneth J.Arrow,“EconomicWelfare and theAllocation of Resources for Invention,”inTheRateandDirectionof InventiveActivity:EconomicandSocial Factors (Princeton, N.J.: Princeton University Press, 1962), 609, 616–17.

29. For a powerfully compelling problematization of the economic perspective in this context, see Boyle,“Intellectual Property Policy Online,”35–46.Boyle’s work evinces the inde- terminacy that economics ought to profess about whether increasing property rights over information will also increase the production of information.

30.Some insist on calling this“property”; see Frank H.Easterbrook,“Intellectual Property Is Still Property,”Harvard Journal of Law and Public Policy 13 (1990): 108.

31. This is the message of Justice Stephen Breyer’s work on copyright, for example,“The Uneasy Case for Copyright.”

32. See Eldred v.Ashcroft, 537 U.S. 186 (2003). 33.For an extensive and balanced analysis, seeWilliam M.Landes and RichardA.Posner,

“An Economic Analysis of Copyright Law,” Journal of Legal Studies 18 (1989): 325, 325–27, 344–46. These authors note that because ideas are a public good—that is, an infinite number

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of people can use an idea without using it up—ideas are readily appropriated from the creator by other people.Hence,copyright protection attempts to balance efficiently the benefits of cre- ating new works with the losses from limiting access and the costs of administering copyright protection; copyright protection seeks to promote the public benefit of advancing knowledge and learning by means of an incentive system. The economic rewards of the marketplace are offered to authors in order to stimulate them to produce and disseminate new works (326).See also Richard Posner, Law and Literature (Cambridge, Mass.: Harvard University Press, 1998), 389–405; William M. Landes and Richard Posner,The Economic Structure of Intellectual Prop- erty Law (Cambridge, Mass.: Harvard University Press, 2003), 8–9.

34.These limits come from both the limits in the copyright clause,which sets its purposes out quite clearly, and the First Amendment; see, for example, Feist Publications, Inc. v. Rural Telephone Service Co., 499 US 340, 346 (1991).

35. The “first sale” doctrine was developed under 27 of the former Copyright Act (17 USC [1970]) and has since been adopted under 109(a) of the present CopyrightAct; seeUnited States v.Goss, 803 F2d 638 (11th Cir 1989) (discussing both versions of the Copyright Act).

36. Europeans like to say that “moral rights” have been part of their system since the beginningof time,but asProfessor JaneC.Ginsburghas shown with respect to France, they are actually a nineteenth-century creation; see “A Tale of Two Copyrights: Literary Property in Revolutionary France and America,”Tulane Law Review 64 (1990): 991.

37. Daniel Benoliel, “Technological Standards, Inc.: Rethinking Cyberspace Regulative Epistemology,”92 California Law Review 1069, 1114 (2004).

38. See Universal Studios, Inc. v.Corley, 273 F.3d 429 (2d Cir. 2001). 39. Stefik,The Internet Edge, 99–100. 40. See, e.g.,People v.NetworkAssociates, Inc., 195 Misc. 2d 384 (N.Y. Misc. 2003). 41.SeeWilliamW.Fisher III,“CompulsoryTerms inInternet-RelatedContracts,”Chicago-

Kent Law Review 73 (1998). Fisher catalogs public policy restrictions on freedom of contract, which he characterizes as“ubiquitous.”

42. Stefik,The Internet Edge, 91–7. 43. See Lessig,Free Culture:The Nature and Future of Creativity, xiv–xvi. 44. Yochai Benkler, “Net Regulation: Taking Stock and Looking Forward,” University of

Colorado Law Review 71 (2000): 1203, 1254. 45.SeeCampbell v.Acuff-RosePublishing,510 U.S.569 (1994).Gordon (“Fair Use as Mar-

ket Failure”) argues that the courts should employ fair use to permit uncompensated transfers that the market is incapable of effectuating; see also Wendy J.Gordon,“On Owning Informa- tion: Intellectual Property and Restitutionary Impulse,”VirginiaLawReview78 (1992):149. In “Reality as Artifact: From Feist to Fair Use”(Law and Contemporary Problems 55 5PG [1992]: 93, 96), Gordon observes that, while imaginative works are creative, they may also comprise facts,which need to be widely available for public dissemination.Gordon’s“Toward a Jurispru- dence of Benefits:The Norms of Copyright and the Problem of Private Censorship”(University of Chicago Law Review 57 [1990]: 1009) is a discussion of the ability of copyright holders to deny access to critics and others; see alsoWendy Gordon,“An Inquiry into the Merits of Copy- right: The Challenges of Consistency, Consent, and Encouragement Theory,” Stanford Law Review 41 (1989): 1343.

46.SeeGibbonsv.Ogden,22 US 1 (1824) (striking down NewYork’s grant of a monopoly of steamboat navigation on the Hudson River as inconsistent with the federal Coasting Act of 1793);McCullochv.Maryland,17 US 316 (1819) (pronouncing that Congress has the power to do what is“necessary and proper”to achieve a legitimate end, like the regulation of interstate commerce).

47.See Bernard C.Gavit,TheCommerceClauseof theUnitedStatesConstitution (Bloom- ington, Ind.: Principia Press, 1932), 84.

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48. See Pensacola Telegraph Company v.Western Union Telegraph Company, 96 US 1, 9 (1877).

49. As one commentator put it near the turn of the century:“If the power of Congress has a wider incidence in 1918 than it could have had in 1789, this is merely because produc- tion is more dependent now than then on extra-state markets. No state liveth to itself alone to any such extent as was true a century ago. What is changing is not our system of govern- ment, but our economic organization”; Thomas Reed Powell, “The Child Labor Law, the Tenth Amendment, and the Commerce Clause,” Southern Law Quarterly 3 (1918): 175, 200–201.

50. See Alexis de Tocqueville, Democracy in America, vol. 1 (New York: Vintage, 1990), 158–70, on the idea that the framers’ design pushed states to legislate in a broad domain and keep the local government active.

51.SeeMarylandv.Wirtz,392 US 183,201 (1968) (JusticeWilliam O.Douglas dissenting: The majority’s bringing of employees of state-owned enterprises within the reach of the com- merce clause was“such a serious invasion of state sovereignty protected by the Tenth Amend- ment that it . . . [was] not consistent with our constitutional federalism”); State Board of Insurance v. Todd Shipyards Corporation, 370 US 451, 456 (1962) (holding that“the power of Congress to grant protection to interstate commerce against state regulation or taxation or to withhold it is so complete that its ideas of policy should prevail”) (citations omitted).

52. See Michael G. Frey,“Unfairly Applying the Fair Use Doctrine: Princeton University Press v Michigan Document Services,99 F3d 1381 (6th Cir 1996),”UniversityofCincinnatiLaw Review66(1998):959,1001;Freyasserts that“copyrightprotectionexistsprimarily for theben- efit of the public,not the benefit of individual authors.Copyright law does give authors a con- siderable benefit in terms of the monopolistic right to control their creations, but that right exists only to ensure the creation of new works. The fair use doctrine is an important safety valve that ensures that the benefit to individual authors does not outweigh the benefit to the public”;MarlinH.Smith(“TheLimitsof Copyright:Property,Parody,andthePublicDomain,” DukeLawJournal42 [1993]:1233,1272)asserts that“copyright law isbetter understoodas that of a gatekeeper, controlling access to copyrighted works but guaranteeing, via fair use, some measure of availability to the public.”

53. Stefik, “Letting Loose the Light,” 244. For an excellent use of the general analysis of Code to argue that the specific analysis of this chapter is mistaken, see John Tehranian, “All Rights Reserved? Reassessing Copyright and Patent Enforcement in the DigitalAge,”University of Cincinnati Law Review 72 (2003): 45.

54.Efficient here both in the sense of cheap to track and in the sense of cheap to then dis- criminate in pricing;William W.Fisher III,“Property and Contract on the Internet,”Chicago- Kent Law Review 74 (1998).

55. Julie E. Cohen,“A Right to Read Anonymously: A Closer Look at ‘Copyright Man- agement’ in Cyberspace,” Connecticut Law Review 28 (1996): Reading anonymously is “so intimately connected with speech and freedom of thought that the First Amendment should be understood to guarantee such a right”(981, 982). Cohen has extended her analysis in the context of technology that didn’t gather private information. See Julie E. Cohen,“DRM and Privacy,”BerkeleyTechnologyLawJournal 18 (2003): 575.See also Helen Nissenbaum,“Secur- ing Trust Online: Wisdom or Oxymoron,” Boston University Law Review 81 (2001): 635 (describing the dynamic of trust emerging systems will evoke). For related, and powerful work, see Sonia K. Katyal, “The New Surveillance,” Case Western Reserve Law Review 54 (2003): 297.

56.“The freedom to read anonymously is just as much a part of our tradition, and the choiceof readingmaterials just asexpressiveof identity,as thedecision touseor withholdone’s name”(Cohen,“A Right to Read Anonymously,”1012).

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57.See Olmsteadv.UnitedStates 277 US 438,474 (1928) (Justice Louis Brandeis dissent- ing:“Can it be that the Constitution affords no protection against such invasions of individual security?”).

58.See Jessica Litman,“The Exclusive Right to Read,”CardozoArtsandEntertainmentLaw Journal 13 (1994): 29.

59. See Dan Hunter and F. Gregory Lastowka,“Amateur-to-Amateur,”William and Mary Law Review 46 (December 2004): 951, 1026–27.

60. Lasica,Darknet: Hollywood’sWarAgainst the Digital Generation 18. (“The director of MIT’s Comparative Media Studies Program and author of nine books on popular culture, [Henry] Jenkins says that from an early age, children reimagine what you can do with charac- ters and settings from movies and TV.They play video games that permit control over a char- acter within limited boundaries.Newer games allow an even broader range of interactivity and behaviors.Whentheygetonline, theycanshare stories,andchildrenasyoungas sevenarepost- ing to fan fiction sites with simple but interesting stories about Harry Potter and Pokemon.”)

61.SivaVaidhyanathan,“Remote Control:The Rise of Electronic Cultural Policy,”Annals of theAmericanAcademy of Political and Social Science 597, 1 (January 1, 2005): 126.

62. Lasica, Darknet: Hollywood’s War Against the Digital Generation, 78, quoting Ernest Miller.

63.From DJ Danger MouseWeb2.0Conferencepresentation“Music Isa Platform,”Octo- ber 6, 2004, quoted in Lasica,Darknet: Hollywood’sWarAgainst the Digital Generation, 211.

64. See, for example, anime music videos, available at link #64. 65. Peter Huber relies explicitly on the high costs of control in his rebuttal to Orwell’s

1984; seeOrwell’sRevenge:The1984Palimpsest (NewYork: Maxwell Macmillan International, 1994).But this is a weak basison which to build liberty,especially as thecost of networkedcon- troldrops.FrancesCairncross (TheDeathofDistance:HowtheCommunicationsRevolutionWill ChangeOurLives [Boston:HarvardBusiness School Press,1997],194–95) effectively challenges the idea as well.

66. Lessig,The Future of Ideas:The Fate of the Commons in a ConnectedWorld, 19–23. 67.A founding work is David Lange,“Recognizing the Public Domain,”LawandContem-

poraryProblems44 (1981):147.There are many important foundations,however, to this argu- ment. See, for example, Benjamin Kaplan, An Unhurried View of Copyright (New York: Columbia University Press,1967).Gordon (“Fair UseasMarket Failure”)argues that thecourts should employ fair use to permit uncompensated transfers that the market is incapable of effectuating; see also Wendy J. Gordon,“On Owning Information: Intellectual Property and Restitutionary Impulse,”VirginiaLawReview78 (1992):149. In“Reality asArtifact:From Feist to Fair Use”(Law and Contemporary Problems 55 5PG [1992]: 93, 96), Gordon observes that, while imaginative works are creative, they may also comprise facts, which need to be widely available for public dissemination.Gordon’s“Toward a Jurisprudence of Benefits: The Norms of Copyright and the Problem of Private Censorship” (University of Chicago Law Review 57 [1990]:1009) is a discussionof theabilityof copyright holders todeny access tocriticsandoth- ers; see alsoWendy Gordon,“An Inquiry into the Merits of Copyright:The Challenges of Con- sistency, Consent, and Encouragement Theory,”Stanford Law Review 41 (1989): 1343.

68. In the first edition to this book, in addition to Boyle, I acknowledged broadly the work thathad informedmyunderstanding, includingKeithAoki,“ForewordtoInnovation and the Information Environment: Interrogating the Entrepreneur,”OregonLawReview75 (1996): 1; in“(Intellectual) Property and Sovereignty,”Aoki discusses the challenges to the traditional concept of property that arise from the growth of digital information technology; in“Authors, Inventors, and Trademark Owners: Private Intellectual Property and the Public Domain” (Columbia-VLAJournal of Lawand theArts 18 [1993]: 1),he observes the shifting boundaries in intellectual property law between“public”and“private”realms of information and argues

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that trends to increase the number of exclusive rights for authors are converting the public domain into private intellectual property and constraining other types of socially valuable uses of expressive works that do not fit the“authorship”model underlyingAmerican copyright traditions;he also argues that recent expansion of trademark law has allowed trademark own- ers to obtain property rights in their trademarks that do not further the Lanham Act’s goal of preventing consumer confusion. Benkler,“Free as the Air to Common Use”; Yochai Benkler, “OvercomingAgoraphobia:Building the Commons of the Digitally Networked Environment,” Harvard Journal of Law and Technology 11 (1998): 287; Julie E. Cohen, “Copyright and the Jurisprudence of Self-Help,”Berkeley Technology Law Journal 13 (1998): 1089; Julie E. Cohen, “Lochner in Cyberspace: The New Economic Orthodoxy of ‘Rights Management,’”Michigan LawReview97 (1998):462; Julie E.Cohen,“Some Reflections on Copyright Management Sys- tems and Laws Designed to Protect Them,” Berkeley Technology Law Journal 12 (1997): 161, 181–82; Julie E.Cohen,“Reverse-Engineering and the Rise of ElectronicVigilantism: Intellec- tual Property Implicationsof ‘Lock-Out’Programs,”SouthernCaliforniaLawReview68 (1995): 1091. Niva Elkin-Koren,“Contracts in Cyberspace: Rights Without Laws,” Chicago-Kent Law Review73(1998);NivaElkin-Koren,“CopyrightPolicyandtheLimitsof Freedomof Contract,” Berkeley Technology Law Journal 12 (1997): 93, 107–10 (criticizing the ProCD decision); Niva Elkin-Koren, “Cyberlaw and Social Change: A Democratic Approach to Copyright Law in Cyberspace,”Cardozo Arts and Entertainment Law Journal 14 (1996): 215; in “Copyright Law and Social Dialogue on the Information Superhighway: The Case Against Copyright Liability of Bulletin Board Operators” (Cardozo Arts and Entertainment Law Journal 13 [1995]: 345, 390–99), Elkin-Koren analyzes the problems created by applying copyright law in a digitized environment. In “Goodbye to All That—A Reluctant (and Perhaps Premature) Adieu to a Constitutionally Grounded Discourse of Public Interest in Copyright Law”(Vanderbilt Journal ofTransnationalLaw 29 [1996]: 595),PeterA. Jaszi advocates the development of new,policy- grounded arguments and constitutionally based reasoning to battle expansionist legislative and judicial tendencies in copyright to diminish public access to the“intellectual commons”; see also PeterA.Jaszi,“On theAuthor Effect:Contemporary Copyright and Collective Creativ- ity,”CardozoArtsandEntertainmentLawJournal10(1992):293,319–20;PeterA.Jaszi,“Toward a Theory of Copyright: The Metamorphoses of ‘Authorship,’”Duke Law Journal 1991 (1991): 455. On the misuse of copyright, see Mark A. Lemley, “Beyond Preemption: The Law and Policy of Intellectual Property Licensing,”87CaliforniaLawReview,111 (1999);MarkA.Lem- ley, “The Economics of Improvement in Intellectual Property Law,” Texas Law Review 75 (1997):989,1048–68; in“Intellectual Property and Shrink-wrap Licenses”(SouthernCalifornia Law Review 68 [1995]: 1239, 1239), Lemley notes that “software vendors are attempting en masse to ‘opt out’of intellectual property law by drafting license provisions that compel their customers to adhere to more restrictive provisions than copyright . . . law would require.” Jessica Litman (“The Tales That Article 2B Tells,”Berkeley Technology Law Journal 13 [1998]: 931, 938) characterizes as“dubious”the notion that current law enables publishers to make a transaction intoa licensebysodesignating it. Inherview,article2B is“confusingandconfused” about copyright and its relationship with that law,and would make new law.She believes that “whatever the outcome”of the debate over whether copyright makes sense in the digital envi- ronment (see “Reforming Information Law in Copyright’s Image,” Dayton Law Review 22 [1997]: 587, 590),“copyright doctrine is ill-adapted to accommodate many of the important interests that inform our information policy. First Amendment, privacy, and distributional issues that copyright has treated only glancingly are central to any information policy.”See also Jessica Litman, “Revising Copyright Law for the Information Age,” Oregon Law Review 75 (1996):19;and“The Exclusive Right to Read”(CardozoArtsandEntertainmentLawJournal13 [1994]: 29,48), in which Litman states that“much of the activity on the net takes place on the mistaken assumption that any material on the Internet is free from copyright unless expressly

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declared to be otherwise.” In “Copyright as Myth” (University of Pittsburgh Law Review 53 [1991]: 235, 235–37), Litman provides a general overview of the issues of authorship and infringement in copyright law, indicating that debate continues regarding the definition of “authorship”(she defines“author”“in the copyright sense of anyone who creates copyrightable works, whether they be books, songs, sculptures, buildings, computer programs, paintings or films” [236, n.5]); she also discusses why copyright law is counterintuitive to the authorship process.See also“The Public Domain”(EmoryLawJournal 39 [1990]: 965,969), in which Lit- man recommends a broad definition of the public domain (“originality is a keystone of copy- right law”[974]).NeilWeinstock Netanel,“Asserting Copyright’s Democratic Principles in the GlobalArena,”VanderbiltLawReview51 (1998):217,232 n.48,299 n.322;Neil Netanel,“Alien- ability Restrictions and the Enhancement of AuthorAutonomy in United States and Continen- tal Copyright Law,” Cardozo Arts and Entertainment Law Journal 12 (1994): 1, 42–43; in “[C]opyright and a Democratic Civil Society”(YaleLawJournal106 [1996]:283,288,324–36), Netanel analyzes copyright law and policy in terms of its democracy-enhancing function: “Copyright is in essence a state measure that uses market institutions to enhance the demo- cratic character of society.”Margaret Jane Radin and PolkWagner,“TheMyth of Private Order- ing: RediscoveringLegalRealism in Cyberspace,”Chicago-KentLawReview73(1998);Margaret Jane Radin,Reinterpreting Property (Chicago: University of Chicago Press, 1993), 56–63. Pam Samuelson,“Encoding the Law into Digital Libraries,”Communicationsof theACM41 (1999): 13, 13–14; Pamela Samuelson, foreword to “Symposium: Intellectual Property and Contract Law for the InformationAge,”CaliforniaLawReview87 (1998):1;Pamela Samuelson observes in “Embedding Technical Self-Help in Licensed Software” (Communications of the ACM 40 [1997]: 13, 16) that“licensors of software or other information . . . will generally invoke self- help”; see also the criticism of the European database directive in J. H. Reichman and Pamela Samuelson,“IntellectualProperty Rights in Data?,”VanderbiltLawReview50(1997):51,84–95; Samuelson,“The Copyright Grab,”134;Pamela Samuelson,“Fair Use for Computer Programs and Other CopyrightableWorks in Digital Form:The Implications of Sony,Galoob and Sega,” Journal of Intellectual Property Law 1 (1993): 49.

There is much more that I have learned from in the last seven years.But rather than repli- cating the listing style, I would point to Jessica Litman,DigitalCopyright:Protecting Intellectual Property on the Internet (Amherst,N.Y.: Prometheus Books,2000);Vaidhyanathan,Copyrights andCopywrongs;William Fisher,Promises toKeep:Technology,Law,and theFutureofEntertain- ment (Stanford: Stanford University Press, 2004), and Benkler,TheWealth of Networks.

69. Boyle, Shamans, Software, and Spleens. For other compelling accounts of the general movement to propertize information, see Debora J. Halbert, Intellectual Property in the Infor- mation Age: The Politics of Expanding Ownership Rights (Westport, Conn.: Quorum, 1999). Seth Shulman’sOwning theFuture (Boston:Houghton Mifflin,1999) gives the story its appro- priate drama. Internet Publishing and Beyond:The Economics of Digital Information and Intel- lectual Property (Brian Kahin and Hal R. Varian, eds., Cambridge, Mass.: MIT Press, 2000) (Internet publishing and intellectual property). A Handbook of Intellectual Property Manage- ment: Protecting, Developing and Exploiting Your IP Assets (Adam Jolly and Jeremy Philpott eds. [London: Kogan Page, 2004]) (intellectual property and intangible property).

70.“We favor a move away from the author vision in two directions; first towards recog- nition of a limited number of new protections for cultural heritage, folkloric productions,and biological‘know-how.’Second,and ingeneral,we favoran increasedrecognitionandprotection of the public domain by means of expansive ‘fair use protections,’ compulsory licensing, and narrower initial coverage of property rights in the first place”; Boyle, Shamans, Software, and Spleens, 169.

71. James Boyle, “A Politics of Intellectual Property: Environmentalism for the Net?,” Duke Law Journal 47 (1997): 87.

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CHAPTER ELEVEN

1.See Jonathan Zittrain,“What the Publisher Can Teach the Patient: Intellectual Property and Privacy in an Era of Trusted Privication,”Stanford Law Review 52 (2000): 1201.

2. Olmstead v. United States, 277 US 438 (1928). 3. International News Service v. Associated Press, 248 U.S. 215, 250 (1918) (Brandeis, dis-

senting). 4.Declan MCullagh and Elinor Mills collected the practices of all major search engines in

“Verbatim:Search FirmsSurveyedon Privacy,”CNETNEWS,February 3,2006,availableat link #65.

5. Stefik,The Internet Edge, 20. 6.The government too can snoop on e-mail conversation,but only with a warrant.Ordi-

narily, notice of the snooping is required.But the government can get a 90 day delay on giving that notice. See US Code Title 18, Section 2705(a)(i).

7. See Richard Posner, “Our Domestic Intelligence Crisis,” Washington Post, December 21, 2005, available at link #66.

8.See,e.g.,L.Grossman,“Welcome to the Snooper Bowl,”Time,February 12,2001,avail- able at link #67; D. McCullagh, “Call It Super Bowl Face Scan I,” Wired, February 2, 2001., available at link #68.

9.C-VIS,“What is Face Recognition Technology?”,available at link #69.For an argument that face recognition technology should be seen to violate the FourthAmendment, seeAlexan- der T. Nguyen, “Here’s Looking at You, Kid: Has Face-Recognition Technology Completely Outflanked The Fourth Amendment?”Virginia Journal of Law andTechnology 7 (2002): 2.

10. See Face RecognitionVendor Test Home Page, available at link #70. 11. Jeffrey Rosen,The Naked Crowd:Reclaiming Security and Freedom in anAnxiousAge

(NewYork: Random House, 2004), 34–53. 12.Lawrence Lessig,“On the Internet and the Benign Invasions of Nineteen Eighty-Four,”

in On “Nineteen Eighty-Four”: Orwell and Our Future, Abbott Gleason, Jack Goldsmith, and Martha C. Nussbaum eds. (Princeton: Princeton University Press, 2005), 212.

13.We’ve learned that the Defense Department is deeply involved in domestic intelligence (intelligence concerning threats to national security that unfold on U.S.soil).The department’s National Security Agency has been conducting, outside the framework of the Foreign Intelli- gence Surveillance Act, electronic surveillance of U.S. citizens within the United States. Other Pentagon agencies,notably the one known as Counterintelligence FieldActivity (CIFA),have, asdescribed inWalterPincus’s recentarticles in theWashingtonPost,beenconductingdomestic intelligence on a large scale.Although the CIFA’s formal mission is to prevent attacks on mili- tary installations in the United States, the scale of its activities suggests a broader concern with domestic security. Other Pentagon agencies have gotten into the domestic intelligence act, such as the Information Dominance Center, which developed the Able Danger data-mining program. Richard Posner,“Our Domestic Intelligence Crisis,”Washington Post, December 21, 2005, at A31.

14. Jeffrey Rosen, The Naked Crowd: Reclaiming Security and Freedom in an Anxious Age (NewYork: Random House, 2004), 34–53.

15.SeeAmerican Civil Liberties Union,“The Government is Spying onAmericans,”avail- able at link #71.

16.SeeMinnesotav.Dickerson,508US366,381(1993)(JusticeAntoninScaliaconcurring). 17. See, for example,William J. Stuntz,“Privacy’s Problem and the Law of Criminal Pro-

cedure,”MichiganLawReview 93 (1995): 1016,1026; in“The Substantive Origins of Criminal Procedure,”Stuntz discusses the origins of the Fourth Amendment.

18. Stuntz,“Privacy’s Problem and the Law of Criminal Procedure,”1026.

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19. Alien and Sedition Acts of 1798, Act of June 18, 1798, ch. 59, 1 Stat. 566 (repealed 1802),Act of June 25, 1798, ch. 63, 1 Stat. 570 (expired); Act of July 6, 1798, ch. 70, 1 Stat. 577 (expired),Act of July 14,1798,ch.77,1 Stat.596 (empowering the president to deport anyone he deems dangerous to the country’s peace and safety) (expired).The Alien and Sedition Acts were declared unconstitutional in New York Times Co. v. Sullivan, 376 US 254, 276 (1964), though,of course,by then their terms they had expired.See Neal Devins,ConstitutionalValues (Baltimore: Johns Hopkins University Press, 1996), on overruling (13); and James Morton Smith,Freedom’sFetters:TheAlienandSeditionLawsandAmericanCivilLiberties (Ithaca,N.Y.: Cornell University Press,1956),on the history,enforcement,and impact of theAlien and Sedi- tion Acts.

20. Stuntz,“Substantive Origins,”395. 21. See Cass Sunstein, Legal Reasoning and Political Conflict (Oxford University Press,

1996), 35–61. 22. Frank Main, “Blogger Buys Presidential Candidate’s Call List,” Chicago Sun-Times,

January 13, 2006, available at link #72. 23. Peter H. Lewis,“Forget Big Brother,”NewYorkTimes, March 19, 1998, G1. 24. Brin,TheTransparent Society, 8–15. 25.For a good story that effectively summarizes the state of Webadvertising,and for a dis-

cussion of how DoubleClick operates and the case study of 3M’s sale of projectors through the advertising placement company, see Aquantive, available at link #73 and 24-7 Real Media, available at link #74.

26. See Federal Trade Commission,“Privacy Online: A Report to Congress,” June 1998, n.107, available at link #75.

27. See Gandy,The Panoptic Sort, 1–3. 28.Johnson, InterfaceCulture,192–205.AndrewShapirocalls this the“feedbackeffect”but

argues that it narrows the range of choices; see Andrew Shapiro,The Control Revolution: How the Internet isPutting Individuals inChargeandChanging theWorldWeKnow (NewYork:Pub- licAffairs, 1999), 113.

29. See, for example,McIntyre v.Ohio Elections Commission, 514 US 334, 341–43 (1995). 30. See Janai S. Nelson, “Residential Zoning Regulations and the Perpetuation of

Apartheid,”UCLA Law Review 43 (1996): 1689, 1693–1704. 31.Examples of laws that aim at segregation based on social or economic criteria include:

regulations requiring a minimum lot size for housing; single-family ordinances prohibiting “nontraditional”families from living in certainareas; andresidential classifications that exclude apartment housing. All such restrictions significantly increase the cost of housing for lower- income individuals; see ibid., 1699–1700.

32. In 1926 the Supreme Court held zoning to be a valid exercise of local governmental power.See Village of Euclid v.AmblerRealtyCompany,272 US 365 (1926) (holding that a state has the right to separate incompatible uses). Not until the twentieth century were municipal- ities given much power to regulate areas of law such as zoning decisions; see Richard Briffault, “Our Localism: Part I—The Structure of Local Government Law,” Columbia Law Review 90 (1990): 1, 8–11, 19.

33. In 1917 the Supreme Court outlawed racial zoning as a violation of the Fourteenth Amendment; see Buchanan v.Warley, 245 US 60 (1917). However,“nonexclusionary”zoning regulation was used to preserve residential segregation;even though racially neutral and based on economic factors (ostensibly to prevent property devaluation),various laws and regulations haveresulted inde factosegregation; seeBriffault,“OurLocalism,”103–4;MeredithLeeBryant, “Combating School Resegregation Through Housing: A Need for a Reconceptualization of American Democracy and the Rights It Protects,”Harvard BlackLetter Journal 13 (1997): 127, 131–32.

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34. See Joel Kosman,“Toward an Inclusionary Jurisprudence: A Reconceptualization of Zoning,”Catholic University Law Review 43 (1993): 59, 77–86, 101–3.

35.See Gordon S.Wood,TheRadicalismof theAmericanRevolution (NewYork:AlfredA. Knopf, 1992), 5–8, 271–86.

36. See Lynne G. Zucker,“Production of Trust: Institutional Sources of Economic Struc- ture, 1840–1920,”Research in Organizational Behavior 8 (1986): 53.

37.Pricediscrimination is theability tochargedifferentprices for thesamegood.Airplane tickets are the best example—the same seat can cost hundreds of dollars more for a traveler who cannot stay over Saturday night. See, for example, Joseph Gregory Sidak, “Debunking Predatory Innovation,”ColumbiaLawReview 83 (1983): 1121,1132–35; see also Easterbrook, “Intellectual Property Is Still Property”; Fisher,“Reconstructing the Fair Use Doctrine,”1659; but see JanuszA.Ordover et al.,“Predatory Systems Rivalry:A Reply,”ColumbiaLawReview83 (1983): 1150, 1158–64.

38.VivianaA.Zelizer,TheSocialMeaningofMoney,2d ed.(Princeton:Princeton Univer- sity Press, 1994), 94–95 (footnote omitted).

39.SusanBrennerputs thepointverypowerfully.As she frames thequestion,“is it reason- able totranslate thevalues incorporate in theFourthAmendment intoacontextcreatedandsus- tainedbytechnology?”SusanBrenner,“ThePrivacyPrivilege:LawEnforcement,Technologyand the Constitution,” Journal of Technology Law and Policy 7 (2002): 123, 162. The question isn’t simplywhetheranonymityhasavalue—plainly itdoes.Thequestion instead is“howtotranslate rightsdevisedtodealwithrealworldconduct into[aworldwhere]greaterdegreesof anonymity arepossible. . . .”Ibid.,139–40.“Because the technologyalters thecontoursof theempirical envi- ronment in which the right to remain anonymous is exercised, it creates a tension between this aspect of the right to be let alone and the needs of effective law enforcement.”Ibid.,144.

40. Shawn C. Helms, “Translating Privacy Values with Technology,” Boston University Journalof ScienceandTechnologyLaw7 (2001):288,314.(“We should approach the translation of anonymity on the Internet through‘code’by developing and implementing privacy-enhanc- ing technologies.”)

41. As William McGeveran writes, Marc Rotenberg, one of privacy’s most important advocate, doesn’t view P3P as a PET “because Rotenberg defines a PET as technology that inherently reduces transfer of personal data.” William McGeveran, “Programmed Privacy Promises: P3P and Web Privacy Law,” New York University Law Review 76 (2001): 1813, 1826–27 n.80. I share McGeveran’s view that P3P is a PET.If privacy is control over how infor- mation about you is released, then a technology that enhances that control is a PET even if it doesn’t“reduce[ the] transferof personaldata”—so longas that reduction is consistentwith the preferences of the individual. No doubt, a PET could be a bad PET to the extent it fails to enable choice.But it isn’t a bad PET because it fails to enable the choice of someone other than the consumer.

For a wonderful account of how norms have risen to change data privacy practice, see Steven A. Hetcher,“Norm Proselytizers Create a Privacy Entitlement in Cyberspace,”Berkeley Technology Law Journal 16 (2001): 877.

42.See U.S.Department of Health,Education andWelfare,Secretary’sAdvisory Commit- tee on Automated Personal Data Systems, Records, Computers, and the Rights of Citizens viii (1973), cited at link #76.

43. Ibid. 44. Lior Jacob Strahilevitz nicely explores this fundamentally “empirical” question in “A

Social Networks Theory of Privacy,”University of Chicago Law Review 72 (2005): 919, 921. 45. See Guido Calabresi and A. Douglas Melamed,“Property Rules, Liability Rules, and

Inalienability: One View of the Cathedral,” Harvard Law Review 85 (1972): 1089, 1105–6. “Property rules involve a collective decision as to who is to be given an initial entitlement but

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notas to thevalueof theentitlement. . . .Liability rules involveanadditional stageof state inter- vention: not only are entitlements protected,but their transfer or destruction is allowed on the basis of a value determined by some organ of the state rather than by the parties themselves” (1092).

46. Ibid. 47. See, e.g., Mark A. Lemley, “Private Property,” Stanford Law Review 52 (2000): 1545,

1547;Paul M.Schwartz,“Beyond Lessig’s Code for Internet Privacy:Cyberspace Filter,Privacy- Control, and Fair Information Practices,” Wisconsin Law Review 2000 (2000): 743; Julie E. Cohen,“DRM and Privacy,”BerkeleyTechnologyLawJournal18 (2003):575,577;Marc Roten- berg,“Fair Information Practices and the Architecture of Privacy: (What Larry Doesn’t Get),” Stanford Technology Law Review (2001): 1, 89–90. Andrew Shapiro discusses a similar idea in The Control Revolution, 158–65.

48. See Neil M. Richards, “Reconciling Data Privacy and the First Amendment,” UCLA LawReview52 (2005):1148,116.Richards rightly identifies the brilliant EugeneVolokh as the strongest proponent of the view that the First Amendment restricts privacy property. But the comprehensive view Richards offers of the range of rules regulating privacy is quite persuasive against theVolokh position.

49. William McGeveran, “Programmed Privacy Promises: P3P and Web Privacy Law,” NewYork University Law Review 76 (2001): 1813, 1843.

50. The important limit to contracts, however, is that they typically bind only people “within privity,”meaning parties to the contract.Thus,an agreement I enter in with you about how you promise not to use a book I’ve sold you (e.g., a promise not to review it before a cer- tain date) won’t bind someone else who comes across the book and reads it.

51. As described above, the weakness is linked to the point above about“privity.”Unlike a rule of property that travels automatically with the property, a rule built out of agreements reaches only as far as the agreements.

52.Barlow,“The Economy of Ideas,”Wired (March 1994),available at link #77 (“informa- tion wants to be free”).

CHAPTER TWELVE

1.See 47 CFR 73.658(e) (1998); see also Herbert J.Rotfeld et al.,“Television Station Stan- dards for Acceptable Advertising,” Journal of ConsumerAffairs 24 (1990): 392.

2. See Strafgesetzbuch (penal code) (StGB) 130–31, reprinted in German Criminal Law, vol.1,edited by Gerold Harfst, translated by OttoA.Schmidt (Würzburg:HarfstVerlag,1989), 75–76.

3.Built by industry but also especially by Cypherpunks—coders dedicated to building the tools for privacy for the Internet. As Eric Hughes writes in “A Cypherpunk’s Manifesto” (in Applied Cryptography, 2d ed., by Bruce Schneier [New York: Wiley, 1996], 609): “We the Cypherpunks are dedicated to building anonymous systems. We are defending our privacy with cryptography, with anonymous mail forwarding systems, with digital signatures, and with electronic money.Cypherpunks write code.We know that someone has to write software to defend privacy, and since we can’t get privacy unless we all do, we’re going to write it. We publishourcodeso thatour fellowCypherpunks may practiceandplay with it.Ourcode is free for all to use, worldwide.”

4. John Perry Barlow has put into circulation the meme that, “in cyberspace, the First Amendment is a local ordinance”;“Leaving the Physical World,”available at link #78.

5.Or it may well be that our understanding of FirstAmendment doctrine is insufficiently focused on its history with electronic media.See MarvinAmmori,“AnotherWorthy Tradition:

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HowtheFreeSpeechCurriculumIgnoresElectronicMediaandDistortsFreeSpeechDoctrine,” Missouri Law Review 70 (2005): 59.

6. See David Rudenstine, The Day the Presses Stopped: A History of the Pentagon Papers Case (Berkeley: University of California Press, 1996), 101, 139.

7. Ibid., 100. 8. See ibid., 2. 9. See ibid., 2, 42. 10. Ibid., 47–63. 11.Sanford J.Ungar,ThePapersand thePapers:AnAccountof theLegalandPoliticalBattle

over thePentagonPapers (NewYork:ColumbiaUniversityPress,1989),120;cited inRudenstine, The Day the Presses Stopped, 92.

12. See Rudenstine,The Day the Presses Stopped, 105. 13.Near v.Minnesota, 283 US 697, 716 (1931); cf.United States v.Noriega, 917 F2d 1543

(11th Cir 1990) (affirming the prior restraint of audiotapes of the defendant’s conversations with his US 976 (1990) (Justice Thurgood Marshall dissenting).

14.See, for example,Organization for a BetterAustin v.Keefe,402 US 415,418–19 (1971); Bantam Books, Inc.,v.Sullivan,372 US 58,70 (1963);Near v.Minnesota,283 US 697,713–14.

15. The standard arguments are summarized well by Kathleen M. Sullivan and Gerald Gunther:“(1) It is easier for an official to restrict speech‘by a simple stroke of the pen’than by the more cumbersome apparatus of subsequent punishment. . . . (2) Censors will have a pro- fessionalbias in favorof censorship,andthuswill systematicallyovervaluegovernment interests and undervalue speech. (3) Censors operate more informally than judges and so afford less procedural safeguards to speakers. (4) Speech suppressed in advance never reaches the market- place of ideas at all. (5) When speech is suppressed in advance, there is no empirical evidence from which to measure its alleged likely harms”;FirstAmendmentLaw (NewYork:Foundation Press, 1999), 339–40, citing Thomas Emerson, “The Doctrine of Prior Restraint,” Law and Contemporary Problems 20 (1955): 648. Frederick Schauer offers a nice balance to this com- monplace theory; see“Fear, Risk, and the First Amendment: Unraveling the ‘Chilling Effect,’” Boston University Law Review 58 (1978): 685, 725–30.

16. In a particularly telling exchange, Justice Stewart asked Professor Bickel about a case in which disclosure“would result in the sentencing to death of a hundred young men whose only offense had been that they were nineteen years old and had low draft numbers. What should we do?”Bickel replied that his“inclinations of humanity overcome the somewhat more abstract devotion to the First Amendment in a case of that sort”; May It Please the Court:The Most Significant Oral Arguments Made Before the Supreme Court Since 1955, edited by Peter Irons and Stephanie Guitton (NewYork: Free Press, 1993), 173.

17. In a concurring opinion, Justice Potter Stewart wrote that the prior restraint at issue was invalid since he could not“say that disclosure of [the Pentagon Papers] will surely result in direct, immediate,and irreparable damage to our Nation or its people”;NewYorkTimesCom- panyv.UnitedStates,403 US 713,730 (1971) (per curiam).This standard has frequently been thought toreflect thepositionof theCourt; seeLaurenceH.Tribe,AmericanConstitutionalLaw (Mineola,N.Y.:FoundationPress,1978),731;MortonH.HalperinandDanielN.Hoffman,Top Secret:NationalSecurityand theRight toKnow (Washington,D.C.:New Republic Books,1977), 147 n.22; see alsoAldermanv.PhiladelphiaHousingAuthority,496 F2d 164,170 (3d Cir 1974), cert.denied,419 US 844 (1974) (prior restraint must be supported by“compelling proof”that it is“essential to a vital government interest”).

18. See United States v. Progressive, Inc., 467 FSupp 990 (WDWis 1979); see also L. A. Powe Jr.,“The H-Bomb Injunction,”University of Colorado Law Review 61 (1990): 55, 56.

19.TheMilwaukeeSentinelandFusionmagazine had published articles dealing with sim- ilar concepts; seeA.DeVolpi et al.,BornSecret:TheH-Bomb,TheProgressiveCase,andNational

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Security (NewYork:PergamonPress,1981),102,106; seealsoHowardMorland,TheSecretThat Exploded (NewYork: Random House, 1981), 223, 225–26.

20. See Floyd Abrams, “First Amendment Postcards from the Edge of Cyberspace,” St. John’s Journal of Legal Commentary 11 (1996): 693, 699.

21. NTSB Chairman Jim Hall announced later that investigations confirmed that a fuel tank explosion caused the crash; see“Statement of Jim Hall, Chairman, National Transporta- tion Safety Board,”July 16, 1998, available at link #79.

22.See Robert E.Kessler,“TWA Probe:Submarines off Long Island/Sources: But No Link to Crash of Jetliner,”Newsday, March 22, 1997,A8.

23.See, for example, James Sanders,TheDowningofTWAFlight800 (NewYork:Kensing- ton Publishing, 1997), 131–37; Accuracy in Media et al., “TWA 800—Missile Website Roadmap,”available at link #80;Mark K.Anderson,“Friendly Ire,”available at link #81; IanW. Goddard,“TWA Flight 800 and Facts Pertaining to U.S.Navy Culpability,”available at link #82.

24. See Sanders,The Downing of TWA Flight 800, 29–30, 75, 70–79, 171–73. 25.We can tell that it is false, of course, as in,“The cat was alive and not alive.” 26. Initial CBS article on controversy: available at link #83;CBS acknowledgment of mis-

take: available at link #84. 27.See Howard Kurtz,“RatherAdmits‘Mistake in Judgment,’”WashingtonPost, Septem-

ber 21, 2004, A01. (“. . . ending a nearly two-week-long defense of the network’s journalistic conduct that media analysts say has badly hurt its credibility.”)

28. Jim Giles,“Internet Encyclopedias Go Head to Head,”news@nature.com, December 12, 2005, available at link #85.

29.See Cass Sunstein, Infortopia:HowManyMindsProduceKnowledge (NewYork:Oxford University Press, 2006).

30.See Seth Finkelstein,Al Gore“invented the Internet”—resources, transcript:Vice Pres- ident Gore on CNN’s Late Edition (last updated Fri April 28, 2006), available at link #86.

31. Ibid. 32. Ibid 33. Ginsburg v. New York, 390 US 629 (1968). Obscenity is not constitutionally protected

speech, and federal laws prohibit the transportation of obscene materials; see 18 USCA 1462 (1984), amended by 18 USCA 1462 (Supp 1999). In Miller v. California, the Supreme Court described the test for obscenity as: “(a) whether ‘the average person, applying contemporary community standards’would findthat thework,takenasawhole,appeals to theprurient inter- est; (b)whether theworkdepictsordescribes, inapatentlyoffensiveway,sexualconduct specif- ically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value”; Miller v.California, 413 US 15, 24 (1973) (5–4decision),rehearingdenied,414US881(1973).Porn,ontheotherhand,isprotectedbythe First Amendment but may be regulated to promote the state’s interest in protecting children fromharmfulmaterials so longas theregulation is the least restrictivemeans to further theartic- ulated interest; seeGinsbergv.NewYork,390US629,637–40(1968).Childpornmaybeprohib- ited as obscene material even if it is not obscene under the Miller test,owing to the strong state interest inpreventing thesexualexploitationof children; seeNewYorkv.Ferber,458US747,764 (1982).Childporn isnotconstitutionallyprotected,andfederal lawprohibits the transportation of child porn; see 18 USCA 2252 (1984),amended by 18 USCA 2252 (Supp 1999).

34. Justice Sandra Day O’Connor listed more than 40 states with such law in her concur- rence in Reno v.ACLU, 521 US 844, 887 n.2.

35.Ginsberg v.NewYork, 390 US 629 (1968). 36.See Blake T.Bilstad,“Obscenity and Indecency in a DigitalAge:The Legal and Political

Implications of Cybersmut, Virtual Pornography, and the Communications Decency Act of 1996,”Santa Clara Computer and HighTechnology Law Journal 13 (1997): 321, 336–37.

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37. Marty Rimm,“Marketing Pornography on the Information Superhighway: A Survey of 917,410Images,Descriptions,Short Stories,andAnimationsDownloaded8.5Million Times by Consumers in over 2,000 Cities in Forty Countries,Provinces,and Territories,”Georgetown UniversityLawJournal 83 (1995): 1849.Godwin provides the whole history of the Rimm arti- cle, describing the most significant problems and consequences of the“misleading”and“false” statements,and its eventual demise;CyberRights,206–59; see also JonathanWallace and Mark Mangan,Sex,Laws, and Cyberspace (NewYork: M&T Books, 1996), ch. 6.

38.See Philip Elmer-DeWitt,“On a Screen NearYou:Cyberporn—It’s Popular,Pervasive, and Surprisingly Perverse, According to the First Survey of Online Erotica—And There’s No Easy Way to Stamp It Out,”Time, July 3, 1995.

39. 47 USCA 223(e)(5)(A) (Supp 1999). 40. The law was extinguished (at least in part) at 521 US 844 (1997); see EugeneVolokh,

“Freedom of Speech,Shielding Children,and Transcending Balancing,”SupremeCourtReview 1997 (1997): 141.

41. See Federal Communications Commission v. Pacifica Foundation, 438 US 726, 748–50 (1978) (plurality). Though Pacifica has been criticized strongly, see Steven H. Shiffrin, The First Amendment, Democracy, and Romance (Cambridge, Mass.: Harvard University Press, 1990),80,as JonathanWeinbergconvincinglyargues,Pacificacontinues tohave influence in the broadcasting context; “Cable TV, Indecency, and the Court,” Columbia-VLA Journal of Law and theArts 21 (1997): 95.

42.Ashcroft v.ACLU, 540 U.S. 1072 (2003). Child Online Privacy Protection Act of 1998, Title XIV, Section 1401.

43.Ashcroft v.ACLU, 540 U.S. 1072 (2003). 44.Ginsberg v.NewYork, 390 U.S. 629 (1968). 45.There is also a doctrine within FirstAmendment law that might limit the ability of the

government to regulate when the regulation is ineffective. See Reno v.ACLU, 929 F. Supp 824, 848 (D. Pa.1996), where the court talks about how this regulation wouldn’t work in foreign jurisdictions anyway.

46.Ann Beeson and ChrisHansen,“Fahrenheit 451.2: Is Cyberspace Burning?”(American Civil Liberties Union White Paper, March 17, 2002).

47.Not all of these filters function by using blacklists.Two examples of filtering programs that use an algorithmic approach rather than blacklists are PixAlert’s SafeScreen (available at link #87) and LTU Technologies’ ImageSeeker (available at link #88), the latter of which is supposedly being used by the FBI and DHS in child pornography investigations.

48. Paul Resnick,“PICS-Interest@w3.0rg, Moving On,”January 20 1999, available at link #89; Paul Resnick, “Filtering Information on the Internet,” Scientific American 106 (March 1997), also available at link #90; Paul Resnick, “PICS, Censorship, and Intellectual Freedom FAQ,”available at link #91;Paul Resnick and Jim Miller,“PICS: InternetAccess ControlsWith- out Censorship,” Communications of the ACM 39 (1996): 87, also available at link #92; Jim Miller,Paul Resnick,et al.,“PICS 1.1 Rating Services and Rating Systems—and Their Machine- Readable Descriptions,”October 31,1996,available at link #93);Tim Krauskopf,Paul Resnick, et al.,“PICS 1.1 Label Distribution—Label Syntax and Communication Protocols,”October 31, 1996, available at link #94; Christopher Evans, Paul Resnick, et al., “W3C Recommendation: PICS Rules 1.1, REC-PICS, Rules-971229,”December 29, 1997, available at link #95.

49.See JonathanWeinberg,“Rating theNet,”HastingsCommunicationsandEntertainment Law Journal 19 (1997): 453, 478 n.108.

50.This claim,of course, is too strong.The site could block deceptively,making it seem as if the userweregainingaccessbut actually not givingher access towhat shebelieves she isgain- ing access to.

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51.See Richard Thompson Ford (“The Boundaries of Race: Political Geography in Legal Analysis,”HarvardLawReview107 [1994]:1841,1844),who asserts that jurisdictional bound- aries perpetuate racial segregation and inequality; Gerald E. Frug (“Universities and Cities,” Connecticut Law Review 30 [1998]: 1199, 1200), explains how universities erect borders to divorce themselves from surrounding poverty and argues that universities should critique these borders; Lani Guinier (“More Democracy,” University of Chicago Legal Forum 1995 [1995]: 1, 3) advocates a cross-racial participatory democracy that demands a concern for, and a familiarity with, the views of others.

52. See Regents of the University of California v. Bakke, 438 US 265, 312 (1978) (Justice Lewis F. Powell, quoting Keyishian v. Board of Regents, 385 US 589, 603 [1967]:“The Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth‘out of a multitude of tongues,[rather] than through any kind of author- itative selection’”).

53.See Sunstein,Democracyand theProblemofFreeSpeech,xvi–xx; Fiss,The IronyofFree Speech, 3,37–38;Andrew Shapiro’s powerful analysis of Sunstein’s point is better tuned to the realities of the Net; see The Control Revolution, 107–12.

54. Sunstein,Democracy and the Problem of Free Speech, xvi–xx. 55. Ithiel de Sola Pool, Technologies Without Boundaries: On Telecommunications in a

GlobalAge, edited by Eli M. Noam (Cambridge, Mass.: Harvard University Press, 1990), 15. 56.See Geoffrey R.Stone,“Imagining a Free Press,”MichiganLawReview90 (1992):1246,

1264. 57. Dan Hunter argues it is not our choice anyway. See Dan Hunter, “Philippic.com,”

CaliforniaLawReview90 (2002):611.Greg Laughlin is convinced the concerns are overstated. See Gregory K.Laughlin,“Sex,Lies,and Library Cards: The FirstAmendment Implications of the Use of Software Filters to Control Access to Internet Pornography in Public Libraries,” Drake Law Review 51 (2003): 213, 267–68 n.287. For a review of Congress’s latest effort to facilitate filtering,see Susan P.Crawford,Symposium, “Law and the Information Society,Panel V:Responsibility and Liability on the Internet,Shortness ofVision:RegulatoryAmbition in the Digital Age,” Fordham Law Review 74 (2005): 1, 6. (“The next information-flow membrane mandate to pass Congress—again, prompted by legislators’ fixation on indecent (but legal) content online—was the Children’s Internet ProtectionAct (“CIPA”),which required libraries to install filtering software on all their computers capable of accessing the Internet in order to hold on to their federal funding.The goal of this 2000 legislation was to condition provision of such funding on libraries’use of filters that block access to visual depictions that are harmful to minors (when accessed by a minor).On June 23,2003,after another three years of litigation, the Supreme Court upheld CIPA, with two “swing” Justices (Anthony Kennedy and Stephen Breyer) suggesting thatadultswouldbeable toask libraries tounblock legal sites (legal foradult viewing, if harmful to minors) that had been blocked by the installed filters. Even though the tie to the CDA was clear—this was another congressional attempt to eliminate online sexual material using technology that would also inevitably filter out protected speech—the link to federal funding made this case one the Justices could decide differently. Indeed, the federal funding element may have been the crucial difference between CDA and CIPA.One European commentator noted the CIPA opinion as an‘important shift’by anAmerican legal system that had been‘previously critical of government’s attempts to regular Internet access.’”)

58. Compare Jonathan Zdziarski,“Ending Spam: Bayesian Content Filtering and the Art of Statistical Language Classification 31 (2005) and DSPAM, available at link #96.

59. Zdziarski, Ibid., 25. 60. Ibid.,31.But a related point can be made about Bayesian filtering as well, since many

of the tools are themselves open source or free software. DSPAM, for example, is licensed under the GPL.

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61. This is being charitable. Zdziarski is much more critical of “vigilantes who don’t adhere to any form of proper procedure before blacklisting networks.”Ibid., 28.

62. See Arik Hesseldahl, U.S. Congress Makes No Progress on Spam, December 26, 2003, available at link #97. Also Todd Bishop, Software Notebook: Is Gates’ prediction on spam a bust?SeattlePost-Intelligencer (1/23/06).Estimatesof successherediffer dramatically.Microsoft estimates it blocks 95 percent of spam from reaching e-mail inboxes.

63. Jonathan Zdziarski,Ending Spam: Bayesian Content Filtering and theArt of Statistical Language Classification (San Francisco: No Starch Press, 2005) 23.

64.SeeCAN-SPAMActof 2003,PublicLaw108-187(2003).Forareviewof European leg- islation, see D. I. Cojocarasu, Anti-spam Legislation Between Privacy and Commercial Interest: AnOverviewof theEuropeanUnionLegislationRegarding theE-mail Spam (Oslo:University of Oslo, 2006).

In my view, we define spam as “unsolicited bulk commercial e-mail.” Each element is necessary. Unsolicited, meaning there is no agreement to receive such e-mail. If there is an agreement, therequirementswouldberemoved.Bulkmeaning itwouldnotbe intendedtoreg- ulatecirculations to friendsor within small groups.Cf.SoniaArrison,“CanningSpam:An Eco- nomic Solution to Unwanted Email” 9 (Pacific Research Institute, Feb. 2004). Commercial meaning itwouldnot regulate socialorpolitical e-mail.Ande-mail,meaningmaybemore than e-mail—perhaps, for example, including blog spam.

65. In my view,Congress should be permitted to discriminate in favor of political speech, and should thus be permitted to exempt political speech from any“spam”regulation. This is not only because of the special value in this speech, but also, and more importantly, because abuse with political speech is more naturally regulated. If I am trying to win your vote, I’m not likely to annoy you with spam.But if I’m trying to sell youViagra,whether I annoy you or not won’t matter much to me.

66.This was the lawinmanystatesbefore the federalCAN-SPAMAct preemptedthis state law.But as those laws didn’t have the enforcement remedy I propose here, they are not directly relevant to the argument I am making here. See “Subject Line Labeling as a Weapon Against Spam,”A CAN-SPAM Act Report of Congress (FTC June 2005).

Thissolutionis justoneinstanceofageneral formwhichaimstoshift theburdenof revealing informationtothesender.Foramuchmoresophisticatedproposal,seeTheodoreLoder,Marshall Van Alstyne, and Rick Wash (2006) “An Economic Response to Unsolicited Communication”, Advances inEconomicAnalysis andPolicyVol.6,No.1,Article 2,available at link #98.

67. See Spammer-X, Jeffrey Polsuns and Stu Sjouwerman, Inside the Spam Cartel: Trade Secrets from the Dark Side (NewYork: Syngress Publishing, 2004).

68.R.PolkWagner,“On Software Regulation,”SouthernCaliforniaLawReview78 (2005): 457, 516.

69. Lessig,Free Culture:The Nature and Future of Creativity, xiii–xvi. 70. Yochai Benkler, “Net Regulation: Taking Stock and Looking Forward,” University of

Colorado Law Review 71 (2000): 1203, 1249. 71.See,e.g.,UnitedStates v.Dunifer,219 F.3d 1004 (9th Cir.2000).(FCC closure of pirate

radio station Free RadioBerkeley);UnitedStates v.Any&AllRadioStationTransmissionEquip., 2004 U.S.Dist.LEXIS 24899 (D.N.Y.2004);UnitedStates v.Szoka,260 F3d 516 (6th Cir.2001). See 47 CFR 73.277 (1998).

72. 47 USCA 81–119 (1927) (repealed by the Communications Act of 1934). 73. See Red Lion Broadcasting Company v. Federal Communications Commission, 395 US

367, 375–77 (1969); National Broadcasting Company v. United States, 319 US 190, 212–13 (1943).Thomas Hazlett makes a powerful critique of Frankfurter’s history of the emergence of any necessity for FCC regulation; see ThomasW.Hazlett,“Physical Scarcity,Rent Seeking,and the First Amendment,”Columbia Law Review 97 (1997): 905, 933–34.

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74.SeeTurner Broadcasting System,Inc.v FederalCommunicationsCommission,512 US 622, 637–38 (1997); see also Huber, Law and Disorder in Cyberspace.

75. See National Broadcasting Company, Inc. v. Columbia Broadcasting System, 213. 76.SeeRonaldH.Coase,“TheFederalCommunications Commission,”JournalofLawand

Economics 2 (1959): 1. 77.Paul Starr,The Creation of Media: Political Origins of Modern Communications (Basic

Books, 2004), 25–46. 78. Yochai Benkler, “Net Regulation: Taking Stock and Looking Forward,” University of

Colorado Law Review 71 (2000): 1203. 79. See, for example, research at MIT to build viral mesh networks which increase in

capacity as the number of users increases.Collaborative (Viral)Wireless Networks,available at link #99.

80. Ethernet effectively functions like this. Data on an Ethernet network are streamed into each machineon that network.Each machinesniffs the data and then paysattentionto the data intended for it. This process creates an obvious security hole: “sniffers” can be put on “promiscuousmode”andreadpackets intendedforother machines; seeLoshin,TCP/IPClearly Explained, 44–46.

81. See Yochai Benkler and Lawrence Lessig, “Net Gains,” New Republic, December 14, 1998.

82.The founder of this argument must be Eli Noam;see“SpectrumAuctions:Yesterday’s Heresy, Today’s Orthodoxy, Tomorrow’s Anachronism—Taking the Next Step to Open Spec- trumAccess,”JournalofLawandEconomics41 (1998):765.Benkler has spiced it upa bit (in my view, incriticalways)byadding to it thevalueof thecommons.Foranextraordinarilypowerful push to a similar political (if not technological) end, see Eben Moglen,“The Invisible Barbe- cue,” Columbia Law Review 97 (1997): 945. Moglen notes the lack of debate regarding the sociopolitical consequences of carving up telecommunication rights at the “Great Barbecue” and draws a parallel with the GildedAge’s allocation of benefits and privileges associated with the railroad industry.

CHAPTER FOURTEEN

1.Audio Tape: Interview with Philip Rosedale 2 (1/13/06) (transcript on file with author). 2. Ibid., 4–6. 3. Ibid., 5. 4. Castronova,SyntheticWorlds, 207. 5. Ibid., 216. 6. Ibid., 213. 7.See Judith N.Shklar,AmericanCitizenship:TheQuest for Inclusion (Cambridge,Mass.:

Harvard University Press,1991),25–62; JamesA.Gardner,“Liberty,Community,and the Con- stitutional Structure of Political Influence:A Reconsideration of the Right toVote,”University ofPennsylvaniaLawReview145 (1997):893;QuietRevolution in theSouth,edited by Chandler Davidson and Bernard Grofman (Princeton, N.J.: Princeton University Press, 1994): 21–36.

8. See Lani Guinier, The Tyranny of the Majority: Fundamental Fairness in Representative Democracy (NewYork:Free Press,1994);Richard Thompson Ford,“Beyond Borders:A Partial Response to Richard Briffault,”StanfordLawReview48 (1996):1173;Richard Thompson Ford, “Geography and Sovereignty: Jurisdictional Formation and Racial Segregation,”Stanford Law Review 49 (1997): 1365; Jerry Frug,“Decentering Decentralization,”University ofChicagoLaw Review 60 (1993): 253; Jerry Frug,“The Geography of Community,”Stanford Law Review 48 (1996): 1047.

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9. See Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality (New York: Basic Books, 1983).

10. See Charles M. Tiebout, “A Pure Theory of Local Expenditures,” Journal of Political Economy64(1956):416; seealsoClaytonP.Gillette,LocalGovernmentLaw:CasesandMaterials (Boston: Little, Brown, 1994), 382; Vicki Been,“‘Exit’ as a Constraint on Land Use Exactions: Rethinking the Unconstitutional Conditions Doctrine,”Columbia Law Review 91 (1991): 473, 514–28.

11. See David G. Post, “Governing Cyberspace,” Wayne Law Review 43 (1996): 155; David Post,“The New Electronic Federalism,”AmericanLawyer (October 1996): 93; David G. Post, “The ‘Unsettled Paradox’: The Internet, the State, and the Consent of the Governed,” Indiana Journal of Global Legal Studies 5 (1998): 521, 539; David R. Johnson and Kevin A. Marks,“Mapping Electronic Data Communications onto Existing Legal Metaphors: Should We Let Our Conscience (and Our Contracts) Be Our Guide?,” Villanova Law Review 38 (1993): 487; Johnson and Post, “Law and Borders”; David G. Post, “Anarchy, State, and the Internet: An Essay on Law-Making in Cyberspace,” Journal of Online Law (1995): article 3, available at link #100.

12.See Phillip E.Areeda et al.,AntitrustLaw,vol.2A (Boston:Little,Brown,1995),85–87. 13. See Post,“Anarchy, State, and the Internet,”29–30. 14. In the time sinceCodev1, this point has become much more questionable.The ability

of people playing games to effectively move from one game to another has increased. Here again, real space and cyberspace are becoming more alike.

15. F. Gregory Lastowka and Dan Hunter,“The Laws of Virtual Worlds,”California Law Review 92 (2004): 1, 73.

16. Or at least three of the four regions in the early United States shared this history; see Fischer,Albion’s Seed, 827–28.

17. Article V of the Constitution states (obscurely no doubt) that “provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the firstArticle.” These clauses state: “(1) The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten Dollars for each Person”; and “(4) No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.”

18. See John F. Kennedy,Profiles in Courage (NewYork: Harper, 1956), ch. 3.

CHAPTER FIFTEEN

1. The story of the suit is told in Yahoo! Inc. v. La Ligue Contre le Racisme, 433 F.3d 1199 (9th Cir.2006).See also Jack Goldsmith and Timothy Wu,WhoControls the Internet: Illusions of a Borderless World; Michael Geist,“Is There a There There? Towards Greater Certainty for Internet Jurisdiction,”16BerkeleyTechnologyLawJournal1345(2001).Forcriticismof thecon- flict (and its significance) see Marc H. Greenberg,“A Return to Lilliput: The LICRA v.Yahoo! Case and the Regulation of Online Content in the World Market,” Berkeley Technology Law Journal 18 (2003): 1191.

2.Yahoo! Inc. v. La Ligue Contre le Racisme, 433 F.3d 1199, 1202 (9th Cir. 2006). 3. Ibid., 1223. 4. See “France Bans Internet Nazi Auctions,” BBC NEWS, May 23, 2000, available at

link #101.

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5.Yahoo! Inc. v. La Ligue Contre le Racisme, 433 F.3d 1199, 1203 (9th Cir. 2006). 6.Adam D. Thierer,“Web Restrictions Unlikely to Muzzle Neo-Nazi Speech,”Cato Insti-

tute Web Site (Jan 15, 2001) (available at link #102). 7.Available at link #103. John Borland,“BroadcastersWin BattleAgainst iCraveTV.com,”

CNET NEWS, Jan. 28, 2000, available at link #104. 8.MichaelGeist,“IsTherea ThereThere?TowardsGreaterCertainty for Internet Jurisdic-

tion,” BerkeleyTechnology Law Journal 16 (2001): 1345. 9.Yahoo! Inc. v. La Ligue Contre le Racisme, 433 F.3d 1199 (9th Cir. 2006). 10.Reidenberg points out that the translation of the French ruling offered to the District

Court in the United States was flawed. Joel R. Reidenberg,“Technology and Internet Jurisdic- tion,” University of Pennsylvania Law Review 153 (2005): 1951, 1959.

11.Yahoo! Inc. v. La Ligue Contre le Racisme, 433 F.3d 1199, 1203 (9th Cir. 2006). 12. Jack Goldsmith and Timothy Wu, Who Controls the Internet: Illusions of a Borderless

World (2006), 41. 13. There has been a rich, and sometimes unnecessary, debate about whether indeed

cyberspace is a “place.” I continue to believe the term is useful, and I am confirmed at least partlybyDanHunter,“CyberspaceasPlaceandtheTragedyof theDigitalAnti-commons,”Cal- iforniaLawReview91(2003):439.MichaelMadison addsa valuablepointaboutwhat theplace metaphor misses in Michael J. Madison, “Rights of Access and the Shape of the Internet,” Boston College Law Review 44 (2003): 433. Lemley too adds an important perspective. See “Place and Cyberspace,”California Law Review 91 (2003): 521.

14. See Restatement (Third) of Foreign Relations Law (1986), 402(2) and comment (e). 15. Child Sexual Abuse Prevention Act, 18 USC 2423(b) (1994). See Margaret A. Healy,

“Prosecuting Child Sex Tourists at Home:Do Laws in Sweden,Australia,and the United States Safeguard the Rights of Children as Mandated by International Law?,”Fordham International Law Journal 18 (1995): 1852, 1902–12.

16. Castronova,SyntheticWorlds (2005), 7. 17. See Bill Grantham, “America the Menace: France’s Feud With Hollywood,” World

Policy Journal 15, 2 (Summer 1998): 58; Chip Walker, “Can TV Save the Planet?,” American Demographics (May 1996): 42.

18.See, forexample,DavidR.JohnsonandDavidPost,“LawandBorders:TheRiseof Law in Cyberspace,”Stanford Law Review 48 (1996): 1379–80.

19. Jack Goldsmith and Timothy Wu, Who Controls the Internet. See Jack L. Goldsmith, “Against Cyberanarchy,”University ofChicagoLawReview 65 (1998): 1199; Jack L.Goldsmith, “TheInternet andtheAbidingSignificanceof TerritorialSovereignty,”IndianaJournalofGlobal LegalStudies5(1998):475; seealsoDavid Johnston,SunnyHanda,andCharlesMorgan,Cyber- law: What You Need to Know About Doing Business Online (Toronto: Stoddart, 1997), ch. 10. Allan R.Stein (“The Unexceptional Problem of Jurisdiction in Cyberspace,”The International Lawyer 32 [1998]: 1167) argues that the jurisdictional problems in cyberspace are like those found in real-space international law.

20.See Jessica Litman,“The Exclusive Right to Read,”CardozoArtsandEntertainmentLaw Journal 13 (1994): 29.

21. Ibid. 22. See John Perry Barlow, “A Declaration of the Independence of Cyberspace” (1996),

available at link #105. 23. See Communications Decency Act, PL 104-104, 110 Stat. 56 (1996). 24. Yochai Benkler, “Net Regulation: Taking Stock and Looking Forward,” University of

ColoradoLawReview 71 (2000): 1203,1206–07 (15 in 101; 23 in 102; 34 in 103; 66 in 104; 275 in 105; 348 for first session of 106).

25. Ibid., 1203, 1232, 1234, 1237.

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26. Michael Geist, “Cyberlaw 2.0,” Boston College Law Review 44 (2003): 323, 332. For a related point, see Matthew Fagin,“Regulating Speech Across Borders: Technology vs.Values,” MichiganTelecommunicationsTechnology Law Review 9 (2003): 395.

27. Geist, Ibid., 343. 28. Ibid., 338. 29. Ibid., 344–45. 30.Patricia L.Bellia,“Chasing BitsAcross Borders,”University ofChicagoLegalForum35,

100 (2001). 31.Viktor Mayer-Schönberger and Teree E.Foster,ARegulatoryWeb:Free Speechand the

Global Information Infrastructure, 3 Mich. Telecomm. Tech. L. Rev. 45, 45 (1997). 32. I describe this example at the state level,but the regime I’m imagining would work at

the level of nation-states, not U.S. states. 33. See Minnesota Statute 609.75, subd. 2–3, 609.755(1) (1994), making it a misde-

meanor to place a bet unless done pursuant to an exempted, state-regulated activity, such as licensed charitable gambling or the state lottery. Internet gambling organizations are not exempted.

34. See Scott M. Montpas,“Gambling Online: For a Hundred Dollars, I BetYou Govern- ment Regulation Will Not Stop the Newest Form of Gambling,” University of Dayton Law Review 22 (1996): 163.

35. Or at least it could work like this. Depending on the design, it could reveal much more.

36.See 18 USC 1955 (regulating businesses,defining interstate“illegal gambling”as gam- bling that occurs in a state in which it is illegal).

37. As described above, see supra Chapter 5, note 38, within six months, one of the founders of Google was having second thoughts.See Clive Thompson,“Google’s China Prob- lem (And China’s Google Problem),”NewYorkTimes,April 23, 2006, Section 6, p. 64.

38.SeeWikipedia,“List of Words Censored by Search Engines in Mainland China,”avail- able at link #106.

CHAPTER SIXTEEN

1.Missouri v.Holland, 252 US 416, 433 (1920). 2.See, for example, Jack N.Rakove,OriginalMeanings:Politics and Ideas in theMakingof

theConstitution (NewYork:AlfredA.Knopf,1996),289–90; see alsoAkhilReedAmar,“The Bill of Rights as a Constitution”(YaleLawJournal100 [1991]:1131), for another such understand- ing of the Bill of Rights.

3.This is not to deny that some aspects of the equality delineated in the CivilWar amend- ments echoed in our constitutional past.The abolitionists,of course,made great weight of the Declaration of Independence’s claims to equality; see, for example,Trisha Olson,“The Natural Law Foundation of the Privileges or Immunities Clause of the Fourteenth Amendment,” Arkansas Law Review 48 (1995): 347, 364. An amendment can be transformative, however, even if it is simply recalling a part of the past and reestablishing it—as Germany did, for exam- ple, after World War II.

4. See Plessy v. Ferguson, 163 US 537 (1896). 5. See A. Leon Higginbotham Jr.,“Racism in American and South African Courts: Simi-

larities and Differences,”NewYork University Law Review 65 (1990): 479, 495–96. 6.These laws permitted compelled labor to pay a debt; see Bailey v.Alabama, 219 US 219

(1911) (striking peonage laws under the Thirteenth Amendment). 7. Brown v. Board of Education, 347 US 483 (1954).

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8. See, for example, Dennis v. United States, 341 US 494 (1951) (upholding convictions under the Smith Act, which banned certain activities of the Communist Party).

9. See Korematsu v. United States, 323 US 214 (1944). 10. See, for example, John Hart Ely, Democracy and Distrust: A Theory of Judicial Review

(Cambridge, Mass.: Harvard University Press, 1980). 11. I’ve overstated the security of theAmerican judiciary.An incident with District Court

Judge Harold Baer suggests continued insecurity,especially in the context of the war on drugs. Baer releasedacriminaldefendantafter suppressingasearch thathaddiscoveredeightypounds of narcotics;DonVan Natta Jr.,“Judge’s Drug Ruling Likely to Stand,”NewYorkTimes, January 28,1996,27.The decision was then attacked by presidential candidate Robert Dole,who called for Baer’s impeachment; Katharine Q. Seelye, “A Get Tough Message at California’s Death Row,”NewYorkTimes,March 24,1996,29.President Clinton then joined the bandwagon,sug- gesting that he might ask for Baer’s resignation if Baer did not reverse his decision; Alison Mitchell,“Clinton Pressing Judge to Relent,”NewYorkTimes,March 22,1996,1.Baer then did reverse his decision; Don Van Natta Jr., “Under Pressure, Federal Judge Reverses Decision in Drug Case,”NewYorkTimes,April 2,1996,1.Chief Judge Jon Newman,of the Second Circuit Court of Appeals, along with other judges, then criticized Dole’s criticism of Baer, arguing that he went“too far”; DonVan Natta Jr.,“Judges Defend a Colleague fromAttacks,”NewYork Times, March 29, 1996, B1.

12. I describe the Court’s conception of its role in more detail in Lessig,“Translating Fed- eralism.”

13. Robert H. Bork, The Antitrust Paradox: A Policy at War with Itself (New York: Basic Books, 1978), 83.

14.See, for example,Felix Frankfurter,TheCommerceClauseUnderMarshall,Taney,and Waite (Chapel Hill: University of North Carolina Press, 1937), 82.

15. The relationship between a contested ground and a political judgment is more com- plex than this suggests. I discuss it more extensively in Lawrence Lessig, “Fidelity and Con- straint,” Fordham Law Review 65 (1997): 1365.

16. ACLU v. Reno, 929 FSupp 824 (EDPa 1996); Shea v. Reno, 930 FSupp 916 (SDNY 1996).

17. I discuss this in Lessig,“Fidelity and Constraint.” 18. One could well argue that during the crisis of the Depression deference by the Court

to the Congress would have been well advised; see, for example, Sunstein, Democracy and the Problem of Free Speech, 39.

19.For the clearest statement of a contrary position,see Charles Fried,“Book Review:Per- fect Freedom or Perfect Control?,”Harvard Law Review 114 (2000): 606.

20.Fischer (Albion’s Seed) shows how town planning in the United States followed habits in Europe.

21.David P.Currie,TheConstitutionof theFederalRepublic ofGermany (Chicago:Univer- sity of Chicago Press, 1994), 182–87. See also Dawn C. Nunziato, “The Death of the Public Forum in Cyberspace,”BerkeleyTechnology Law Journal 20 (2005): 1115,1170 n.2 (describing first amendment review of anti-dilution law).

22. Charles Fried, “Book Review: Perfect Freedom or Perfect Control?,” Harvard Law Review 114 (2000): 606.

23. Paul Schiff Berman,“Cyberspace and the State Action Debate: The Cultural Value of Applying Constitutional Norms to‘Private’Regulation,”University ofColoradoLawReview 71 (2000): 1263, 1269.

24.A.MichaelFroomkin,“TheCollisionof Trademarks,DomainNames,andDueProcess in Cyberspace,” Communications of the ACM 44 (2001): 91. See also Jonathan Weinberg, “ICANN and the Problem of Legitimacy,”Duke Law Journal 50 (2000): 187.

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25. Internet Corporation for Assigned Names and Numbers, available at link #107. 26.Payne v.Tennessee, 501 U.S. 808, 844 (1991) (Marshall, dissenting). 27. See Wikipedia,“Duke Cunningham,”available at link #108. 28. The average term for a Supreme Court justice is 15 years. See link #109. The average

term for a Senator in the 109th Congress was 12.1 years, and for a member of the House, 9.3 years. See link #109. The figures for campaign spending are derived from link #110.

29.Ernest F.Hollings,“Stop the Money Chase,”WashingtonPost, Page B07,Feb.19,2006, available at link #112.

30.Peter Francia and Paul Herrnson,“The Impact of Public Finance Laws on Fundraising in State Legislative Elections,” 31 American Politics Research 5 (September 2003), confirms Hollings’s numbers.

CHAPTER SEVENTEEN

1.Deborah Hellman, in“The Importance of Appearing Principled”(ArizonaLawReview 37 [1995]: 1107), describes the illegitimacy costs that courts incur when they overrule prece- dents for apparently political reasons.

2. Guido Calabresi, A Common Law for the Age of Statutes (Cambridge, Mass.: Harvard University Press,1982),16–32;Guido Calabresi,“The Supreme Court,1990 Term—Foreword: Antidiscrimination and Constitutional Accountability (What the Bork-Brennan Debate Ignores),”Harvard Law Review 105 (1991): 80, 83, 103–7, 119–20.

3.Or come close to doing so; see RichardA.Posner,TheProblemsof Jurisprudence (Cam- bridge, Mass.: Harvard University Press, 1990), 300–301.

4. I am grateful to Viktor Mayer-Schoenberger for demonstrating this point to me. Hal Abelson pointsout that the componentswould have tobe verifiable if they were not themselves open. Otherwise, components could function as Trojan Horses—pretending to be one thing while in reality being something else.

5.SeeMarkA.LemleyandDavidW.O’Brien,“EncouragingSoftwareReuse,”StanfordLaw Review49 (1997):255.See also,e.g., James Boyle,“A Politics of Intellectual Property:Environ- mentalism for the Net,”available at link #113.

6. For an extraordinary account of the damage done by copyright law to software devel- opment, see Mark Haynes,“Black Holes of Innovation in the SoftwareArts,”BerkeleyTechnol- ogyLawJournal14 (1999):503.See also David McGowan,“Legal Implications of Open Source Software,” Illinois University Law Review 241 (2001).

7. Kennedy, Profiles in Courage, 71. 8. See Nicholas Negroponte,Being Digital (NewYork: Alfred A. Knopf, 1995), 18, 238. 9.Center for Responsive Politics,“’04 Elections Expected to Cost Nearly $4 Billion,”Octo-

ber 21, 2004, available at link #114. 10. Chris Edwards, “Bush’s Overspending Problem,” CATO Institute, February 6, 2003,

available at link #115. 11. See, for example, James S. Fishkin, The Voice of the People (New Haven, Conn.: Yale

University Press,1995).For excellent work exploring how cyberspace might advance this gen- eral project, see Beth Simone Noveck,“Designing Deliberative Democracy in Cyberspace:The Role of the Cyber-Lawyer,”BostonUniversity Journalof ScienceandTechnologyLaw9 (2003):1.

12. Dean Henry H. Perritt Jr. provides a well-developed picture of what“self-regulation” in the Internet context might be,drawing on important ideals of democracy; see“Cyberspace Self-government:Town Hall Democracy or Rediscovered Royalism?,”BerkeleyTechnologyLaw Journal 12 (1997): 413. As he describes it, the possibility of self-governance depends impor- tantly on architectural features of the Net—not all of which are developing in ways that will

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support democracy; see also Shapiro (TheControlRevolution,150–57,217–30),who discusses “push-button politics”and tools of democracy.

13. Tocqueville,Democracy inAmerica, vol. 1, 284–85.

CHAPTER EIGHTEEN

1. Posting of Declan McCullagh,“Reporters Without Borders calls for regulation of U.S. Internet companies,”available at link #116.

2. Ronald Coase,“The Problem of Social Cost,” Journal of Law and Economics (October 1960).

3.“Study: Spam Costs Businesses $13 Billion,” CNN.COM, January 5, 2003, available at link #117.

4.Felix Oberholzer and Koleman Strumpf,“The Effect of File Sharing on Record Sales:An Empirical Analysis”3 (Working Paper 2004).

5.David Blackburn,“On-line Piracy and Recorded Music Sales”(Harvard University, Job Market Paper, 2004.

6. Recording Industry Association of America Home Page,“Issues—Anti-Piracy: Old as the Barbary Coast, New as the Internet,”available at link #118.

7.David Blackburn,“On-line Piracy and Recorded Music Sales”(Harvard University, Job Market Paper, 2004), available at link #119.

8. Family Entertainment and Copyright Act of 2005 (P.L. 109–9), signed April 27, 2005. (Adds § 2319B to Title 17,which makes it a crime punishable with imprisonment to copy in a movie theater, without authorization, motion pictures or any audiovisual work protected under Title 17.); Intellectual Property Protection and Courts Amendment Act of 2004 (P.L. 108–482), signed December 23, 2004. (Amends the Trademark Act of 1946 to provide for increased criminal and civil penalties for individuals who willfully submit false information to a domain name registration authority in connection with an Internet address used to commit a crime or engage in online copyright or trademark infringement.); Satellite Home Viewer Extension and Reauthorization Act of 2004 (contained in Consolidated Appropriations Act, 2005,P.L.108–447), signed December 8,2004. (In addition to extending for an additional five years the statutory license for satellite carriers retransmitting over-the-air television broadcast stations to their subscribers and making a number of amendments to the existing section 119 of the CopyrightAct,SHVERA directs the Copyright Office to conduct two studies and report its findings to the Committee on the Judiciary of the House of Representatives and the Com- mittee on the Judiciary of the Senate. One study, due by December 31, 2005, required the Office to examine select portions of the section 119 license and to determine what, if any, impact sections 119 and 122 have had on copyright owners whose programming is transmitted by satellite carriers.); Individuals with Disabilities Education Improvement Act of 2004 (P.L. 108–446), signed December 3, 2004. (Modifies § 121 of Title 17, providing for the establish- ment of the National Instructional Materials Accessibility Center (“NIMAS”) and the free accessibility of certain materials—such as Braille,audio or digital text for use by the blind—via NIMAS.); Copyright Royalty and Distribution Reform Act of 2004 (P.L. 108–419), signed November 30, 2004. (Amends the Copyright Act to replace the Copyright Office copyright arbitration royalty panel system,created under the Copyright Royalty Tribunal ReformAct of 1993,with three copyright royalty judges to oversee adjustment of compulsory license royalty rates and distribution of copyright royalties.); Small Webcaster Settlement Act of 2002 (P.L. 107–321), enacted December 4, 2002. (Amends the Copyright Act to establish performance royalty rights for sound recordings transmitted through electronic digital technology.); Tech- nology, Education,and Copyright HarmonizationAct of 2002 (P.L.107–273,Subtitle C of the

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21st Century Department of JusticeAppropriationsAuthorizationAct), enacted November 2, 2002. (Introduces provisions relating to the use of copyrighted works for distance education purposes.); Intellectual Property and High Technology Technical Amendments Act of 2002 (P.L. 107–273, Subtitle B of the 21st Century Department of Justice Appropriations Authori- zation Act), enacted November 2, 2002. (Makes technical corrections to Title 17 and to the IP and Communications Omnibus ReformAct of 1999,also known as the Satellite HomeViewer ImprovementAct of 1999.);Work Made for Hire and Copyright CorrectionsAct of 2000 (P.L. 106–379), enacted October 27, 2000. (Amends definition of works made for his in Title 17.); Digital Theft Deterrence and Copyright Damages Improvement Act of 1999 (P.L. 106–160), enactedDecember 9,1999.(Increases statutory damages for copyright infringement by amend- ing chapter 5 of Title 17.); Satellite Home Viewer Improvement Act of 1999 (P.L. 106–113), enactedNovember29,1999.(Amendschapters12and13of Title17.);CopyrightAmendments and Amendments to the Vessel Hull Design Protection Act (P.L. 106–44), enacted August 5, 1999. (Makes technical corrections to Title 17.); Vessel Hull Design Protection Act (P.L. 105–304,TitleV of the Digital Millennium Copyright Act), enacted October 28,1998. (Intro- duces design protection for vessel hulls.);Computer Maintenance CompetitionAssuranceAct (P.L. 105–304, Title III of the Digital Millennium Copyright Act), enacted October 28, 1998. (Amends § 117 of Title 17.); Online Copyright Infringement Liability Limitation Act (P.L. 105–304,Title III of the Digital Millennium Copyright Act), enacted October 28,1998. (Adds § 512 to Title 17.); WIPO Copyright and Performances and Phonograms Treaties Implemen- tation Act of 1998 (P.L. 105–304, Title I of the Digital Millennium Copyright Act), enacted October 28, 1998). (Adds a new chapter 12 to Title 17, which prohibits circumvention of CR protection systems and provides protection for CR management information.);Digital Millen- nium CopyrightAct (P.L.105–304),enacted October 28,1998;Fairness in Music LicensingAct of 1998 (P.L.105–298), enacted October 27,1998. (Amending § 110 and adding § 513 to pro- vide a music licensing exemption for food service and drinking establishments.); Sonny Bono Copyright Term ExtensionAct (P.L.105–298,Title I),enacted October 27,1998.(Extends term of copyright protection for most works to life plus 70 years.); No Electronic Theft (NET) Act (P.L. 105–147), enacted December 16, 1997; Copyright Amendments and Amendments to Semiconductor Chip Protection act of 1984 (P.L.105–80),enacted November 13,1997.(Intro- duces technical amendments to certain provisions of Title 17.); Legislative Branch Appropri- ations Act (P.L. 104–197), enacted September 16, 1996. (Adds a new version of § 121 concerning the limitation on exclusive copyrights for literary works in specialized format for the blind and disabled.);Anticounterfeiting Consumer Protection Act of 1996 (P.L.104–153), enacted July 2, 1996. (Amends § 603 of Title 17 and § 2318 of Title 18.); Digital Performance Right in Sound RecordingsAct of 1995 (104–39),enacted November 1,1995.(Amends §§ 114 and 115 of Title 17.).

APPENDIX

1. Lessig,“The New Chicago School,”661. 2. See H. L. A. Hart, The Concept of Law, 2d ed. (New York: Oxford University Press,

1994), 6–13, 27–33. 3.For example, Illinois law states:“The third Monday in January of each year is a holiday

to be observed throughout the State and to be known as the birthday of Dr. Martin Luther King,Jr.Within10daysbefore thebirthdayof Dr.MartinLutherKing,Jr., ineachyear theGov- ernor shall issueaproclamationannouncing theholidayanddesignating theofficial events that shall be held in honor of the memory of Dr. Martin Luther King, Jr., and his contributions to this nation”; 5 Illinois Comprehensive Statutes Annotated 490/65 (West 1998).

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4.See Robert Cooter,“Expressive Law and Economics,”Journal of LegalStudies27 (1998): 585.

5.Cf.PaulN.Bracken,TheCommandandControl ofNuclearForces (NewHaven:YaleUni- versity Press,1983),179–237;Christopher Chant and Ian Hogg,TheNuclearWarFile (London: Ebury Press, 1983), 68–115.

6.On the other side, the military built into the system technological brakes on the ability to launch,to ensure that no decision to launch was ever too easy; see also DanielFord,TheBut- ton:The NuclearTrigger—Does ItWork? (London: Allen and Unwin, 1985), 118–21.

7.“The phenomena of social meaning and incommensurability constrain rational choice (individualandcollective).Generalizing, it is irrational to treat goodsas commensurablewhere the use of a quantitative metric effaces some dimension of meaning essential to one’s purposes or goals. It would be irrational, for example, for a person who wanted to be a good colleague within an academic community to offer another scholar cash instead of comments on her manuscript. Against the background of social norms, the comment’s signification of respect cannot be reproduced by any amount of money; even to attempt the substitution conveys that the person does not value his colleague in the way appropriate to their relationship”; Dan M. Kahan,“Punishment Incommensurability,”Buffalo Criminal Law Review 1 (1998): 691, 695.

8. Many scholars, Robert Cooter most prominently among them, argue that norms are special because they are“internalized” in a sense that other constraints are not; see Robert D. Cooter,“Decentralized Law for a Complex Economy:The StructuralApproach toAdjudicating the New Law Merchant,”UniversityofPennsylvaniaLawReview144 (1996):1643,1662;Robert D.Cooter,“TheTheoryof MarketModernizationof Law,”InternationalReviewofLawandEco- nomics 16 (1996): 141, 153. By internalization, Cooter is just describing the same sort of sub- jectivity that happens with the child and fire: the constraint moves from being an objectively ex post constraint to a subjectively ex ante constraint.The norm becomes a part of the person, such that the person feels its resistance before he acts, and hence its resistance controls his action before he acts. Once internalized, norms no longer need to be enforced to have force; their force has moved inside,as it were,and continues within this subjective perspective. In my view, we should see each constraint functioning in the same way: We subjectively come to account for the constraint through a process of internalization.Some internalization incentives may be stronger than others, of course. But that is just a difference.

9.Cf.Dan M.Kahan,“Ignorance of Law Is an Excuse—But Only for theVirtuous,”Michi- gan Law Review 96 (1997): 127.

10. See, for example, Schuster et al., Preserving the Built Heritage; Peter Katz, The New Urbanism:TowardanArchitecture of Community (NewYork: McGraw-Hill, 1994); Duany and Plater-Zyberk,Towns andTown-Making Principles.

11. Michael Sorkin, Local Code: The Constitution of a City at 42N Latitude (New York: Princeton Architectural Press, 1993), 11, 127.

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Abortion regulation, 131–132, 133–134 Abrams, Floyd, 237–238, 239, 240, 241, 242 Ackerman, Bruce, 78 ACLU, 255 Active Server Pages (ASP), 148 Adobe’s eBook system, 117 Airline baggage handling example, 128 Alien and Sedition Acts (1798), 213 Alt.sex.stories, 17, 18, 19 Ambiguities (latent): choices and, 25–26,

27, 155, 165, 166–167, 188–190, 195–196, 214, 269–270; codifying constitution and, 315–317; copyright, 195–196, 269–270; description/overview, 25–26, 155–156, 166, 371n28; filtering/free speech, 259, 260; interstate commerce authority, 189, 376n49; possible solution/response to, 326–327; privacy, 25–26, 157–158, 160–165, 214; translation of Constitution, 160, 161–168, 371n15,18, 22; See also Free speech; Intellectual property rights/protection; Privacy; specific technologies

AmericaBlog, 215 American Lawyer Media, L.P., 94 Americans with Disabilities Act (ADA),

127 America Online.See AOL Anime Music Videos (AMVs), 195 Anonymity: choice on, 197–198; code and,

33–34; effects on community/class at Yale, 102–106; escaping constraints and, 18, 19; imperfection effects on, 190–192, 196; post office use and, 37, 44; in reading, 191–192; in real space vs. cyberspace (summary), 45;

technologies to“anonymize,”46, 56–57; See also Identity; Privacy

AOL: charges and, 360n19; community and, 88; comparison with other cyber- places, 96–97, 102, 113; non-code modalities for controlling behavior, 93, 94; rules/code effects, 88–92, 93–94, 359n17; statistics on, 88

Apple’s iTunes, 116 Application layer (Internet), 144–145 Architecture: definition/description,

341–343, 344–345; generations of (cyberspace/Internet), 7; regulation examples using, 127–129; as regulator, 122, 123, 124–125, 127–129, 341–342, 344–345; See also Code; Modalities of regulation; Regulation by code

Articles of Confederation, 4 ATM cards and identity, 35, 41–42 Audio Home Recording Act (1992), 115,

177 Authentication, 40, 41, 42–46, 43 {TXB3} Baker, Jake, 16–19, 20, 26, 236, 299, 349n10 Baker, Stewart, 53 Barlow, John Perry, xiv–xv, 3, 152, 302–304,

305, 373n11 Bendor, Jonathan, 245 Benkler,Yochai, 275 Benloliel, Daniel, 186 Berman, Paul, 319 Berners-Lee, Tim, 146 Bill of Rights, 7, 314 Biometric technology, 42, 73–74, 207–208 Blackburn, David, 337 Blogs/bloggers, 85, 242–243, 244 Board of Education,Brown v., 314 Boyle, James, 3, 22, 181, 198

399

I N D E X

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Brandeis, Louis, 157, 161–162, 163, 201, 214 Breyer, Stephen, 171 Brin, David, 79, 218, 219 “Broadcast flag,”117–118, 362n67 Broadcasting spectrum regulation, 270–275 Brown v.Board of Education, 314 Bush v.Gore, 141 {TXB3} Cailliau, Robert, 146 Calabresi, Guido, 326 CALEA (Communications Assistance for

Law Enforcement Act/1994), 63–64, 354n6, 355n7

Cameron, Kim, 51, 52 Camp, Jean, 323–324 CAN SPAM Act, 264, 266, 337 Carnivore project, 140–141 Cars: congestion control in London, 62,

207; license plates’ importance, 42–43; radio theft example, 125–126; safety and architecture, 128

Case, Steve, 90 Castronova, Edward, 12, 108, 139, 285, 300 Catalfo, Phil, 84 Cates, Richard, 333 CC.See Counsel Connect CDA (Communications Decency

Act/1996), 249–250, 252, 253, 255, 304, 316

Cellular phone calls data, 64–65, 215–216, 355n12

CERT’s (Computer Emergency Readiness Team) malware incidents graph, 75, 76

Chicago Sun-Times, 215 Chicago Tribune, 239 Chicago World’s Fair (1933), 129 Child Online Protection Act (COPA/1998),

250, 252, 253 Child pornography: online, 19, 20, 26–27;

prohibition of, 245, 385n32 Children’s Internet Protection Act

(CIPA/2000), 387n57 China’s regulation of Internet, 79–80, 309 Choices and regulation

(cyberspace/Internet); problems with code, 313, 323–324; problems with courts, 8, 313–319; problems with legislators, 8, 311–312, 313, 319–323; as unprepared to make, 8, 277, 311–312, 313

CIPA (Children’s Internet Protection Act/2000), 387n57

Cisco and cryptography, 71–72 Citizenship: in U.S., 285–286, 291–292,

329–330; of the world, 292, 330 Citizen-sovereign model, 287–290, 289 Civil rights in American South, 365n37 Clark, David, 44, 111 Clark, Wesley, 215–216 Clinton administration and cryptology

regulation, 66 Clipper chip, 66, 367n63 Cloning fraud, 244 Closed code: Carnivore project and,

140–141; commercial software/history and, 146, 369n19; description, 139, 140–141; regulability of, 149–150, 151, 327, 328; voting machines example, 141–143; See also specific projects

Closed networks, 35 Coase, Ronald, 271, 336 Code: definition/description, 6, 88, 121,

145; history of, 145–149; as law, 5, 77–79, 113; modular code, 328–329; resistance to, 118–119; types of, 139, 145–149; values and, 5, 6, 7, 77–78, 114, 277, 292–293; See also Closed code; Open code; Regulation by code

Code of Fair Information Practices, 227–228

Codifying constitution, 313–314, 315 Cohen, Julie, 191–192, 197 Cohen Theorem, 191–192, 197 Commerce: data gathering by, 48, 52;

France/Nazi paraphernalia, 57, 294–295, 297; fraud as cost, 42, 52; geographic identity and, 57–59; identity/authentication and, 42, 48, 52, 57–59, 71–72, 77; labor movement/liberty and, 121; legal effects on, 127; as regulator, xiii, xiv, 61, 79–80, 122, 123, 124, 138, 341, 342; in Tom Maddox story, xii; See also Modalities of regulation

Communications Assistance for Law Enforcement Act (CALEA/1994), 63–64, 355n6, 7

Communications Decency Act (CDA/1996), 249–250, 252, 253, 255, 304, 316

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Communism: transition to democracy, 1–2; Vietnam and, 281–282

Communities: changing in cyberspace/real space, 290; cyberspace (overview), 84–85;“dialogic communities,”103; “Law of Cyberspace, The”class atYale, 102–106; maturing of (cyberspace), 290–291, 292–293; See also Norms; specific cyberspace places

CompuServe, 39 Computer Emergency Readiness Team

(CERT) malware incidents graph, 75, 76

“Computers, Freedom, and Privacy” (CEP/1996) conference, xii

Constitution (U.S.); cyberspace constitution/values and, 275, 277; description, 6–7, 314; intellectual property, 183–184, 186–187; as transformative/codifying, 314; See also Ambiguities (latent); Bill of Rights; specific amendments

“Constitution in Cyberspace, The”(Tribe), 165–166

Constitutional interpretation:“as complete” view, 166, 167, 214; one-step originalism/fidelity, 160, 161, 162; translation and, 156, 160, 161–168, 371n15, 18, 22; values and, 163, 165, 167–168; See alsoAmbiguities (latent)

Constitutions: as architecture, 4; types of, 313–314, 315

Content monitoring, 54–57 Contract and property, 180, 383n50 “Cookies,”47, 48–49, 203 COPA (Child Online Protection Act/1998),

250, 252, 253 Copyright: amateur culture and, 193,

195–196, 268–270; choices on, 188–190, 198–199;“commons”and, 198–199; contracts and, 187–188; description (overview), 171–173, 185–186, 187, 188–190, 192; fair use and, 184–185, 186, 187, 188–190, 196, 376n52;“first sale”doctrine, 177, 179, 185, 187, 375n35; government’s focus on, 337, 395n8; iCraveTV example, 295–296, 297; individuals vs. authors collectively, 185, 301; limits with, 183–184, 186–187; as“more protected”in cyberspace, 175–176,

185–186, 200; piracy, economic costs of, 337; trusted systems and, 177–180, 186, 188, 190; See also Digital technologies; Intellectual property

Counsel Connect: comparison with other cyber-places, 96–97, 102, 113; control by non-code modalities, 96–97; description, 94–95, 96, 97; history of, 94, 360n26; use of real name/effects, 95, 96

Courts: placement of (Europe), 128; politics and, 313, 314, 315–317;“state action,”scope of, 313, 317–319; values and, 8, 316, 326–327; See also specific legal cases

Courts and regulation (cyberspace/Internet): possible solutions, 325–327; problems with, 8, 313–319

Craig, Bill, 295–296 Craig,Maryland v., 166 Crawford, Susan, 63–64, 112, 118 Creative Commons license, 110–111 Creative Commons nonprofit, x, 110, 199 Credit/debit cards: data from use, 22; fraud

with, 58–59, 69 Crime (real space); identity/authentication

and, 41–42, 42–43; reduction through architecture, 126, 128, 135

“Crime Prevention Through Environmental Design,”128

Crump, Catherine, 109 Cryptography: businesses and, 71–72;

confidentiality and, 53, 66; government regulation and, 66–67, 71–72, 357n30; identification and, 53, 54, 66; key systems of, 43, 53–54, 353n15; non-confidentiality features of, 353n13; opposing features of, 53, 54; TCP/IP and, 368n13

Cultural imperialism, 300 Culture (amateur); copyright law and, 193,

195–196, 268–270; description/increase in, 193–196, 376n60

Cyberspace:“as not regulable”view, ix, xii, 3, 27, 29, 31–32, 73; citizen-sovereign model in, 287, 288–290; community and (overview), 84–85; computer speed/bandwidth effects, 107; description, 9, 20, 84–86, 107;

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etymology of, 3; generations of, xiv–xv, 7;“ideal”of, xiv, 2–3, 7, 302–305; Internet vs., 9, 83–85, 283–284; leaving/moving in, 113, 288–290; merchant-sovereign model in, 287, 288–290; regulation modalities in, 113–114, 124–125; rule-sets in, 288–289, 290; science-fiction writers on“future”of, xii–xiv; See also Internet; specific places

Cypherpunks, 383n3 {TXB3} Danger Mouse, 194–195 DAT (Digital Audio Technology), 115,

176–177 Data collection, digital: advertising and,

216, 217, 219, 223; on computer use/logs, 65; examples of, 22, 65, 215–216; privacy and, 23, 218–219, 223; profiling/inequalities with, 219, 220–222; pros/cons of, 217–218; solution for, 225–230; See also Surveillance, digital

Data link layer (Internet), 144–145 “David Lynch effect,”106 Debit cards.See Credit/debit cards DeCSS, 117 Democracy: cyberspace and, 139, 285;

polling and, 331–333; possible solutions for, 329–334; post- communist Europe, 1–2, 3, 4, 8; in real space vs. cyberspace, 139, 285

Derivative right, 229 “Dialogic communities,”103 Dibbell, Julian, 98, 100, 107 Diebold voting machines, 142 Diffie,Whitfield, 53–54 Diffie-Hellman key system, 53–54 Digital Audio Technology (DAT), 115,

176–177 Digital Millennium Copyright Act

(DMCA/1998), 117, 174–175, 186, 305, 373n10

“Digital rights management”(DRM) technology, 116, 117

Digital technologies: amateur culture and, 194–195; analog technologies vs., 114, 192–193, 268–269;“broadcast flag” and, 117–118, 362n67; Internet copy distribution, 116, 173, 176; perfect copies with, 114–115, 173, 176; piracy

risk/Congress response, 115, 174–175; See also Copyright; Data collection, digital

Disabled: anti-discrimination regulations, 127, 131, 233–234; architecture changes and, 127; real life vs. Internet, 86–88, 359n8

DNA technology, 207–208 Doctrine of a second look, 326 Doctrines of immunity, 290 Domain name system, 306, 321 DRM (“digital rights management”)

technology, 116, 117 Drug use regulation, 131–132, 366n48 DSL (broadband Internet access), 54 Durham, Ivor, 101 DuVal, Richard, 18 DVD-Copy Control Association, 117 Dyson, Esther, xivxv {TXB3} “East Coast Code”/”West Coast Code,”

72–74, 324, 357n34 Easterbrook, Frank, 187 Education, 129 Electronic Frontier Foundation, 117, 302 Elevator architecture, 128 Ellsberg, Daniel, 238 Encryption.See Cryptography Encyclopedia Britannica, 243 End-to-end principle, 44–45, 111–112 Ethernet, 389n80 EverQuest GDP, 108 {TXB3} Face recognition technology, 207 Fair use and copyright, 184–185, 186, 187,

188–190, 196, 376n52 FBI, 64–65 FCC:“broadcast flag”and, 117–118;

broadcasting spectrum regulation, 270, 271; government/IP designs, 63–65

Federal Communications Commission.See FCC

Federal Trade Commission (FTC), 266, 305 Federated SSOs, 50 Fifth Amendment, 213 Filtering, 254–255, 256, 258–260, 386n47,

387n57

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Fingerprints/thumbprints, 42 Finkelstein, Seth, 245 Firefox, 147 First Amendment: copyright and,

186–187; effects of, 18, 20, 115, 116, 121, 186–187, 214, 294, 386n45; “Madisonian”conception of, 260; times when ignored, 315

Fishkin, James, 332 Ford, Richard, 286 Fourteenth Amendment, 167, 286 Fourth Amendment: as constraint on

regulation, 213, 214; dignity/searches and, 211–213, 214; historical background of, 21, 22, 158–160; latent ambiguities and, 157–158, 160–165; search/burden and, 22–23; searches (“invisible”) of computers, 21–22, 23; text of, 158; warrants and, 21, 22, 158, 159–160, 370n8; See also specific court cases

Frankfurter, Felix, 271 Free Culture (Lessig), 110 “Free software,”56, 139 Free Software Foundation’s General Public

License (GPL), 148 “Free software movement,”199 Free speech: architectural significance,

236, 237, 383n3, 4; country differences in, 235–236, 294; credibility and, 241–242;“indecency” and, 250; protection/regulation modalities and, 233, 234, 234–236, 275; values and, 255, 258, 260, 261, 267–268; See also Speech constraints; Speech regulation

French Revolution and Paris architecture, 127

Friedman, Milton, 235 FTC (Federal Trade Commission), 266,

305 FTP (file transfer protocol), 144, 145 Future of Ideas,The (Lessig), 111 {TXB3} Gambling on Internet, 15–16, 23, 69,

307–308 Gandy, Oscar, 219 GDPs of virtual worlds, 108 Geist, Michael, 62, 305 General Public License (GPL), 148 Generative Internet (Zittrain), 74–76

Geographic identity, 57–59 Geography as architectural constraints,

127–128 George II/III, Kings, 21 Georgetown University Law Review, 249 Geoselect IP mapping service, 58 Gibson,William, 3 Ginsberg (“harmful to minors”) speech,

250, 257, 258 Ginsberg v.NewYork, 247, 251 GNU/Linux, 147–148, 369n20, 22 GNU project, 147 Godwin, Mike, 84 Goldsmith, Jack, 58, 298, 301 Gomez, Jean-Jacques, 295, 297 Goodale, James, 237–238 Google: advertising method, 205; China

and, 80, 309; Gmail records, 204, 205–206; government demand for data, 47, 204–205;“neutral”search principle of, 70–80; privacy policy of, 226

Gore,Al, 244–245 Gore,Bush v., 141 Government/regulation: digital IDs and,

68–72;“East Coast Code”/“West Coast Code,”72–74, 324, 357n34; examples, 62–67; exploiting commerce, xiii, xiv, 72–73, 77, 80, 81; in China, 79–80; intervention conditions, 338; in VernonVinge story, xii; overview, 61–62; See also Sovereignty

Government/regulation (indirect); choosing indirect/direct methods, 132, 366n53, 54; democracy and, 138; overview, 67–68; problems with, 132–137, 138; responsibility misdirection with, 133–134; segregation example, 134–135; violence on television, 115–116; White Paper on intellectual property, 173–174

“Grand Theft Auto,”19, 107 Grokster/Grokster, 147 Guinier, Lani, 286 Gyges, 59 {TXB3} Hacker meaning, 8 Hafner, Katie, 101 Hansen, Chuck, 240 Harter, Peter, 150

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Harvard Law Review, 74 Harvard University, 34, 35, 36, 49 H-bomb designs, 240 Health, Chip, 245 Hellman, Martin, 53–54 Helms, Shawn, 54 Herz, J.C., 33 HEW Advisory Committee on Automated

Data Systems, 227 Hodgson v.Minnesota, 132 Holmes, Justice, 5–6 Hoover, Herbert, 270–271 Hostip.info and“geolocation,”59 Houri, Cyril, 58 HTML (hyper text markup language), 47,

145, 146, 369n17 HTTP (hyper text transfer protocol), 144,

145 Hunt, Craig, 144 Hunter, Dan, 193 Hurst, Paul, 53 Hustler, 19 {TXB3} IBEX at Yale class, 102, 104–106 IBM and cryptography, 71 ICANN (Internet Corporation for

Assigned Names and Numbers), 306, 321

iCraveTV, 295–296, 297 Identity: architectures and, 45–54, 50, 51;

authentication and, 40, 41, 42–46, 43; credentials and, 40–41, 42; definition/description, 39–40; digital IDs, 68–72; fraud/risk with, 41–42, 50, 51, 52, 58–59, 69; geographic identity, 57–59; identity cards, 68, 356n24; SSO technology, 49–50; See also“Cookies”; Cryptography; Identity layer

Identity layer: benefits/costs of, 52–53; credential use with, 50–51; description, 50–53; identity theft and, 51, 52; privacy/data collection, 226–227; sovereignty competition and, 306, 307; wallet (real-space) comparison, 50–51

Identity Metasystem, 50 Identity theft, 41–42, 50, 51, 52, 58–59, 69;

states with legislation on, 352n10 IDs, digital, 68–72 Independence Day, 77 Industry Standard article/letter, 136

Intellectual property rights/protection: Constitution and, 183–184, 186–187; control and, 183–185, 196–197; copyright/patent/trademark and, 372n6; as different from real/personal property, 181–183; incentives for creators and, 183–185, 374n33; real world vs. cyberspace (summary), 175; White Paper by Commerce Department, 174, 175; See also Copyright; Creative Commons license; specific types

Internet:“as not regulable”view, ix, xii, 3, 27, 29, 31–32, 73; beginnings of, 2, 33, 86; control/access, 35–37; cyberspace vs., 9, 83–85, 283–284; description/features, 74–76, 83, 111–112; generations of, xiv–xv, 7; “ideal”of, xiv, 2–3, 7, 302–305; layers of, 143–145, 368n10, 12, 13; monitoring use, 55, 56, 205–206, 380n6; See also Cyberspace

Internet Corporation for Assigned Names and Numbers (ICANN), 306, 321

Internet Engineering Task Force (IETF), 71, 145

Internet Protocol addresses, 43, 46–47, 58 Internet Protocol mapping services, 58–59 Internet Service Providers.See ISPs Interstate commerce authority, 189,

376n49 Intranet, 352n9 Ipanema Technologies/Ipanema Systems,

55 IProtectYou, 55–56 IPv6, 53 ISPs, 46–47, 68; See also specific ISPs {TXB3} Jackson,Andrew, 180 Jefferson, Thomas, 182, 198, 348n12 Johnson, David, 31, 94, 95, 288, 300–301 Johnson, Steven, xv, 220 {TXB3} Kapor, Mitch, 24 Katsh, Ethan, 125 Katyal, Neal, 128 Katz v. United States, 163–164 Kennedy, John F., 329 Kerberos, 49 Kraemer, Shelley v., 134 Kundera, Milan, 301

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Laffer Curve for criminal law, 131 LambdaMOO: democracy and, 99–102;

description of, 97, 102, 113; sexual violence/community reaction, 98–102, 360n35

Lapin, Todd, xiv Lastowska, Greg, 193 Law.cyber, 102–106, 113 “Law of Cyberspace, The”class atYale,

102–106 Laws: costs from,123; definition/description

of,11,340; other constraints and (overview), 123, 123,126–127; as regulator,5,122,123,124,125–127, 340,342,344,345;Seealso Modalities of regulation; specific legislation

Legislators: collective values and, 320, 322; fundraising solution, 331; problems with (overview), 8, 311–312, 313, 319–323, 330–331

Lemley, Mark, 328–329 Levine, Lawrence, 194 Lewis, Peter, 218 Lexis, 94 Liability rule, 229 Libertarianism, 2, 3, 120, 335–336, 337, 338,

362n1 Liberty, 120–121 Linux, 147–148, 369n20, 22 Litman, Jessica, 192, 301 Local Code:The Constitution of a City at

42N Latitude (Sorkin), 345 Lott, Eric, 194 Low Level Radioactive Waste Policy

Amendments Act (1985), 132–133 Lyon, Matthew, 101 {TXB3} Maddox, Tom, xii, xiii, xiv Maher v.Roe, 132 Malware, 55, 74–77, 75; See also specific

types/examples Markets.See Commerce Markey, Ed, 65 Marshall, Thurgood, 129, 322 Maryland v.Craig, 166 Massively multiple online games.See

MMOGs; MMORPGs MaxMind IP mapping service, 58–59 McCain, John, 266 McCullagh, Declan, 245, 335–336, 338 McGeveran,William, 230

Meares, Tracey, 131 Merchant-sovereign model, 287–290 Merkle, Ralph, 176 Microsoft; China and, 79; closed

code/Windows 95, 146; GNU/Linux and, 147; identity layer and, 50, 51, 52; Internet Explorer, 147; Passport system, 49–50

Mill, John Stuart, 120 Minnesota,Hodgson v., 132 MIT, 72 Mitchell, John, 238, 239 Mitchell,William, 79, 125 MMOGs: borders story (poisonous

flowers), 10–11, 13–15; code and, 14–15; definition/description, 9, 11–12, 13, 107–108; exit costs, 289–290; statistics on use, 12, 107; See also specific MMOGs

MMORPGs: definition/description, 9, 12, 107–108; statistics on use, 12, 107; See also specific MMORPGs

Mnookin, Jennifer, 102 Modalities of regulation: differences

between, 343–345; importance of understanding, 345; objective/subjective perspectives of, 343–344, 397n7, 8; overview, 122–125, 123, 234–235, 234, 340–345; trade-offs and, 364n23; See alsoArchitecture; Commerce; Laws; Norms

Modular code, 328–329 Moglen, Eben, 236 Monitoring content, 54–57 MOOs, 12–13, 113, 348n6; See also specific

MOOs Morland, Howard, 240 Moses, Robert, 128 Mozilla technology, 147, 150, 253 MSN, 47, 204 MUDs, 12–13, 97, 348n6; See also specific

MUDs {TXB3} Nader, Ralph, 128 Napoleon, Louis III, 127 Napster, 173 National Football League, 296 National Science Foundation, 321 National Security Agency (NSA), 206,

380n13 Near v.Minnesota, 239

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Negroponte, Nicholas, 330 Net95, 35, 36, 72 Netscape, 71, 147, 150 Network layer (Internet), 144–145 Network monitoring, 56 Network news transfer protocol (NNTP),17 Network Solutions, 321 Neuromancer (Gibson), 3 “New Chicago School, the,”340, 363n6 “Newsgroups,”17–18 Newspapers, 271 NewYorker, 35 NewYorkTimes, 19, 218, 237–238, 239, 240 NewYork v.United States, 133, 134, 135 911 call location information, 65 1984 (Orwell), xiv, 204, 208 Nixon, Richard, 333 Nmap software, 56 NNTP (network news transfer protocol), 17 Norms: changing of, 11; cost from, 123;

definition/description, 120–121, 123, 340–341; escaping from, 19, 26–27; laws affecting, 129, 365n37; as regulator, 11, 102, 120, 122, 123, 124, 340–341, 344, 345; See also Modalities of regulation

Norrath GDP, 108 NSA (National Security Agency), 206,

380n13 Nuclear waste regulation, 132–133, 134 Nunziato, Dawn, 91 {TXB3} Oberholzer, Felix, 337 O’Brien, David, 328–329 Obscenity, 245, 385n32 Olmstead, Roy, 158 Olmstead v.United States, 157–158,

160–163, 164, 214 On Liberty (Mill), 120 Open code: as constraint on government

power, 139, 150–151, 152–153; description, 139; in history of Internet, 145–149; regulability and, 150–151, 327; situations requiring, 141, 143; See also specific programs/projects

“Open source software movement,”139 {TXB3} P2P filesharing, xiii, 118, 152, 337 P3P (Platform for Privacy Preferences),

226, 228, 229, 230, 231, 256, 261, 382n41

Packet filtering technology, 56 Peer-to-peer filesharing, xiii, 118, 152, 337 Pentagon Papers, 238–239, 240 PGP (pretty good privacy) program, 143 PICS (World Wide Web Consortium’s

Platform for Internet Content Selection), 256–257, 258

Platform for Privacy Preferences (P3P), 226, 228, 229, 230, 231, 256, 261, 382n41

Plato, 59–60 Politics: description/features, 78–79;

influences on courts, 314, 315 Polling and democracy, 331–333 Pool, Ithiel de Sola, 260 Pornography: child pornography, 19, 20,

26–27, 245, 385n32; China and, 79; definition, 245, 246; German laws/CompuServe and, 39; regulation of, 245–248, 249–261, 385n32

Pornography/blockingchildrenfrom: in cyberspace,47,248,249–261; filters, 254–255,256,258–259; foreignsites, 254;“harmful tominors”taguse, 253–254,257–258;PICS,256–257,258, 261;regulationburden,251–252,254; zoningapproach,252–254,257–258,261

Posner, Richard, 210, 225, 235, 355n10 Post, David, 31, 288, 300–301 Post, Robert, 162 Postel, Jon, 321 Press-Connection, 240 Price discrimination, 221–222, 382n37 “Prior restraint,”239, 384n15, 16, 17 Privacy: as constraint on government

regulation, 213–214; dignity/searches and, 211–213, 214; domestic intelligence/security, 380n13; intellectual property rights comparison, 200–201, 230–231; in private, 201; regulation modalities and, 223–224; restrictions on giving up, 227; secret monitoring, 208–209, 212–213; solutions for, 223–232; values and, 191–192, 200–201;“wallet architecture”vs. identity layer, 51, 52–53; See also Anonymity; Data collection; Surveillance, digital

Privacy enhancing technologies (PETs), 223, 224, 226, 382n41; See also Platform for Privacy Preferences

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Privacy law, 227 Privacy property right, 228–230 Private law, 180–181 ProCD v.Zeidenberg, 187 Profiles in Courage (Kennedy), 329 Progressive, 240 Prohibition, 157 Property law, 109–110 Property protection, 169–171, 180–181 {TXB3} Racism: indirect segregation examples, 128,

134, 135, 220, 367n61, 381n31, 32, 33; laws affecting norms and, 365n37; slavery in U.S., 291–292, 293, 390n17, 392n3; U.S. courts and, 314

Radio Act (1927), 270 Radio waves, 272 Raducatu Group, 264 Rather, Dan, 243 Reed, David, 44, 111 Reeves, Harold, 169, 170, 171 Regulability: anonymity/identification

default, 37; as changing, x, xiii, xiv, 27, 32, 36–37, 71–72, 73–77, 75, 310, 311–312; closed code and, 149–150, 151, 327, 328; CompuServe/porn example, 39; control levels, 33–36, 73; cow control comparison, 73; data/use information“imperfection,”35–36; definition, 16, 23; geographic identity, 57–59; geography of user “imperfection,”35; identity of user “imperfection,”35; importance of understanding, 27, 32; Independence Day (movie) comparison, 77; Internet’s original form and, 33–34, 35, 38, 59–60; invisible man comparison, 38, 45, 59–60; knowledge needed with (overview), 23, 39; monitoring content, 54–57; open code and, 150–151, 327; post office comparison, 37, 44; tipping point for, 74–77, 75; view of Internet/cyberspace as not regulable, ix, xii, 3, 27, 29, 31–32, 73; See also Identity

“Regulable”definition, 16, 23 Regulation: of abortion, 131–132, 133–134;

“bad man”theory of, 5–6; balance and, 276–277; choice and, 126, 130–132, 277, 310, 311–312; costs/choice examples, 126, 130–132, 310;

direct/indirect methods (overview), 129, 132; discrimination against disabled persons, 131, 233–234; doing nothing/effects, 337–339; of drugs, 131–132, 366n48; as inevitable (cyberspace/Internet), 4, 336; modality interactions/tradeoffs and, 129–132, 130; of nuclear waste, 132–133, 134; protection of “dot”/individual example, 121–123, 122, 123, 234; regulator types overview, 122–125, 123, 234–235, 234, 340–345; seatbelt use, 130, 327, 365n43; skepticism about government and, 27–28, 319–323, 338; values and, 126; See also Architecture; Commerce; Government/regulation; Laws; Modalities of regulation; Norms

Regulation by code: architecture as politics, 24; borders story (poisonous flowers) example, 10–11, 13–15; definition/description, 81–82, 84; MMOGs and, 13–15, 24; overview, 24, 83–84; possible solution, 327–329; problems with (overview), 323–324; University of Chicago vs. Harvard, 33–34

Rehnquist Court, 315 Reid, Elizabeth, 97 Reidenberg, Joel, 61, 297 Republic,The (Plato), 59–60 Richards, Neil, 229–230 Rodham Clinton, Hillary, 333 Roe,Maher v., 132 Roe v.Wade, 132 Rosedale, Philip, 114, 283, 284 Rosen, Jeff, 210 Routers, 43 Rust v. Sullivan, 132, 133–134, 135 {TXB3} “Safe harbor”agreements, 63 Salinger, Pierre, 241, 244 Saltzer, Jerome, 44, 111 Scalia, Justice Antonin, 134, 167, 212 Science and peer review, 244 Search engines’ records, 204–205, 219 Searches of computers: ambiguity/choice

and, 25–26; burden and, 22–23; Carnivore and, 140–141; Constitution and, 21–22, 23, 25; data gathered by computers, 65; as“invisible,”20–23,

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25; judicial approval and, 140; “worms”that sniff, 20–23

Seatbelt use regulation, 130, 327, 365n43 Second Life: code and, 110, 111, 113–114,

283–285; commerce and, 108; description, 13, 108, 109, 284, 349n8; land ownership/property laws in, 109–110; sovereignty and, 27; statistics on use, 13

Sedition, 213, 214 Seigenthaler, John, Sr., 243 “Separating equilibrium,”359n11 Shamans, Software, and Spleens (Boyle), 198 Shapiro,Andrew, xv Shelley v.Kraemer, 134 Shenk, David, xv Simple mail transport protocol (SMTP),

144, 145 Single Sign-on (SSO) technology, 49–50 Sixth Amendment, 166, 213 60 Minutes, 243 Sklyarov, Dmitry, 117 Slashdot, 285 Slavery issue in U.S., 291–292, 293, 390n17,

392n3 Smith, Una, 105 Smoking regulation modalities, 122–123,

363n7 SMTP (simple mail transport protocol),

144, 145 Social norms.See Norms Software, free, 56, 139 Software, proprietary, 139 Sorkin, Michael, 345 Soros, George, 235 Source code, 145–146, 369n16 Sovereignty: citizen-sovereign model,

287–288, 289; doctrines of immunity, 290; merchant-sovereign model, 287–288

Sovereignty competition: in cyberspace/real space simultaneously, 298–302; debate on, 300–301; overview, 26–27, 297–298; pedophilia/travel example, 299; reciprocal blindness with, 297

Sovereignty competition/possible solutions: democracy and, 309–310; gambling example, 307–308, 391n33; geographical zoning and, 308–309, 310; identity layer and, 306, 307; many

laws rule, 306–310; no law rule, 302–305; one law rule, 305–306

Spam: definition/description, 245, 262, 387n64; economic costs of, 336–337; test of spammers’ sophistication, 75

Spam regulation: arms race with, 263; blacklisting servers, 263–264; code and, 262–263; current techniques, 261–264; difficulties with, 263–264, 388n65; digital IDs and, 69; filtering and, 263–264; identity layer and, 52; labeling and, 264–265, 388n66; labeling/bounty system, 265–267; mixed modality strategy with, 267; overview, 245–246, 261–268; in real space, 246, 248–249; regulability and, 52, 69, 73

Speech constraints: AOL and, 90–91, 235; in real-space forums, 91; removal in cyberspace, 18, 19; University of Chicago/Harvard Internet use and, 33–34; See also Free speech

Speech regulation:“abridging”speech and, 267; broad/narrow approach, 255, 257; free culture and, 268–270; free speech values and, 267–268; mixed modality strategy with, 268; transparency and, 255, 260; See also Free speech; Pornography; Spam

Speech regulators: broadcasting spectrum regulation, 270–275; distribution, 270–275; publication and, 19, 236, 237–245

Speed bumps/effects, 128, 135 Spitting/saliva recovery kits, 208 SSO (Single Sign-on) technology, 49–50 Stallman, Richard, 139, 147, 148, 176, 199 Stanford Law Review, 200 Stefik, Mark, 6, 85–86, 176, 177, 178–179,

187, 188, 190 Steinert-Threlkeld, Tom, 31 Stevens, Justice John Paul, 141 Stewart, Justice Potter, 163, 164, 165 Stone, Geoffrey, 33–34, 260 Strumpf, Koleman, 337 Stuntz,William, 213 Subjection ofWomen (Mill), 120 Sullivan,Rust v., 132, 133–134, 135 Sunstein, Cass, 214, 244, 260 Surveillance, digital: abuses of, 210;“best

intentions”phenomenon, 208, 210;

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conditions for use, 224; constitutionality of, 209–211, 213–214; judicial intervention and, 210–211; latent ambiguities/choices, 214; overview/examples, 202–209; as privacy threat, 223; solution for, 224–225; See also Data collection, digital

Sydney Olympics (2000), 128 {TXB3} Taft,William Howard, 161, 162, 163 “Tale in the Desert,A,”285 Taxes: bit tax, 357n27; digital IDs and, 69 TCP/IP protocols: description, 35, 111,

143–145; identity/authentication, 45; innovation and, 111–112; protocols for data exchange, 43–45

Telecommunications Act (1996), 116 Telephone networks/service: across

Internet/government regulability and, 64; circuit/packet switched networks, 63; monitoring of conversations, 206; phone call data, 22, 64–65, 215–216, 355n12; wiretapping design needs, 63–64

“Terry stop,”212 Text use on Internet, 12–13, 86–87, 88 There, 108–109 Thierer,Adam, 295 Tiebout, Charles, 287–288 Time, 249 Tipping, 222 Tocqueville,Alexis de, 333 Torvalds, Linus, 147–148 Traceability: AOL code and, 91–92; Internet

Protocol addresses, 46–47; ISPs and, 46–47; See also Identity

Transformative constitution, 313–314 Translation of Constitution, 156, 160,

161–168, 371n15, 18, 22 Transparency: democracy and, 138;

effectiveness and, 327–328; law and, 329; as value, 328; See also Open code

Transport layer (Internet), 144–145 Tribe, Laurence, 163–164, 165–166 “Trusted Computing,”148–149 Trusted systems, 177–180, 186, 188, 190,

191–192 TWA Flight 800 crash, 241, 242 UDP protocol, 144 Ultima Online, 348n7

UncleTom’s Cabin, 194 Unger, Roberto Mangabeira, 78 United States: citizenship in, 285–286,

291–292, 329–330; extra-territorial legislation of, 305–306; slavery issue in, 291–292, 293, 390n17, 392n3

United States,Katz v., 163–164 United States,NewYork v., 133, 134, 135 United States,Olmstead v., 157–158,

160–163, 164, 214 Universities: Internet beginnings with, 33;

regulability differences in, 33–35, 351n6; See also specific universities

University of Chicago, 33–34, 35, 350n4 UNIX, 101 USA Patriot Act, 305 USENET, 17, 18–19, 39, 248 {TXB3} Vaidhyanathan, Siva, 4–5, 194 Values: code writing and, 5, 6, 7, 77–78,

292–293; collective values, 198–199, 320, 322, 377n67; commercial vs. public values, 77–78; constitutional interpretation and, 163, 165, 167–168; courts and, 8, 316, 326–327; of intellectual commons, 198–199, 377n67; of space, 85–88; substantive/structural types, 6–7; See also specific values

V-chip, 116, 361n60 Video cameras, 62, 206–207 Vietnam, 281–282 VillageVoice, 98 Vinge,Vernor, xii, xiii, xiv Violence:“Grand Theft Auto,”19, 107;

LambdaMOO, 98–102, 360n35; on television, 115–116; See also Baker, Jake

Virtual space.See Cyberspace Viruses, 55, 73, 75 V-mail, 206 VOIP (Voice-over-IP); competition

example, 111–112; government design input, 64; as monitoring content example, 54–55

Voting and digital IDs, 69 Voting machines, 141–143 {TXB3} W3C, 145 Wade,Roe v., 132 Wagner, Polk, 118, 129, 130, 268

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Warrants, 21, 22, 158, 159–160, 370n8 Warren, Justice Earl/Warren Court, 315,

316 Warren, Robert, 240 Washington D.C. and architecture, 127 Washington Post, 210 Webster, Daniel, 329, 330 WELL, The, 84 “West Coast Code”/“East Coast Code,”

72–74, 324, 357n34 WiFi, 273 Wikipedia project, 199, 243–244, 285, 309 Williams, Bernard, 167 Wind-Up Records, 195 Wiretapping, 63–64, 157–158 Wood, Gordon, 221 Woo-Suk, Hwang, 244 World of Warcraft, 107 WorldPress, 147 World Wide Web, 47–48, 145, 146 World Wide Web Consortium’s Platform

for Internet Content Selection (PICS), 256–257, 258

Worms, 75 Wu, Tim, 58, 118, 119, 298, 301 {TXB3} Yahoo!; China and, 79; France/Nazi

paraphernalia, 57, 294–295, 297; government demand for data, 47, 204

Yale University, 102–106 {TXB3} Zdziarski, Jonathan, 263 Zeidenberg,ProCD v., 187 Zelizer,Viviana, 222 Ziegler, Donald, 296, 297 Zimmermann, Phil, 143 Zittrain, Jonathan, 74–75, 200 Z-theory, 74–77, 75

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