C O D E

C O D E
a n d
o f

o t h e r

l a w sc y b e r s p a c e

L A W R E N C E

L E S S I G

A MEMBER OF THE PERSEUS BOOKS GROUP

Copyright © 1999 by Lawrence Lessig
Published by Basic Books,
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FOR CHARLIE NESSON, WHOSE EVERY IDEASEEMS CRAZY—FOR ABOUT A YEAR.

C O N T E N T S

Prefaceix

P AR T 1 : R EG U LAB I L IT Y

Chapter 1
Chapter 2
Chapter 3
Chapter 4
Chapter 5

Code Is Law
Four Puzzles from Cyberspace
Is-IsmArchitectures of Control
Regulating Code

3
9
24
30
43

PA R T 2 : C OD E A N D O TH ER R E G UL AT O RS

Chapter 6
Chapter 7
Chapter 8

Cyberspaces
What Things Regulate
The Limits in Open Code

63
85
100

PA R T 3 : A P PLI C AT I ON S

Chapter 9
Chapter 10
Chapter 11
Chapter 12
Chapter 13
Chapter 14

Translation
Intellectual Property
PrivacyFree SpeechInterlude
Sovereignty

111
122
142
164
186
188

P AR T 4 : R ES P ON SE S

Chapter 15
Chapter 16
Chapter 17
Appendix
Notes
Index

The Problems We Face
Responses
What Declan Doesn’t Get

213
222
231
235
241
289

P R E F A C E

In the spring of 1996,at an annual conference organized under the name “Computers, Freedom, and Privacy”(CFP), two science-fiction writers told stories about cyberspace’s future. Vernor Vinge spoke about “ubiquitous law enforcement,” madepossible by “fine-grained distributed systems”; through computer chips linked by
the Net to every part of social life, a portion dedicated to the government’s use. Thisarchitecture was already being built—it was the Internet—and technologists werealready describing its extensions. As this network of control became woven into
every part of social life, it would be just a matter of time, Vinge said, before the government claimed its fair share of control. Each new generation of code would increase this power of government. The future would be a world of perfect regulation,and the architecture of distributed computing—the Internet and its attachments—
would make that perfection possible.
Tom Maddox followed Vinge. His vision was very similar, though the source ofcontrol, different. The government’s power would not come just from chips. The
real source of power, Maddox argued, was an alliance between government andcommerce. Commerce, like government, fares better in a better regulated world.
Property is more secure, data are more easily captured, and disruption is less of arisk. The future would be a pact between these two forces of social order.
Code and commerce.
When these two authors spoke, the future they described was not yet present.
Cyberspace was increasingly everywhere, but it was hard to imagine it tamed toserve the ends of government. And commerce was certainly interested,though credit
card companies were still warning customers to stay far away from the Net. The Net
was an exploding social space of something. But it was hard to see it as an exploding
space of social control.
I didn’t see either speech.I listened to them through my computer, three years after they spoke. Their words had been recorded; they now sit archived on a server at
MIT.1 It takes a second to tune in and launch a replay of their speeches about a perfectly ordered network of control. The very act o f listening to these lectures given
several years before—served on a reliable and indexed platform that no doubt
recorded the fact that I had listened, across high-speed, commercial Internet linesthat feed my apartment both the Net and ABC News—confirmed something of
their account. One can hear in the audience’s reaction a recognition both that theseauthors were talking fiction—they were science-fiction writers, after all—and thatthe fiction they spoke terrified.

x

prefaceThree years later it is no longer fiction. It is not hard to understand how the Net
could become the perfect space of regulation or how commerce would play a role inthat regulation. The current battle o ver MP3—a technology for compressing audio
files for simple distribution across the Net—is a perfect example.Last year MP3 wasquite the rage: CDs were copied and e-mailed, and web sites w ere built with thousands of songs archived and ready for anyone to take.“Free music” joined the list of
free stuff that the Internet would serve.
But this year the story has changed. The recording industry is pushing a standard
that would make it easier to control the distribution of these files; Congress has
passed a statute that makes it a felony to produce software that evades this control;and one company that produces Sony Walkman–like machines to play MP3 files has
already announced plans to enable its machine to comply with these standards ofcontrol. Control will be coded, by commerce, with the backing of the government.
Vinge and Maddox were first-generation theorists of cyberspace. They could telltheir stories about perfect control because they lived in a world that couldn’t be controlled. They could connect with their audience because it wanted to resist the future
they described.Envisioning this impossible world was sport.
Now the impossible has been made real. Much of the control in Vinge’s and Maddox’s stories that struck many of their listeners as Orwellian now seems quite reasonable. It is possible to imagine the system of perfect regulation that Vinge described,
and many even like what they see. It is inevitable that an increasingly large part of theInternet will be fed by commerce, and most don’t see anything wrong with that either. Indeed, we live in a time (again) when it is commonplace to say: let business takecare of things. Let business self-regulate the Net. Net commerce is the new hero.
This book continues Vinge’s and Maddox’s stories. I share their view of the Net’s
future; much of this book is about the expanding architecture of regulation that theInternet will become. But I don’t share the complacency of the self-congratulatory
cheers echoing in the background of that 1996 recording. It was obvious in 1996
who “the enemy”was; nothing is obvious now.
The future is Vinge’s and Maddox’s accounts together, not either alone. If wewere only in for the dystopia described by Vinge, we would have an obvious andpowerful response: Orwell gave us the tools, and Stalin g ave us the resolve, to resist
the totalitarian state.A spying and invasive Net controlled by Washington is not our
future. 1984 is in our past.
And if we were only in for the future that Maddox described, many of our citizens would believe this utopia, not science fiction.A world where “the market” runs
free and the evil we call government, defeated, would, for them, be a world of perfect freedom.
But neither story alone describes what the Internet will be. Not Vinge alone, not
Maddox alone, but Vinge and Maddox together: a future of control in large part exercised by technologies of commerce, backed by the rule of law.
The challenge of our generation is to reconcile these two forces. How do we protect liberty when the architectures of control are managed as much by the govern-

prefaceximent as by the private sector? How do we assure privacy when the ether perpetuallyspies? How do we guarantee free thought when the push is to propertize every idea?
How do we guarantee self-determination when the architectures of control are perpetually determined elsewhere? How, in other words, do we build a world of liberty
when the threats are as Vinge and Maddox together described them?
The answer is not in the knee-jerk antigovernment rhetoric of our past. Reality
is harder than fiction; governments are necessary to protect liberty, even if also sufficient 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 great work out there from both generations. Esther Dyson and John
Perry Barlow still inspire, and still move on (Dyson is now the temporary chair ofan organization some think will become the government of the Internet; 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.
My aim is this second generation. As fits my profession (I’m a lawyer), my contribution is more long-winded, more obscure, more technical, and more obtuse
than the best of either generation. But as fits my profession, 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 manuscript off to the publisher,
I can already hear the reactions: “Can’t you tell the difference between the power ofthe sheriff and the power of Walt Disney?”“Do you really think we need a government agency regulating software code?” And from the other side:“How can you argue for an architecture of cyberspace (open source software) that disables
government’s ability to do good?”
But I am also a teacher. If my writing produces angry reactions, then it mightalso effect a more balanced reflection. These are hard times to get it right, but theeasy answers to yesterday’s debate won’t get it right.
I have learned an extraordinary amount from the teachers and critics who havehelped 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 have had their advice. Larry
Vale and Sarah Whiting guided my reading in the field of architecture, though nodoubt I was not as patient a student as I should have been. Sonya Mead helped me
put into pictures what it would take a lawyer ten thousand words to say.
An army of students did most of the battle on earlier drafts of this book. Carolyn
Bane, Rachel Barber, Enoch Chang, Ben Edelman, Timothy Ehrlich, Dawn Far ber,

xii

prefaceMelanie Glickson, Bethany Glover, Nerlyn Gonzalez,Shannon Johnson, Karen King,Alex Mac gi ll ivray, Marcus Maher, David Melaugh, Teresa Ou, Laura Pirri, andWendy Seltzer provided extensive, if respectful, criticism. And my assistants, Lee
Hopkins and Catherine Cho, were crucial in keeping this army in line (and at bay).
Three students in particular have influenced my argument, though none are
fairly called “students.” Harold Reeves takes the lead in chapter 8. Tim Wu forced me
to rethink much of part 1. And Andrew Shapiro showed me the hopefulness in a future that I have described in very dark terms.
I am especially indebted to Catherine Marguerite Manley, whose extraordinary
talent, both as a writer and a researcher, made it possible to finish this work long before it othe rwise could have been finished. Thanks also to Tawen Chang and James
Stahir for their careful review of the notes, and work to keep them honest.
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 struggling over the last five
years both to understand what cyberspace is and to make it better. This community
includes the scholars and writers I discuss in the text, especially the lawyers Yochai
Benkler, James Boyle, Mark Lemley, David Post, and Pam Samuelson. I’ve also benefited greatly from conversations with nonlawyers, especially Hal Abelson, John
Perry Barlow, Joseph Reagle, Paul Resnick, and Danny Weitzner. But perhaps more
importantly, I’ve benefited from discussions with the activists,in particular the Center for Democracy and Technology, the Electronic Frontier Foundation, and theAmerican Civil Liberties Union. They have made the issues real,and they have donemuch to defend at least some of the values that I think imp ortant.
This book would not have been written, however, but for a story by Julian
Dibbell,a conference organized by Henry J. Perritt,and many arguments with DavidJohnson. 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 encouragement that year.
The Berkman Center for Internet and Society at Harvard Law School has mademuch of my research possible.I am grateful in particular to Lillian and Myles Berkman for that support,and especially to the center’s executive director and my sometime coteacher, Jonathan Zittrain, for his support and, more important, friendship.
I’ve dedicated this book to the director of the Berkman Center, Charlie Nesson, who
has given me the space and support to do this work and a certain inspiration to push
it differently.
But more significant than any of that support has been the patience, and love, ofthe person to whom I’ve dedicated my life, Bettina Neuefeind. Her love will seem
crazy, and wonderful, for much more than a year.

C O D E

P A R T

O N E

r e g u l a b i l i t y

O N E
cod e

is

law

A dec ade ago, in t h e spr ing of 1989, communism in Eur ope died —co l l a psed , asa tent would fall if its main post were removed. No war or revolution brought communism to its end. Exhaustion did. Born in its place across Central and Eastern Europe was a new political regime, the beginnings of a new political society.
For constitutionalists (as I am), this was a heady time.I had just graduated fromlaw school in 1989, and in 1991 I began teaching at the University of Chicago.
Chicago had a center devoted to the study of the emerging democracies in Central
and Eastern Europe.I was a part of that center. Over the next five years I spent more
hours on airplanes, and more mornings drinking bad coffee, than I care to remember.
Eastern and Central Europe were filled with Americans telling former Communists how they should govern. The advice was endless and silly. Some of these visitors literally sold constitutions to the emerging constitutional republics; the balance
had innumerable half-baked ideas about how the new nations should be governed.
These Americans came from a nation where constitutionalism had worked, yet apparently 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’s collapse were filled with antigovernmental passion—with a surge of anger directed against the state and against state regulation. Leave us alone, the people
seemed to say. Let the market and nongovernmental organizations—a new society—take government’s place. After generations of communism, this reaction wascompletely understandable. What compromise could there be with the instrumentof your repression?
A certain American rhetoric supported much in this reaction. A rhetoric of libertarianism. Just let the market reign and keep the government out of the way, and4

C O D E

freedom and prosperity would inevitably grow. Things would take care of themselves. There was no need, and could be no place, for extensive regulation by thestate.
But things didn’t take care of themselves. Markets didn’t flourish. Governments
were crippled,and crippled governments are no elixir of freedom. Power didn’t disappear—it simply shifted from the state to mafiosi, themselves often created by thestate. The need for traditional state functions—police, courts,schools,health care—didn’t magically go away. Private interests didn’t emerge to fill the need. Instead,needs were unmet. Security evaporated.A modern if plodding anarchy replaced thebland communism of the previous three generations: neon lights flashed advertisements for Nike; pensioners were swindled out of their life savings by fraudulent
stock deals; bankers were murdered in broad daylight on Moscow streets. One system of control had been replaced by another, but neither system was what Western
libertarians would call freedom.
At just about the time when this post-communist euphoria was waning—in the
mid-1990s—there emerged in the West another “new society,” to many just as exciting as the new societies promised in post-communist Europe. This was cy berspace.
First in universities and centers of research, and then within society generally, cyberspace became the new target of libertarian utopianism. Here freedom from thestate would reign. If not in Moscow or Tblisi,then here in cyberspace would we findthe ideal libertarian society.
The catalyst for this change was likewise unplanned. Born in a research projectin the Defense Department,cyberspace too arose from the displacement of a certain
architecture of control. The tolled, single-purpose network of telephones was displaced by the untolled and multipurpose network of packet-switched data. And thus
the old one-to-many architectures of publishing (television, radio, newspapers,
books) were supplemented by a world where everyone could be a publisher. People
could communicate and associate in ways that they had never done before. The
space promised a kind of society that real space could never allow—freedom without anarchy, control without government, consensus without power. In the words ofa manifesto that will define our generation: “We reject: kings, presidents and voting.
We believe in: rough consensus and running code.”1
As in post-Communist Europe, first thoughts about cyberspace tied freedom tothe disappearance of the state. But here the bond was even stronger than in postCommunist Europe. The claim now was that government could not regulate cyberspace, that cyberspace was essentially, and unavoidably, free. Governments could
threaten, but behavior could not be controlled;laws could be passed, but they would
be meaningless. There was no choice about which government to install—none
could reign. Cyberspace would be a society of a very different sort. There would be
definition and direction, but built from the bottom up, and ne ver through the direction of a state. The society of this space would be a fully self-ordering entity,
cleansed of governors and free from political hacks.

code is law

5

I taught in Central Europe during the summers of the early 1990s; I witnessed
the transformation in attitudes about communism that I described at the start ofthis chapter. And so I felt a bit of déjà vu when in the spring of 1995,I began to teachthe law of cyberspace, and saw in my students these very same post-communist
thoughts about freedom and government. Even at Yale—not known for libertarianpassions—the students seemed drunk with what James Boyle would later call the“libertarian gotcha”:2 no government could survive without the Internet’s riches, yet
no government could control what went on there. Real-space governments would
become as pathetic as the last Communist regimes. It was the withering of the statethat Marx had promised, jolted out of existence by trillions of gigabytes flashingacross the ether of cyberspace. Cyberspace, the story went, could only be free. Freedom was its nature.
But why was never made clear. That cyberspace was a place that governments
could not control was an idea that I never quite got. The word itself speaks not of
freedom but of control. Its etymology reaches beyond a novel by William Gibson(Neuromancer, published in 1984) to the world of “cybernetics,” the study of control
at a distance.3 Cybernetics had a vision of perfect regulation. Its very motivation was
finding a better way to direct. Thus,it was doubly odd to see this celebration of noncontrol over architectures born from the very ideal of control.
As I said,I am a constitutionalist.I teach and write about constitutional law. I believe that these first thoughts about government and cyberspace are just as misguided as the first thoughts about government after communism. Liberty incyberspace will not come from the absence of the state. Liberty there, as anywhere,
will come from a state of a certain kind.4 We build a world where freedom can flourish not by removing from society any self-conscious control; we build a world where
freedom can flourish by setting it in a place where a particular kind of self-conscious
control survives. We build liberty, that is, as our founders did, by setting society
upon a certain constitution.
But by “constitution” I don’t mean a legal text. Unlike my countrymen in Eastern
Europe, I am not trying to sell a document that our framers wrote in 1787. Rather,as the British understand when they speak of their constitution, I mean an architec ture—not just a legal text but a way of life—that structures and constrains social andlegal power, to the end of protecting fundamental values—principles and ideals thatreach beyond the compromises of ordinary politics.
Constitutions in this sense are built, they are not found. Foundations get laid,
they don’t magically appear. Just as the founders of our nation learned from the anarchy that followed the revolution (remember: our first constitution, the Articles ofConfederation, was a miserable failure of do-nothingness),so too are we beginningto see in cyberspace that this building, or laying, is not the work of an invisible hand.
There is no reason to believe that the grounding for liberty in cyberspace will simply emerge. In fact, as I will argue, quite the opposite is the case. As our framers
learned,and as the Russians saw, we have every reason to believe that cyberspace,left

6

C O D E

to itself, will not fulfill the promise of freedom. Left to itself,cyberspace will becomea perfect tool of control.5
Control. Not necessarily control by government, and not necessarily control tosome evil, fascist end. But the argument of this book is that the invisible hand ofcyberspace is building an architecture that is quite the opposite of what it was at
cyberspace’s birth. The invisible hand, through commerce, is constructing an architecture that perfects control—an architecture that makes possible highly efficient regulation. As Vernor Vinge warned in 1996, a distributed architecture of
regulatory control; as Tom Maddox added, an axis between commerce and thestate.6
This book is about that change,and about how we might prevent it. When we see
the path that cyberspace is on—an evolution I describe in part 1—we see that muchof the “liberty” present at cyberspace’s founding will vanish in its future. Values that
we now consider fundamental will not nece s s a ri ly remain. Freedoms that were
foundational will slowly disappear.
If the original cyberspace is to survive, and if values that we knew in that world
are to remain, we must understand how this change happens,and what we can do in
response. That is the aim of part 2. Cyberspace presents something new for those
who think about regulation and freedom. It demands a new understanding of how
regulation works and of what regulates life there. It compels us to look beyond the
traditional lawyer’s scope—beyond laws, regulations, and norms. It requires an account of a newly salient regulator.
That regulator is the obscurity in the book’s title—Code. In real space we recognize how laws regulate—through constitutions, statutes, and other legal codes. In
cyberspace we must understand how code regulates—how the software and hardware that make cyberspace what it is regulate cyberspace as it is. As William Mitchellputs it, this code is cyberspace’s “law.”7 Code is law.
This code presents the greatest threat to liberal or libertarian ideals, as well as
their greatest promise. We can build, or architect, or code cyberspace to protect values that we believe are fundamental, or we can build, or architect, or code cyberspace to allow those values to disappear. There is no middle ground. There is no
choice that d oes not include some kind of building. Code is never found; it is only
ever made, and only ever made by us. As Mark Stefik puts it,“Different versions of[cyberspace] support different kinds of dreams. We choose, wisely or not.”8
My argument is not for some top-down form of control; my claim is not that
regulators must occupy Microsoft. A constitution envisions an environment; as Justice Holmes said, it “call[s] into life a being the development of which [can not be]foreseen.”9 Thus, to speak of a constitution is not to describe a one-hundred-day
plan. It is instead to identify the values that a space should guarantee. It is not to describe a “government”;it is not even to select (as if a single choice must be made) between bottom-up or top-down control. In speaking of a constitution in cyberspace
we are simply asking: What values are protected there? What values will we build
into the space to encourage certain forms of life?

code is law

7

The “values” here are of two sorts—substantive and structural. In the American
tradition, we worried about the second first. The framers of the Constitution of1787 (enacted without a Bill of Rights) were focused on structures of government.
Their aim was to ensure that a particular government (the federal government) did
not become too powerful. And so they built into its design checks on the power ofthe federal government and limits on its rea ch over the states.
Opponents of that Constitution insisted that more checks were needed, that theConstitution needed to impose substantive limits on government’s power as well as
structural limits. And thus the Bill of Rights was born. Ratified in 1791, the Bill of
Rights promised that the federal government will not remove certain protections—of speech, privacy, and due process. And it guaranteed that the commitment to thesesubstantive values will remain despite the passing fancy of normal government.
These values were to be entrenched, or embedded,in our constitutional design;theycan be changed, but only by changing the Constitution’s design.
These two kinds of protection go together in our constitutional tradition. One
would have been meaningless without the other. An unchecked structure could easily have overturned the substantive protections expressed in the Bill of Rights, andwithout substantive protections, even a balanced and reflective government could
have violated values that our framers thought fundamental.
We face the same questions in constituting cyberspace, but we have approachedthem from an opposite direction. Already we are struggling with substance: Will cyberspace promise privacy or access? Will it preserve a space for free speech? Will it
facilitate free and open t rade? These are choices of substantive value, and they are
the subject of much of this book.
But structure matters as well. What checks on arbitrary regulatory power can webuild into the design of the space? What “checks and balances” are possible? How do
we sep a ra te powers? How do we ensure that one regulator, or one government,
doesn’t become too powerful?
Theorists of cyberspace have been talking about these questions since its birth. 10
But as a culture, we are just beginning to get it. We are just beginning to see why thearchitecture of the space matters—in particular, why the ownership of that architecture matters. If the code of cyberspace is owned (in a sense that I describe in thisbook), it can be controlled; if it is not owned, control is much more difficult. The
lack of ownership, the absence of property, the inability to direct how ideas will be
used—in a word, the presence of a commons—is key to limiting, or checking, certain forms of governmental control.
One part of this question of ownership is at the core of the current debate between open and closed source software. In a way that the American founders would
have instinctively understood, “free software” or “open source software”—or “opencode,” to (cowardly) avoid taking sides in a debate I describe later—is itself a checkon arbitrary power. A structural guarantee of constitutionalized liberty, it functions
as a type of separation of powers in the American constitutional tradition. It stands
alongside substantive protections, like freedom of speech or of the press, but its

8

C O D E

stand is more fundamental. As I argue by the end of this book, the first intuition of
our founders was right:structure builds substance. Guarantee the structural (a spacein cyberspace for open code), and (much of) the substance will take care o f itself.
In part 3, I bring these questions back down to the ground. I consider four areasof controversy—intellectual property, privacy, free speech, and sovereignty—andidentify values within each that are now at risk. The interaction between law andcode helps constitute these values. My aim is to show how we might respond to therisk, using the tools from part 2.
That’s the hopeful part. My final part is not.I end by asking whether we—meaning Americans—are up to the challenge that these choices present. Given our present trad i ti on in constitutional law and our present faith in representative
government,are we able to respond collectively to the changes I will have described?
My strong sense is that we are not. We are at a stage in our history when we urgently need to make fundamental choices about values, but we trust no 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, and Congressshould not do it because, as a political culture, we so deeply question the productsof ordinary government.
Change is possible.I don’t doubt that revolutions remain in our future; the open
code movement is just such a revolution. But I fear that it is too easy for the government to dislodge these revolutions, and that too much will be at stake for it to allow
the revolutionaries to succeed. Our government has already criminalized the core
ethic of this movement, transforming the meaning of hacker into something quitealien to its original sense. This, I argue, is only the start.
Things could be different. They are different elsewhere. But I don’t see how they
could be different for us just now. This no doubt is a simple confession of the limitsof my own imagination.I would be grateful to be proven wrong. I would be grateful
to watch as we relearn—as the citizens of the former Communist republics arelearning—how to escape our disabling ideas about the possibilities for governance.
I begin in the first chapter with four stories about cyberspace, which will set out
four themes to guide the balance of the book. These themes describe what is different here. Even if despair about governance is the same, at least these things are different.

T W Ofour

puz zlesfr om

cyb ers pa ce

Most peopl e t h ink t h at t o under st and l aw, you need t o under st and a set ofrules. That’s a mistake, as Stanley Fish taught us.1 The law is best understood
through stories—stories that teach what is later summarized in a catalog of rules.
So it is with stories that I begin. Each (there are four) captures a theme that recurs throughout the book.Each is meant both to orient and to disorient—that is, toshow ways in which cyberspace is both like and unlike real space. At the end of thischapter, I come clean about the themes and provide a map. For now, just focus on
the stories.

B O R D E R S

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, this particular dispute, in anger. It began with amisunderstanding. In this world, misunderstandings like this are far too common.
Martha thought about that as she wondered whether she should stay. There wereother places she could go. Leaving would mean abandoning what she had built, but
frustrations like this were beginning to get to her. Maybe,she thought,it was time tomove on.
The argument was about borders—about where her land stopped. It seemed likea simple idea, one you would have thought the powers-that-be would have workedout many years before. But here they were,her neighbor Dank and she, still fighting
about borders. Or rather, about something fuzzy at the borders—about somethingof Martha’s that spilled over into the land of others. This was the fight, and it all related to what Martha did.
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

10

C O D Eflowers were also poisonous. For this was Martha’s weird idea: to make flowers of extraordinary beauty which,if touched, would kill.Strange no doubt,no one said that
Martha wasn’t st range. She was unusual, as was this neighborhood. But sadly, disputes like this were not.
The start of the argument was predictable enough. Martha’s neighbor, Dank,hada dog. Dank’s dog died. And of course,the dog died because it had eaten a petal 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—
perhaps with a bit too much anger, or perhaps with anger appropriate to the situation.
“There is no reason to grow deadly flowers,” Dank yelled across the fen ce .
“There’s no reason to get so upset about a few dead dogs,” Martha replied. “A dog
can always be replaced. And anyway, why have a dog that suffers when dying? Ge t
yourself a pain-free dog, and my petals will cause no harm.”
I came into the argument at about this time. I was walking by, in the way one
walks in this space. (Some would say I was teleporting, but we needn’t complicate
the story with jargon. Let’s just say I was walking.) I saw the two neighbors getting
increasingly angry with each other. I had heard about the disputed flowers—about
how some petals carried their poison. It seemed to me a simple problem to solve, but
I guess it’s simple only if you understand how problems like this get made.
Dank and Martha were angry because in a sense they were stuck. Both had built
a life in the neighborhood, invested many hours there, and come to understand its
limits. This is a common condition: we all build our lives in places with limits. We
all are disappointed at times. What was different about Dank and Martha?
One difference was the nature of the space, or context, where their argument was
happening. This was not “real space” but a kind of virtual space. It was “Avatar
space,” and Avatar space is quite different from the space we call real. 3
Real space is the place where you are just now: your office, your den, maybe apool. It’s a world defined by both laws that are man-made and others that are not.
“Limited liability” for corporations is a man-made law. It means that the directors ofa corporation (usually) cannot be held personally liable for the sins of the company.
Limited life for humans is not a man-made law: we all will die. In real space our lives
are subject to both sorts of law, though in principle we could change one sort.
But there are other sorts of laws in real space as well. You bought this book, I
trust, or you borrowed it from someone who did. If you stole it, you are a thief,
whether you are caught or not. Social norms define our language; our language
would define you as a thief, and not just because you took something. There areplenty of ways to take something but not be thought of as a thief. If you and a groupof friends come across a pile of money blowing in the wind,taking a few dollars will
not make you a thief; indeed,not taking a few dollars might make you a chump. But
stealing this book from the bookstore (even when there are so many left for others)
marks you as a thief. Social norms make it so, and we live life subject to these norms.

fo ur puz zles from cyber space

11

Some of these norms can be changed collectively, even if not individually. I canchoose to burn my draft card, but I cannot choose whether doing so will make me ahero or a traitor. I can refuse an invitation to lunch, but I cannot choose whether doing so will make me rude. I have choices in real life, but escaping the consequences
entailed by these laws is not one of my choices. These laws constrain us in ways thatare so familiar as to be all but invisible.
Avatar space is different. It is, first of all,a virtual space—like a cartoon on a television screen. But unlike a cartoon, avatar space enables you to control the characters on the screen in real time. At least, you control your character—one among
many characters controlled by many others in this space. One builds the world one
will inhabit here. As a child, you grew up learning the physics that governed theworld of Roadrunner and Wile E. Coyote (violent but forgiving); your children willgrow up making the world of Roadrunner and Wile E. Coyote (still violent, butmaybe not so forgiving). They will define the space and then live out the story. Their
choices will make the laws of that space real.
This is not to say that Avatar space is unreal. There is real life in Avatar space,constituted by how people interact. The space is where people interact—much as
they interact in real space no doubt, but with some important differences. In Avatar
space the interaction is in a virtual medium. In 1990s speak,the interaction is in cyberspace. People “jack” into these virtual spaces. They do things there.
The things people do there are highly varied. Some simply get together and gab:they appear (in a form they select, with qualities they choose and biographies they
have written) in a virtual room and type messages to each other. Or they walkaround (again, the ambiguity is not a slight one) and talk to people. My friend Rickdoes this as a cat—a male cat, he insists. As a male cat, Rick parades around thisspace and talks to anyone who’s interested. He aims to flush out the cat-loving sorts.
The rest, he reports, he punishes.
Others do much more in Avatar space than gab. Some, for example, homestead.
Depending on the world and its laws, citizens are given plots of undeveloped land,
which they hold as long as they develop them. People spend extraordinary amountsof time building a life on these plots. (Isn’t it extraordinary the way these people
waste time? While you and I spend up to seventy hours a week working for firms wedon’t own and building futures we’re not sure we’ll enjoy, these people are designingand building things and making a life, even if only a virtual one.Scandalous.) Theybuild houses—by designing and then constructing them—have family or friends
move in, and pursue hobbies or raise pets. They may grow trees or odd plants—like
Martha’s.
Avatar space grew out o f “MUD” or “MOO” space.4 MUDs and MOOs are virtual worlds as well, but they are text-based virtual worlds. There are no pictures or
cartoons on a MUD or MOO screen, just text, reporting what someone says anddoes. You can construct objects in these spaces and have them do things, but the objects act only through the mediation of text. (Their actions are generally quite sim-

12

C O D Eple, but even simple can be quite funny. One year, in a MUD that was part of my cyberlaw class, someone built a character named JPosner. If you poked JPosner, hemuttered, “Poking is inefficient.” Another character was FEasterbrook. Stand in aroom with FEasterbrook and use the word “fair,” and FEasterbrook would repeat
what you said, substituting the word “efficient.”“It’s not fair” became “You mean,it’s
not efficient.”)
Although it was easy for people who liked texts or who wrote them to understand the attraction of these text-based realities, and to see how they could constitute a reality, it was not so easy for the many people who didn’t have that fondness
for texts. But there is no such limitation in Avatar space. It is the movie version of acyberspace novel. You build things here,and they survive your leaving. You can build
a house,and people walking down the street see it. You can let them come in,and incoming into your house, they see things about you. Or they can see how you construct your world. If the particular Avatar space permits it, they can see how you’vechanged the laws of the real world. In real space, for instance, people slip on wet
floors, but in the space you’ve built that law may not exist.
Here we get back to Martha and Dank. In their exchange—when Martha blamed
Dank for having a dog that died with pain—they revealed what is amazing about
this space. Martha’s remarks (“Why do you have a dog that suffers when dying? Get
yourself a pain-free dog, and my petals will cause no harm”) may have struck you as
odd. You may have thought,“How weird that someone would think that the fault lay
not in the poison petals but in a dog that died with pain.” But in this space Dank did
have a choice about how his dog would die. Maybe not a choice about whether “poison” would “kill” a dog, but a choice about whether the dog would suffer when it
died. He also had a choice about whether a copy of the dog could be made, so that
if it died it could “come back to life.” In Avatar space these possibilities are not given
by God. Or rather, if they are defined by God, then we are God. The possibilities in
Avatar space are determined by the code—the software, or architecture, that makes
the Avatar space what it is. “What happens when” is a statement of logic; it asserts a
relationship that is manifested in code. In real space we don’t make much of thecode. In Avatar space we do.
So, when Martha said what she said about the dog, Dank made what seemed tome an obvious response. “Why do your flowers have to stay poisonous once theyleave your land? Why not make the petals poisonous only when on your land? Whenthey leave your land—when, for example, they are blown onto my land—why not
make them harmless?”
It was an idea, but it didn’t really help. For Martha made her living selling these
poisonous plants. Others too liked the idea of this art tied to death. So it was not asolution to make poisonous plants that were poisonous only on Martha’s property,
unless Martha was also interested in collecting a lot of very weird people on her
land.
But the idea did suggest another. “Okay,” said Dank, “why not make the petals
poisonous only when in the possession of someone who has purchased them? Iffour puzzles from cyberspace

13

they are stolen, or if they blow away, then let the petals lose their poison. But when
kept by the owner of the plant, let the p etals keep their p oison. Isn’t that a solution
to the problem that both of us face?”
The idea was ingenious. Not only did it help Dank; it helped Martha as well. For
the code,as it existed,did allow theft.(People want reality in that virtual space;there
will be time enough for heaven later.) But if Martha could modify the code slightly
so that theft removed a plant’s value, that change would protect the profit in her
plants as well as Dank’s dogs. Here was a solution that made both neighbors better
off—what economists call a pareto superior move.5 And it was a solution that was as
possible as any other. All it required was a change of code.
Think for a second about what’s involved here. “Theft” entails (at minimum) achange in possession. But in Avatar space “possession” is just a relation defined by
the software that defines the space. That same code must also define the properties
that possession yields. It must distinguish, for example, between having a cake andeating it. In both cases you “possess” the cake, but in the se cond case what you possess must change over time. With each “bite,” you possess less.
So why not 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? Rather than resolve the dispute between
Martha and Dank by making one of them change his or her behavior, why notchange the laws of nature to eliminate the conflict altogether?
We’re a short way into this relatively short book, and what I’m about to say may
make it a very short book indeed (for you at least). This book is all about the question raised by this simple story, and about the simplicity in this apparently simple
answer. This is not a book about Avatar space; the story about Martha and Dank is
the first and last example that will include Avatars. But it is a book about cyberspace.
My claim is that cyberspace will raise precisely the questions that Martha and Dank
confronted, as well as the questions that their solution raised. What does it mean tolive in a world where problems can be programmed away? And when,in that world,should we program problems away?
It is not Avatar space that makes these questions interesting problems for law; thevery same problems will arise outside of Avatar space, and outside MUDs andMOOs. The problems of these spaces are problems of cyberspace generally, and as
more of our life becomes wired, these questions will become more pressing.
But I have learned enough in this business to know that I can’t convince you of
this with an argument. (I’ve spent the last five years talking about this subject; atleast 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 introduce and disorient. That, again, is the purpose of this chapter. Out of confusion, something useful
will emerge.
Let me describe a few other places, and the oddities that inhabit them.

14

C O D EG O V E R N O R S

A state—call it “Boral”—doesn’t like gambling, even though some citizens like togamble. But the state is the boss; the people have voted; the law is as it is. Gamblingin the state of Boral is illegal.
Then comes the Internet. With the Net wired into their phones, some citizens ofBoral decide that Internet gambling is the next “killer app.” Someone sets up serversthat provide access to online gambling. The state doesn’t like this business; the businessmen are just illegal gamblers. Shut down your servers, the attorney general
warns, or we will lock you up.
Wise even if dishonest,the gamblers agree to shut down their servers in the stateof Boral. But they don’t exit the gambling business. Instead, they rent space on aserver in an “offshore haven.” This offshore web server hums away, once again making gambling available on the Net.
And just as available to people in Boral. For here’s the important point: given thearchitecture of the Internet (at least as it was), it doesn’t matter where in real space
the server is set up. 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 access can be passed throughanonymizing sites that make it practically impossible in the end to know what went
where.
The Boral attorney general faces a difficult problem. She may have moved thegamblers out of her state, but she hasn’t succeeded in reducing gambling on the Net.
She once would have had a group of people she could punish, but now she has madethem essentially free from punishment. The world for this attorney general haschanged. By going online, the gamblers moved into a world where behavior, so theargument goes, is no longer regulable.
Regulable. I am told there is no such word, though lawyers apparently do notknow that fact. By “regulable” I mean simply that a certain behavior is capable ofregulation. The term is comparative, not absolute—in some place, at some time, acertain behavior will be more regulable than at another place and in another time.
My claim about Boral is simply that the Net makes gambling less regulable there
than it was before the Net.

J A K E ’ S

C O M M U N I T I E S

If you had met Jake at a party in Ann Arbor (were Jake at a party in Ann Arbor), you
would have forgotten him.6 If you didn’t forget him, you might have thought, here’s
another quiet, dweeby University of Michigan undergraduate, terrified of the world,
or at least of people in the world.
You wouldn’t have figured Jake for an author—and quite a famous short-story
author, within his circle at least. Jake was a char acter in his own stories, yet who hefo ur puz zl es from cyber space15

was in his 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 reallife” made much sense.
Jake wrote stories about violence—about sex as well, but mainly about violence.
They seethed with hatred, especially of women.
In real space Jake had quite successfully hidden this propensity. He was one of amillion boys: unremarkable, indistinguishable, harmless. Yet however inoffensive inreal space, his harmfulness in cyberspace was increasingly well known. His stories
were published in USENET, in a group called alt.sex.stories.
USENET is a part of most spaces on the Net. It isn’t a network, except in thesense that the personal ads of a national newspaper are a network. It is a protocol—
a set of rules named the net news transfer protocol (NNTP)—for exchanging messages intended for public viewing. These messages are organized into “newsgroups,”
and the newsgroups are organized into subjects. Most of the subjects are quite technical. Many are related to hobbies. Some are related to sex. Some messages in the sex
newsgroups come with attached files that can be converted to pictures. But some,like Jake’s, are simply stories.
There are thousands of newsgroups, each carrying hundreds of messages. Anyone with access to a USENET server can get access to the messages (or at least to theones his administrator wants him to read), and anyone with access can post a message or respond to one already posted. Imagine a public bulletin board on whichpeople post questions or comments. Anyone can read the board and add his or her
own thoughts. Now imagine fifteen thousand boards, each with hundreds of“threads” (strings of arguments, each tied to the next). That, in any one place, is
USENET. Now imagine these fifteen thousand boards, with hundreds of threads
each, on millions of computers across the world. Post a message in one group, and it
is added to that group’s board everywhere. That, for the world, is USENET.
Jake, as I said, posted to a group called alt.sex.stories. “Alt” in that name refers to
the hierarchy that the group sits within. There were seven primary hierarchies.7 Alt
was created in reaction to the initial se ven: groups are added to the seven through aformal voting process among participants in the groups, but groups are added to alt
based solely on whether administrators choose to carry them. Usually, administrators will carry them if they are popular.
Among these groups that are carried only on demand, alt.sex.stories is quite
popular. As with any writing space, if stories are “good” by the standards of thespace—if they are stories that users of the space demand—they are followed andtheir authors become well known. Lots of trash is sputtered out on USENET, but if
a writer is known to write valuable stuff,his or her trash will be sifted out.
Jake’s stuff was valuable in this sense. His stories, about kidnapping, torturing,
raping and killing women, were as graphic and repulsive as any such story could
be—which is w hy Jake was so famous among like-minded sorts. He was a supplierto these people, a constant and consistent fix. They needed these accounts of innocent women being violated. Jake supplied them for free.

16

C O D EOne 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 wasshocked at the story, and angry that it bore the tag “umich.edu” on the account. He
called his alma mater and complained. They took the complaint seriously.8
The university contacted the police;the police contacted Jake with handcuffs anda jail cell. A slew of doctors examined Baker. Some concluded that he was a threat.
The government agreed with them, especially after it seized his computer and discovered e-mails between Jake and a Canadian fan who was planning to execute inreal space one of the stories published in cyberspace. At least,that’s what the e-mails
said. No one could tell for certain what the two men intended. Jake said it was all
pure fiction, and indeed, there was no evidence that the words had ever describedsomething that was not purely fictional.
Federal charges were brought against Jake, for the transmission of a threat. Jake
said that his stories were only words, protected by the First Amendment to the U.S.
Constituti on . A month and a half later a court agreed, and the charges were
dropped.9
I don’t care so much just now about whether Jake Baker’s words should havebeen protected by the Constitution.10 My concern is Jake Baker himself, a person
normed into apparent harmlessness by real-space society but set free in cyberspace
to become the author of this violence. People said Jake was brave, but he wasn’t“brave” in real space. He didn’t express his hatred in classes, among friends, or in theschool newspaper. He slithered away to cyberspace, and only there did his deviancy
flourish. He could do that because of something about him, and because of something about cyberspace.
Jake was in effect an author and publisher in one. He wrote stories, and as
quickly as he finished them he published them—to some thirty million computers
across the world within a few days. His potential audience was larger than twice thatfor the top fifteen best-selling novels combined, and though he made nothing fromhis work, the demand for it was high. Jake had discovered a way to mainline his depravity into the veins of a public for whom this stuff was otherwise quite difficult tofind.(Even Hustler wouldn’t publish the likes of this.)
Of course, there were other ways Jake could have published. He could have offered his work to Hustler, or worse. But no real-world publication would have given
Jake a comparable audience. Jake’s readership was potentially millions, stretchingacross country and continent, across culture and taste.
This reach was made possible by the power in the network :a nyone anywhere could
publish to everyone, everywhere. The network allowed publication without filtering,editing, or responsibility. One could write what one wanted, sign it or not, post it tomachines across the world, and within hours the words would be everywhere. The
network removed the most important constraint on speech in real space—the separation of publisher from author. There is vanity publishing in real space, but only
the rich can use it to reach a broad audience. For the rest of us, real space affords
only the access that the publishers want to give us.

fo ur puz zl es from cyber space

17

But the most significant feature of this story about Jake is how cyberspace permitted him to escape the constraints of real space. Cyberspace is not, of course, aplace; you don’t go anywhere when you are there. But it is also quite true that theworld Jake lived in when w riting was a spa ce quite different from the space he lived
in here. He was free there of real-life constraints. He was free of the norms and understandings that had successfully formed him into a member of a college community. Maybe he wasn’t perfectly at home; maybe he wasn’t the happiest. But theworld of the University of Michigan had succeeded in steering him away from thelife of a psychopath—except when it g ave him access to the Net. On the Net he wassomeone else.

W O R M S

T H A T

S N I F F

A “worm” is a bit of computer code that is spit out on the Net and works its way into
the systems of vulnerable computers. It is not a “virus” because it doesn’t attach itself to other programs and interfere with their operation. It is just a bit of extra codethat does what the code writer says. The code could be harmless, simply sitting on
someone’s machine. Or it could be harmful, corrupting files or doing other damage
that its author commands.
Imagine a worm designed to do good (at least in the minds of some). Imagine
that the code writer is the FBI and that the FBI is looking for a particular document
belonging to the National Security Agency (NSA). Suppose that this document isclassified and illegal to possess without the proper clearance. Imagine that the worm
propagates itself on the Net, finding its way onto hard disks wherever it can; once on
a computer’s hard disk,it scans the entire disk. If it finds the NSA document,it sends
a message back to the FBI saying as much. If it doesn’t,it erases itself.Finally, assume
that it can do all this without “interfering”11 with the operation of the machine. No
one would know it was there;it would report back nothing except that the NSA document was on the hard disk. 12
Is the worm unconstitutional? This is a hard question that at first seems to havean easy answer. The worm is engaging in a government-initiated search of citizens’disks. There is no reasonable suspicion (as the law ordinarily requires) that the disk
holds the document for which the government is searching. It is instead a generalized, suspicionless search of private spaces by the government.
From the standpoint of the Constitution—the Fourth Amendment in particular—you don’t get any worse than that. The Fourth Amendment was written 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.13 No suspicion was needed before the officer ransacked
your house, but because he had a warrant, you were not able to sue the officer for
trespass. The aim of the amendment was to require at least suspicion, so that theburden of the search fell on a reasonably chosen class.14

18

C O D E

But is the worm real ly the same as the King’s general search? There is one important difference: unlike the victims of the general searches that the framers of ourConstitution were concerned about, the computer user never knows that his 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 is a bit ofcomputer code that does the breaking, and (I’ve assumed) it can see only one thing.
The code can’t read private letters; it doesn’t break down doors; it doesn’t interferewith ordinary life. And the innocent have nothing to fear.
The worm is silent in a way that King George’s troops were not. It searches perfectly and invisibly, discovering only the guilty. It does not burden the innocent; itdoes not trouble the ordinary citizen; it captures only what is outside the protectionof the law.
This difference complicates the constitutional question. The worm’s behavior islike a generalized search in that it is a search without suspicion, but it is unlike theparadigm case of a generalized search in that it creates no disruption of ordinary lifeand finds only contraband. In this way, the worm is like a dog sniff—which at leastat airports is constitutionally permissible without probable cause15—but better. Unlike the dog sniff, the worm doesn’t even let the computer user know when there isa search (and hence the user suffers no anxiety).
Is the worm,then, constitutional? That depends on your conception of what the
Fourth Amendment protects. On one view, the amendment protects against suspicionless governmental invasions, whether those invasions are burdensome or not.
On a second view, the amendment protects against invasions that are burdensome,allowing only those for which there is adequate suspicion that guilt will be uncovered. The paradigm case cited by the framers does not distinguish between these twovery different protections. It is we, instead, who must choose.
Let’s take the example one step further. Imagine that the worm does not simply
search every machine it encounters but can be put on a machine only with judicial
authorization—say, a warrant. Now the suspicionless-search part of the problem has
been removed. But imagine a second part:the government requires that networks beconstructed so that a worm, with judicial authorization, could be placed on a machine. Machines in this regime must be worm-ready, even though worms will be deployed only with judicial war rant.
Is there any constitutional problem with this? I explore this question in muchgreater detail in chapter 11, but for now, notice its salient feature. In both cases, weare describing a regime that allows the government to collect data about us in ahighly efficient manner, that is, inexpensively for both the government and the innocent. This efficiency is made possible by technology, which permits searches that
before would have been far too burdensome and far too 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 ofsurveillance? If so, we have much to fear.”16

fo ur puz zl es from cyberspace

19

This question, of course, is not limited to the government. One of the defining
features of modern life is the emergence of technologies that make data collection
and processing extraordinarily efficient. Most of what we do—hence, most of what
we are—is recorded outside our homes. When you make telephone calls, data arerecorded about whom you called, when, how long you spoke, and how frequently
you made such calls.17 When you use your credit cards, data are recorded about
when, where, and from whom you made purchases. When you take a flight, youritinerary is recorded and, probably by the time this book reaches print, profiled by
the government to determine whether you are likely to be a terrorist.18 No doubt
Hollywood’s image—of a world where one person sitting behind a terminal tracks
the life of another—is wrong. But not terribly wrong. It’s not that systems so easil ytrack a single individual. But it is easy to imagine an agency sorting through all thedata the system collects to identify those individuals most likely to be committing
crimes. The intrusiveness is slight, and the payoff great.
Both private and public monitoring, then, have the same salient feature: monitoring, or searching, can increase without increasing the burden on the individual
searched. How should we think about this change? How should the protection theframers gave us be applied?

T H E M E S

Four stories, four themes, each a window onto one aspect of cyberspace that will
be central in all that fo ll ows . My aim in the balance of this book is to workthrough the issues raised by these four themes. So then let me end this chapter
with a map of the four, laid out in the order of the book. That order begins withstory number two.
R e g u l a b i l i t yRegulability means the capacity of a government to regulate behavior within its
proper reach. In the context of the Internet, that means the ability of the government to regulate the behavior of its citizens (and perhaps others as well) on the Net.
My second story, about gambling in Boral, was thus about regulability, or more
specifically, about the changes in regulability that cyberspace brings. Before the Internet, it was relatively easy for the attorney general of Boral to control gambling
within her jurisdiction; after the Internet, when the servers moved outside of Boral,
regulation became much more difficult.
For the regulator, this story captures the problem that cyberspace presents generally. The architecture of cyberspace makes regulating behavior difficult, because
those whose behavior you’re trying to control could be located in any place (meaning outside of your place) on the Net. Who someone is, where he is,and whether law
can be exercised over him there—all these are questions that government must an-

20

C O D Eswer if it is to impose its will. But these questions are made impossibly difficult by
the architecture of the space—at least as it was.
The balance of part 1 is about this question of regulability. I ask whether “unregulability” is necessary. Can we imagine a more regulable cyberspace? And is thisthe cyberspace we are coming to know?
Re gu lat io nb y

C o deThe story about Avatar space is a clue to answering the question about regulability.
If in Avatar space we can change the laws of nature—making possible what before
was impossible, or making impossible what before was possible—why can’t wechange regulability in cyberspace? Why can’t we imagine a cyberspace where behavior can be controlled?
For this, importantly, is just what Avatar space was. Avatar space is “regulated,”though the regulation is special. In Avatar space regulation came through code. The
rules in Avatar space are imposed, not through sanctions, and not by the state, butby the very architecture of the particular space. A law is defined, not through astatute, but through the code that governs the space.
This is the second theme of this book: there is regulation of behavior in cyberspace, but that regulation is imposed primarily through code. What distinguishes
different parts of cyberspace are the differences in the regulations effected throughcode. In some places life is fairly free, in other places controlled, and the difference
between them is simply a difference in the architectures of control—that is, a difference in code.
If we combine the first two themes, we come to a central argument of the book:the regulability described by the first theme depends on the code described in thesecond. Some architectures of cyberspace are more regulable than others; some architectures enable b etter control than others. Thus, whether a part of cyberspace—or cyberspace generally—can be regulated turns on the nature of its code. Itsarchitecture will affect whether behavior can be controlled. To follow Mitch Kapor,
its architecture is its politics. 19
And from this an important point follows: if some architectures are more regulable than others—if some give government more control than others—then governments should favor some architectures more than others, if regulability is thegovernment’s aim.
This fact is a threat to those who worry about governmental power; it is a reality
for those who would do something about governmental power. Some designs enable
government more than others; some designs enable government differently; somedesigns should be chosen over others.
It is here that questions of open source software matter. Among the designs thatenable or disable government’s power to regulate, open code will hold an important
place. It will check,as I argue more extensively later, the top-down power of government while enabling an extremely effective scope for bottom-up control.

four puz zl es fro m cy berspace

21

To restate theme two: the code is a regulator, and the government has a greaterinterest in the code that regulates better than others.
Co mp et i ng

Sov er ei g n s

But regulation by whom? Boral was just one state. Its problems were not the problems of its neighbors. And the rules we live by while in Boral, or while in a particular Avatar space, need not be the rules that we live by generally.
This was the issue raised most importantly by Jake Baker. His story raises thequestion of competing authority. Jake lived in Ann Arbor, Michigan. His life there
was subject to the norms of Ann Arbor, and he 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 norms changed. When Jake went to cyberspace, his behavior changed. He was governed there by a set of norms different from the norms
that governed him in Ann Arbor.
The problem was that when he went to cyberspace,he never left Ann Arbor.“Going” in cyberspace functions differently from “going” in real space. When you “go”
somewhere in real space, you leave; when you “go” to cyberspace, you don’t leaveanywhere. You are never just in cyberspace; you never just go there. You are always
both in real space and in cyberspace at the same time.
And so too with Jake. While sitting in a dorm at the University of Michigan, he
was able to teleport himself—in the only normatively significant sense—to a different world where the norms of civility and decency that governed outside his dorm
room did not obtain. 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 Jake and gave him the chance to select between these competing authorities
merely by switching his computer on or off.
Again, my point is not that no similar possibility exists in real space—it plainly
does. There is no doubt a Jake living in Hackensack, New Jersey (a suburban townwith suburban values), who drives every night into lower Manhattan and lives for a
few hours according to the “rules” of lower Manhattan. Those rules are not the rulesof Hackensack; that life is different. Like Ann Arbor Jake, the Hackensack Jake lives
under competing authorities. But between the lives of these two Jakes, there is a difference in degree that ripens into a difference in kind. The Ann Arbor Jake raises amore significant problem for Ann Arbor than the Hackensack Jake raises for Hackensack. The differences are greater, and the effect more pervasive.
Nor should we think too narrowly about the competing normative communities
into which a Jake might move. The valences here are both positive and negative. It isescape when a gay teen in Iowa can leave the norms of Iowa through a gay chat roomon America Online;20 it is escape when a child predator escapes the norms of ordinary society and engages a child in online sex.21 Both escapes are enabled by the architecture of cyberspace as we now know it.

22

C O D EThe difference between these two escapes is our view about the underlying
norm.I call the first escape liberating, and the second criminal. There are some who
would call both escapes criminal, and some who would call both liberating. The
question isn’t about name-calling, but about the consequences of living in a world
where we can occupy both sorts of space at the same time. Which sovereign should
govern?
La ten t

Am big u ity

The worm tells a different story still. Though it is a technology for searching, theworm functions differently from searching in the ordinary case. The ordinary orparadigm case is a search that carries costs: the burdens of the search, the insecurities it might create,the exposure it might make possible to invasions beyond a legitimate reach.22 The worm erases those costs: the burden is gone, the search is(practically) invisible, and the searching technology is programmed to find only
what is illegal. This is a search without the ordinary costs of a search, and it raises aquestion about how such a search should, under the Constitution, be understood.
A fair view of the Constitution’s protections could go in either of two ways. It
may be that we see the worm’s invasion as inconsistent with the dignity that theamendment was written to protect,23 or it may be that we see the invasion of theworm as so unobtrusive as to be reasonable. The answer could be either, whichmeans that the change reveals a latent ambiguity in the original constitutional value.
Either answer is possible, so now we must choose one or the other.
You may not buy my story of the worm. You may think it is pure science fiction.
By the end of the book, however, I will convince you that there are any number ofcases 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—that is, in light of the choices that theframers actually made.
For Americans, this ambiguity creates a problem. If we lived in an era whencourts felt entitled to select the answer that in the context made the most sense,
there would be no problem. Latent ambiguities would be answered by choices madeby judges—the framers could have gone either way, but we choose to go this way.
But we don’t live in such an era, and so we don’t have a way for courts to resolvethese ambiguities. As a result, we must rely on other institutions. My claim, a darkone, is that we have no such institutions. If our ways don’t change, our constitution
in cyberspace will be a thinner and thinner regime.
Cyberspace will present us with ambiguities over and over again. It will press thisquestion of how best to go on. We have tools from real space that will help resolve
the interpretive questions by pointing us in one direction or another, at least someof the time. But in the end the tools will guide us even less than they do in real space
and time. When the gap between their guidance and what we do becomes obvious,four puz zl es fro m cy berspace23

we will be forced to do something we’re not very good at doing—deciding what wewant,and what is right.
My aim is not to lament choice. It is to highlight its nature and effect, as well as
an aspect of the transformation that we can expect this transformation in technology to create—one with which we, uniquely, are unable to reckon.
My aim is to use these four themes to understand cyberspace as it is,and cyberspaceas I believe it is becoming as it moves from a world of relative freedom to a world of
relatively perfect control. These themes will help us to see why and to understand
how we might respond to this transformation—how we might reclaim the values
that are important in this space, and how we might insist on bringing to it values
that are now absent.

T H R E E
i s - i s m

The rise of an electronic medium that disregards geographical boundaries
throws the law into disarray by c reating 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 Post,“Law and Borders—The Rise of Law inCyberspace,” Stanford Law Review 48 (1996): 1367, 1375
Some things never change about governing the Web. Most prominent is its
innate ability to resist governance in almost any form.
Tom Steinert-Threlkeld, “Of Governance and Technology,”
Inter@ctive WeekOnline, October 2,1998

Th er e’s a meme about cyber space t h at mar ks nat ives f r om it s fi r st g ener a tions—an idea that defines first-generation thought about the place. Cyberspace, it
is said, cannot be regulated. It “cannot be governed”; its “innate ability” is to resist
regulation. That is its nature, its essence, the way things are. Not that cyberspacecannot be broken, or that g overnment cannot shut it down. But if cyberspace exists,
so first-generation thinking goes, government’s power over behavior there is quite
limited. In its essence, cyberspace is a space of no control.
Nature. Essence. Innate. The way things are. This kind of rhetoric should raisesuspicions 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 rhe toric of “essence” hides this constructedness. It
misleads our intuitions in dangerous ways.

is-ism

25

This is the fallacy of “is-ism”—to confuse how something is with how it must be.
There is certainly a way that cyberspace is. That much is true. But how cyberspace isis not how cyberspace has to be. There is no single way that the Net has to be; no single architecture 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 thosedifferent architectures is diverse.
The next few chapters extend this point. But the argument can be summarized ina single line: whether the Net is unregulable depends, and it depends on its architec ture.1
With some architectures, behavior on the Net cannot easily be controlled; withothers it can. With some it cannot be controlled through top-down regulation; withothers it can. Among the many possible architectures that the Net might have, theaim of this part is to argue that it is evolving in a very particular direction: from an
unregulable space to one that is highly regulable. The “nature” of the Net might once
have been its unregulability; that “nature” is about to flip.
To see the flip, you must fi rst see a contrast between two different cyber-places.
The contrast is a clue about how the Net could be made more regulable.
I don’t mean the descriptions that follow to be technical; I don’t offer them ascomplete definitions of types of networks, or types of control. I offer them to illustrate—to sketch enough to see a far more general point.

C Y B E R - P L A C E S :H A R V A R D

V E R S U S

C H I C A G O

The Internet was born at universities in the United States. Its first subscribers wereresearchers, but as a form of life, its birth was its link to the university and university life. It swept students online, pulling them away from a very different life
in real space. The Net was a legal intoxicant of college campuses in the mid-1990s.
As the New York Times columnist J. C. Herz wrote in her first book about cyberspace:
When I look up, it’s fo u r- t h i rty in the morning. “No way.” I look from theclock to my 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 a disheveled heap of textbooks, photocopied arti cl e s , hilighters and notes into my backpack and run like a madwoman up the concrete steps, past the sec u ri ty guard, and outside into thepredawn 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 thephone lines, all day and all night long. It’s right under our noses and it’s invis-

26

C O D E

ible. It’s like Narnia, or Magritte, or Star Trek, an entire goddamned world. Except it doesn’t physically exist. It’s just the collective consciousness of however
many people are on it.
This really is outstandingly weird.2

But not all universities adopted the Net in the same way. The access they granted
was not the same;the rules they imposed were different.One example of this difference comes from two places I know quite well, though many other examples could
make the same point.
At the University of Chicago, if you wanted access to the Internet, you simply
connected your machine to jacks located throughout the university.3 Any machinewith an Ethernet connection could be plugged into these jacks. Once connected,
your machine had 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 Provost,
Geoffrey Stone, a former dean of the law school and a prominent free speechscholar. When the university was designing its net, the technicians asked Stone
whether anonymous communication should be permitted. Stone, citing the principle that the rules regulating speech at the university should be as protective of freespeech as the First Amendment, said yes: people should have the right to communicate at the university anonymously, because the First Amendment to the Constitution guarantees the same right vis-à-vis governments.4 From that policy decision
flowed the architecture of the University of Chicago’s net.
At Harvard the rules are different. If you plug your machine into an Ethernet jack at
the Harvard Law School, you will not gain access to the Net. You cannot connect yourmachine to the net at Harvard unless the machine is registered—licensed, approved,
verified .O n ly members of the university community can register their machines.Once
registered ,a ll interactions with the network are monitored and identified to a particular machine; the user agreement carries a warning about this practice. Anonymous
speech on this net is not permitted—it is against the rules. Access can be controlled
based on who 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 thanGeoffrey Stone on the protections of the First Amendment. Controlling access was theideal at Harvard; facilitating access was the ideal at Chicago. Harvard chose technologies that make control possible, while Chicago chose technologies that facilitate access.
These two networks differ in at least two important ways. First and most obviously, they differ in the values they embrace.5 This difference is by design. At the
University of Chicago, First Amendment values determined network design. Different values determined Harvard’s design.
But the two networks differ in a second way as well. Because access is controlled
at Harvard and identity is known, actions can be traced back to their root in the network. In the Chicago network the identity and actions of users cannot be known.
Monitoring, tracking, or following behavior at Chicago is harder than it is at Har-

is-ism

27

vard. Behavior in the Harvard network is more controllable than behavior in the
University of Chicago network.
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 thesoftware. Regulability is not determined by the essential nature of these networks. It
is determined instead by their architecture.
These two networks are just two points on a spectrum of possible network design. At one extreme we might place the Internet—a network defined by a suite ofprotocols that are open and nonproprietary and that require no personal identification to be accessed and used. (I describe this architecture more extensively in chapter 4.) At the other extreme are traditional closed, proprietary networks, which grant
access only to those with express authorization; control, therefore, is tight. In between are networks that mix elements of both the Harvard network and networks
that are Internet-open and generally accessible but that build on top of this open
protocol architectures that enable some degree of control. These mixed networks
add control to the Internet; they layer elements of control on top.
It is the middle kind of network that I focus on here. The network at the University of Chicago is the model of the Internet in, say, 1995—let’s call it Net95. The
second is the model of any number of closed networks that both predate the Internet and still exist today—for example, the ATM network, which makes it possible toget cash at 2:00 A.M. in Bogotá. The third—the middle type, the Harvard architecture—adds something to Net95. It layers on top of the Internet suite code that enables more control.6 The code of this network is not inconsistent with theunderlying protocols of the Internet. It is still based, in the language of the engineers, in “TCP/IP,” the name for the suite of protocols that define the Internet (seechapter 4). But it adds to this suite a set of protocols that facilitate further control.
The Harvard network is the Internet-plus, where the “plus” adds the means of control. (Though here the control lies only in knowing who a user is, not in knowing
what content he or she is trafficking.)
All three designs are com mu n i c a ti on networks that are “like” the Intern et .
They raise a question: When we say that the Internet is “unregulable,” which network are we describing? And if we pick an unregulable network, just why is it unregulable? What features about its design make it so? And could those features be
different?
My point in aligning the three should be obvious. If some networks are moreregulable than others, this is simply a function of the network’s design. The designof an unregulable network could be changed; it could be transformed into a regulable network. The key is to identify the features of the unregulable space and to imagine them changed to make the space more regulable.
Consider three features of Net95’s design that make it hard for a regulator tocontrol behavior there. From the perspective of the regulator, these features are “imperfections”—they limit the data that the Net collects, either about the user or about
the material he or she is using.

28

C O D EThe first imperfection is information about users—in a word, credentials. Net95
has no way to verify who someone is, or more important, to verify features or attributes of the “someone” using the Net. Indeed, there is no way to verify that it is a“someone” at all. In the words of the famous New Yorker cartoon of two dogs sittingin front of a PC,“On the Internet,nobody knows you’re a dog.”7 You can use the Net
anonymously. You could build a (ro)bot to use the Net. No one need know yourname, and there is no easy way to verify your age, your sex, or where you live. The
Net knows only as much as you choose to tell, and it cannot even verify that inf ormation.
The second imperfection is information about the data—the labels or, as
Nicholas Negroponte put it, the “headers.”8 Just as we have no system for obtaining
verifiable information about the attributes of users, we have no system for obtaining
verifiable information about the data on the Net.Data are out there—search engines
report them to us—but there is no consistent or uniform way to know what theyare. Pictures of flesh come across a screen, but the system cannot tell whether the
pictures are medical photos or pornography. Data about bodily functions comeacross the wire, but the system cannot tell whether the data are from medical records
or a novel. Nothing puts the bits into context, at least not in a way that a machine
can use. Net95 had no requirement that data be labeled. “Packets” of data are labeled, in the sense of having an address. But beyond that, the packets could containanything at all.
The final imperfection ties the first two together: because there is no simple way
either to know who someone is or to classify data,there is no simple way to make access to data depend on who the user is and on the data he or she wants access to. Ina word, there is no simple way to zone cyberspace.9 In real space we have all sorts ofzonings. Children cannot enter bars, men cannot enter women’s bathrooms, thebadly dressed cannot enter a trendy club. In countless ways we make access to spaces
depend on who someone is. But in the cyberspace of Net95, because we cannot
know the credentials of the user or the nature of the data, we cannot easily condition access on the credentials or the data.
These imperfections make regulating the Net difficult. But from the perspectiveof the anarchist,the libertarian, or the lover of the Net as it was,they are not imperfections at all. They are features. They do not disable something important from the
Net as it was; they enable something important about the Net as it was—liberty.
They are virtues of a space where control is limited, and they help constitute thatspace. The constitution of Net95 is unregulability; these features of its code make itso.
But Harvard shows the regulator how the “bugs” in Net95 might be eliminated.
The Net could know the credentials of the user and the nature of the data and stillbe “the Net.” The choice is not only between the Internet and a closed proprietary
network. Harvard suggests a middle way. Control could be layered onto the platformof the Internet. Architectures of control could be layered on top of the Net to “correct”

is-ism29

or eliminate “imperfections” of control. Architectures of credentials and architectures that label could, in other words, facilitate architectures of control.10
That is the first, and very small, claim of this early chapter in a story about
emerging control: architectures of control are possible; they could be added to theInternet that we know.
But nothing yet shows how. What would g et us from the relatively unregulable
libertarian Net to a highly regulable Net of control?
This is the question for the balance of part 1. I move in two steps. In chapter 4,
my claim is that even without the government’s help, we will see the Net move to anarchitecture of control. In chapter 5, I sketch how government might help. The
trends promise a highly regulable Net—not the libertarian’s utopia,not the Net yourfather (or more likely your daughter or son) knew, but a Net whose essence is thecharacter of control.
A Net, in other words, that flips the Internet as it was.

F O U R
a rch itec tu resofcont rolMy aim in t h e l ast ch apt er was t o cr ack one meme about t h e nat ur e of t h e
Net—that the Net has a nature, and that its nature is liberty. I argued instead thatthe nature of the Net is set in part by its architectures, and that the possible architectures of cyberspace are many. The values that these architectures embed are different, and one type of difference is regulability—a difference in the ability tocontrol behavior within a particular cyberspace. Some architectures make behavior
more regulable; other architectures make behavior less regulable. These architectures are displacing architectures of liberty.
This chapter suggests how and why. In a nutshell: the why is commerce, and the
how is through architectures that enable identification to enable commerce. As the
Net is being remade to fit the demands of commerce, architectures are being added
to make it serve commerce more efficiently. Regulability will be a by-product ofthese changes. Or put differently, the changes that make commerce possible are alsochanges that will make regulation easy.
I don’t pick out commerce to pick on commerce. My argument is not that commerce is the enemy, nor that there is any necessary connection between commerceand regulability.1 There is no doubt that commerce will flourish in the future of theInternet, and no doubt that is a good thing. The presence of commerce in the Net’s
future,however, does not mean that the Net of the future will be the same as the Netof the past. Commerce will change the Net,and my aim in this chapter is to help us
understand how.

I D E N T I T Y
R E A LA N D

A U T H E N T I C A T I O N :S P A C E

By “identity” I mean something more than just who you are. I mean all the facts
about you that are true as well. Your identity, in this sense, includes your name, yourarchitectures of control

31

sex, where you live, what your education is, your driver’s license number, your social
security number, your purchases on Amazon.com, whether you’re a lawyer—and soon.
“Authentication” is the process by which aspects of your identity become known.
Some become known when you reveal them; others become known whether you
choose to reveal them or not. Perfect authentication would mean that others know
for certain all the facts about you; happiness comes from others knowing a gooddeal less.
In real space much about your identity is revealed whether you want it revealed
or not. Many of the facts about you, that is, are automatically asserted and selfauthenticating. This is a fact about real-space life. If I walk into a bank, the teller willknow a lot about me even if I don’t say a thing: he will know I’m a puffy, middleaged white guy with glasses and blondish hair; he will know I’m not big and notstrong, though I am somewhat tall. He will know all this whether I want to tell him
or not.I could, in principle, try to hide some of these facts—I could put on a mask,
walk on stilts,and try to enter the bank incognito. But ifI did,I would be more likely
to get tackled by a security guard than to hide any feature about myself. Hiding usually does not hide itself very well; usually we reveal that we are hiding.
Other facts about me, however, are not automatically asserted or automatically
self-authenticating. Some facts you can learn only if I tell you (“I broke my leg when
I was six”); some you cannot authenticate without resorting to some other source—
credentials. The police officer wants a driver’s license,not your word that you are authorized to drive. A law school wants a copy of your college transcript, not a lett er
from you telling them that you graduated at the top of your class.A bank wants thedeed on your house,not just a promise that you will repay the mortgage. In all thesecases, facts about you must be authenticated by a d ocument, and hence by an institution that stands behind the document.
Real-space life thus carries with it this mix of authenticating and authenticatedcredentials. Social life is a constant negotiation between these different credentials. In a small town, in a quieter time, documents as credentials were not terribly
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. As life
becomes more anonymous, social institutions must construct credentials to authenticate facts about you that in an earlier time, or in a smaller social world,
would have been authenticated by the knowledge of the community about who
you are.
The point may be obvious: the regulability of real-space life depends on these
credentials. The fact that witnesses can identify who committed a crime, either because they know the person or because of self-authenticating features such as “hewas a white male, six feet tall,” enhances the ability of the state to regulate againstthat crime. If criminals were invisible or witnesses had no memory, crime would increase. The fact that fingerprints are hard to change and can now be traced to convicted felons increases the likelihood that felons will be caught again. Relying on a

32

C O D E

more changeable physical characteristic would reduce the ability of the police totrack repeat offenders. The fact that cars have license plates and are registered bytheir owners increases the likelihood that a hit-and-run driver will be caught. Without licenses,and without systems registering owners, it would be extremely difficult
to track car-related crime. In all these cases,and in many more, features of real-spacelife make regulating real-space life possible.
The state, as one regulator, thus depends on these features being as they are. Often the state will intervene, either to ensure that these credentials remain usable ascredentials2 or to substitute new credentials when an earlier credential becomes useless. The state punishes counterfeiters of state documents as a way o f increasing thereliability of state documents. The state issues other credentials (driver’s licenses) toincrease the reliability of its verification.
This, then, is the nature of real-space regulation: much about who we are is revealed, and we have built institutions that can credential what cannot authenticallybe revealed. Both social life and state regulation depend on this mix. And both reactas elements within this mix change.

I D E N T I T Y

A N D

A U T H E N T I C A T I O N :C Y B E R S P A C E

Identity and authentication in cyberspace are different. The Internet is built on asimple suite of protocols—the basic TCP/IP suite. The TCP/IP suite includes protocols for exchanging packets of data between two machines “on” the Net.3 (I explore
this idea in greater detail in chapter 8. For now, think of the packets as small packages of information wrapped in an envelope with an address stamped on the outside.) To exchange these packets, the system needs at least two bits of data—theaddress of the machine from which the data are being sent, and the address of themachine to which the data are being sent. These are called Internet protocol (IP) addresses. They look like this: 128.34.35.204. Simplified brutally, a packet of data iscarried “to” and “from” these addresses as it works its way across the Internet.
These protocols, however, reveal nothing about the user of the Internet, andvery little about the data being exchanged. Although the IP address is sufficient tomove the data from one machine to another, it has no necessary connection to any
physical unit in the worl d . IP ad d resses are vi rtual ad d re s s e s ; the vi rtual canchange. Nor do the IP protocols tell us much about the data being sent. In particular, they do not tell us who sent the data, from where the data were sent, to where(geographically) the data are going, for what purpose the data are going there, or
what kind of data they are. None of this is known by the system, or knowable byus simply by looking at the data. From the perspective of the network, this otherinformation is unnecessary surplus. Like a daydreaming postal worker, the network simply moves the data and leaves interpretation of the data to the applications at either end.

architectures of control

33This minimalism in design is intentional. It reflects both a political decision
about disabling control and a technological decision about the optimal network design. The designers were not interested in advancing social control; they were concerned with network efficiency. Thus,this design pushes complexity out of the basic
Internet protocols, leaving it to the applications, or ends, to incorporate any sophistication that a par ticular service may require.4
When this basic protocol is translated into Internet access—when, for instance,
you are browsing a web page—this minimal identification means that the server delivering the web page knows nothing about you from the Internet protocol itself. (Wewill consider later how it does learn things about you from other applications that
sit on top of the Internet protocol.) The web server simply knows that you are located on the Internet at an IP address, and that you are coming onto the Net with a
TCP/IP-compliant protocol.
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 know and fromplaces you cannot identify. The system knows that there are entities out there interacting with it, but it knows nothing about who those entities are. Whereas in real
space—and here is the important point—anonymity has to be created, in cyberspace anonymity is the g iven.

I D E N T I T Y

A N D

A U T H E N T I C A T I O N :R E G U L A B I L I T YThis difference between the architectures of identity in real space and in cyberspace
has profound consequences for the regulability of behavior in cyberspace. If regulation hangs upon identity—that is, on knowing at least something about the person
being regulated—then in cyberspace, under TCP/IP’s design, there is very little thatthe regulator would necessarily know. Unlike real space, cyberspace reveals no selfauthenticating facts about identity. In real space you reveal your sex, your age, how
you look, what language you speak, whether you can see, whether you can hear, howintelligent you are. In cyberspace you reveal only an address, and one that has nonecessary relationship to anything else about you.
The absence of self-authenticating facts in cyberspace reduces its regulability. If
a state, for example, wants to regulate obscenity or control children’s access to “indecent” speech, the Internet architecture provides no help. Both data and people areunidentified in this world, and while it is often possible to make good guesses, it isalso easy to make good guesses impossible. With the Internet architecture of Net95,
it is easy to hide who you are. Perhaps more important, it is difficult to assert facts
about your identity in a credible way. On the Internet it is both easy to hide that you
are a dog and hard to prove that you are not.
All this is true under one architecture of the Internet. Claims about the difference between real space and cyberspace depend on this difference in design. The les-34

C O D Eson of the last chapter, however, was that architectures could be different. We could
imagine different architectures that would better help us identify who individuals
are and authenticate other facts about them.
In the balance of this chapter, I want to introduce one such architecture. I willconsider questions—about its use or justification, its possible threats to privacy oranonymity, or the likelihood of its becoming a dominant architecture—in later
chapters. My aim here is to convince you that there are such architectures and to
sketch the regulability that such an architecture would permit.

A R C H I T E C T U R E SO FI D E N T I F I C A T I O N

How then could we layer architectures of iden ti ty onto the existing iden ti ty ignorant architectures of TCP/IP?5
Consider three common techniques used today to id entify someone on the Internet. There are others,and the description of these three will not be complete. But
a sketch of these three reveals two features of a “pass-technology”that will be central
to the architectures of identification that the Net is now building.
The first technique is a password. You have an account on a system; the accounthas your account name and password; when you access the system, you must provide both bits of information. The combination is what verifies that you are authorized to use the system.
There are any number of examples of identification of this sort. America Online(AOL) is a well-known one. You must type in a password associated with a particular “screen name” before you can enter AOL. Lexis—a provider of online legal resources—is a second, though Lexis requires only a single password (not an accountname as well) to enter. Uses of the database are then charged to that password.
A password system has well-known advantages and disadvantages. The main advantage is its security—at least as long as the user keeps his or her password secret. The
disadvantage is cost and the inconvenience of continually using passwords to movefrom one space to another.6 If every site on the Net required some sort of password,
then surfing would be as tedious as crossing Manhattan during Friday rush hour.
A second, and much cruder system avoids this inconvenience. This system uses
verification through a “cookie”—a small entry made by your browser to a “cookie
file” on your hard disk that allows a site to know who you are.7 When you first purchase a book from Amazon.com and establish an account, for example,
Amazon.com’s server places an entry in your cookie file. When you return to thatsite, your browser sends the cookie along with the request for the site; the server canthen set your preferences according to your account. Amazon.com can recommend
books for you to buy, given the pattern of purchases you have made before.
The main advantage in this system is its seamless verification. Unless you haveyour browser set to notify you of cookie exchanges, you can surf through sites that
deposit and consume cookies with little interruption.

architectures of control

35

The disadvantage is the danger that your cookie file could be manipulated oreven copied to other systems.8 It could also provide a key with which providers canlearn about you. If a common cookie identifies you across a number of sites (because these sites have subscribed, for example, to a common tracking system), then,in principle,if you have revealed information about yourself in one of those places,
the other places could know it as well.
Cookies are less secure than passwords, though of course they are doing something very different. This difference does not mean they are useless. The security weneed is a function of the risk we are protecting against. Certainly, the NSA should
not use cookies as the system for granting access to databanks of national secrets.
But there is no reason why a portal site like Yahoo should not use cookies to figureout who you are and to give you the news that you have previously selected. You
have little incentive to lie about this; Yahoo! has little reason to care if you do. Withso little at stake, an unobtrusive if insecure system is perfectly adequate.
A third technology would marry the benefits of the first two. This is the technology of digital signatures, which enables digital certificates, a kind of passport on theInternet. They would authenticate any t ype of information about a ma chine and, if
unlocked by a pass-phrase or biometric device, about you—your name, your citizenship, your age, whether you are a lawyer. While the details of the architecture aremany, suffice it for now to define them as encr ypted digital objects that can be used
to authenticate facts about someone.
Digital certificates would reside on your computer (under at least some designs);
a server would automatically (and invisibly) check the certificate as you entered thesite. If you held the right certificate, you would be let in,and as you were let in, theserver would then “know”the certified facts about you. It would “know,” that is,that
you were a man, or that you came from Canada, or that you were over the age oftwenty-five. And it could do or know all this without ever asking you anything at all.
Certificates could become the kind of self-authenticating credential that we know inreal space, but unlike in real space,there would be no limit to the facts the certificate
could certify.
Digital certificates would make possible a secure system of identification that
could operate as seamlessly as cookies but with much more data certified. They rely,
however, on technologies of cryptography. To see how, we must take a detour into
the workings of cryptography, and then consider again how this technology could
be molded to the form of identification.

C R Y P T O G R A P H Y :V E R S U S

C O N F I D E N T I A L I T Y

A U T H E N T I C A T I O NHere is something that will sound very extreme but is at most,I think, a slight exaggera ti on : encryption technologies are the most important technological breakthrough in the last one thousand years. No other technological discovery—from36

C O D E

nuclear weapons (I hope) to the Internet—will have a more significant impact onsocial and political life. Cryptography will change everything.
I say this not because I have the space in this book, or ability in any case, to prove
this claim to you.I say this to emphasize. It’s not important that you understand theunderlying technologies, though it would be great if more people did. What is important is that you get a hint of the purposes to which these technologies can beturned,and the consequences of their power.
Cryptography is Janus-faced: it has an ambiguous relationship to freedom on theInternet. As Stewart Baker and Paul Hurst put it, cryptography “surely is the best oftechnologies and the worst of technologies. It will stop crimes and it will create newcrimes. 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.”9
Cryptography can be all these things, both good and bad, because encryption
can serve two fundamentally different ends. In its “confidentiality”function it can be“used to keep communications secret.” In its “identification” function it can be “usedto provide forgery-proof digital identities.”10 It thus enables freedom from regulation (as it enhances confidentiality), but it can also enable regulation (as it enhances
identification).11
Its traditional use is secrets. Encrypt a message, and only those with the proper
key can open and read it. This type of encryption has been around as long as language itself. But until the mid-1970s it suffered from an important weakness: thesame 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 rendered vulnerable. If
a large number of messages were encrypted with the same key, losing the key compromised the whole archive of secrets protected by the key. This risk was significant.
You always had to “transport” the key needed to unlock the message,and inherent inthat transport was the risk that the key would be lost.
In the mid-1970s, however, a breakthrough in encryption technique was announced by two computer scientists, Whitfield Diffie and Martin Hellman.12 Rather
than relying on a single key, the Diffie-Hellman system used 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.
This discovery was the clue to an architecture that could build an extraordinary
range of confidence into any network, whether or not the physical network itself wassecure. Even if the wires are tapped, this type of encryption still achieves its magic.
We can get a hint o f how in a series of cases whose accumulating impact makes thepotential 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 knowing that only the holder of the private key (presumably you) will be able to read it. But you cannot be sure it is I who sent you
the message. Because anyone can encrypt a message using your public key andarchitectures of control

37

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 canfirst 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 second decryption,
you can be sure that only you (or other holders of your private key) 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 the public key of Larry Lessig? How can
you be sure, that is, that the public 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 institution), and that third party verifies that the
public key of Larry Lessig is actually the public key of Larry Lessig, thenalong with my message sent to you, encrypted first in your public key andsecond in my private key, would be a certificate, issued by that institution,i t s el f encrypted with the institution’s private key. When you receive themessage, 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 thecertificate (after which you are fairly confident comes from me); and thendecrypt 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 knowthat I am who I say I am and that the message was sent by me; I would knowthat only you read the message; and you would know that no one else readthe message along the way.

I could add any number of complications (for example,how can I be certain thatyou are who you say you are? Clue: the same way you can be certain that I am who
I say I am), and I have hidden a number of important simplifications. For example,
it turns out that it is simpler not to encrypt the whole message with a dual key system but rather to encrypt only a symmetric key13 using a dual key system.14 My aim,
however, is simply to outline the basic elements of this architecture: a system of dualor asymmetric encryption,and a system of trusted third parties that can certify facts
about you. The world I am describing would have both of these elements automatically and seamlessly executed.
The encryption I’ve been describing is called “public key” encryption—again,
because it has two keys, one public, one private, unlike traditional single key encryption. As the last step of this encryption process makes clear, the system depends
on an infrastructure—not an infrastructure of special wires or protected pathways,
but an infrastructure of trust, which can provide not perfect confidence but enough38

C O D Econfidence through the multiplication of assertions about authenticity to make itcertain enough that the fact certified by a particular signature is true.
An infrastructure that supports a public key system is called “PKI” (public key
infrastructure).15 The first point to see is the potential that a well-established PKI
creates. With a robust PKI, the possibilities for identification become extraordinary.
Individuals could carry certificates that authenticate any number of facts about
themselves—who they are; personal attributes (age, citizenship, sex, marital status,
sexual orientation, HIV status); professional credentials (college degrees, bar certification, and so on). These certificates could reside on their personal computers, andwhen they attempted to enter an Internet site, that site would check the certificate
and let them pass if they held the proper certificate. It would deny access if they did
not.A world with a robust PKI would enable an unlimited range of cheap authentication, and hence an unlimited range of zoning—of conditioning access to Internet
sites based on the credentials held by the user.
But only if. Whether such architectures will come to exist is a different question.
Systems close to these are already being developed,though none operate as generally
as I’ve just described. The dominant model of certificates today is id entification—
certificates that verify that you are who you say you are. As described by Verisign,thecurrent leader issuing digital certificates:
Think of Digital IDs as the electronic e quivalent of driver licenses or passportsthat reside in your Internet browser and e-mail software. They contain information that uniquely identifies you, and allow you to: Digitally sign a message soyour recipient knows that a message really came from you.Encrypt a message soyour intended recipient can decrypt and read its contents and attachments.
By digitally signing and encrypting your e-mail you can ensure that your confidential messages and attachments are protected from tampering, impersonation and eavesdropping.16

But verifying a user’s identity is only the first part of the architecture I am describing; any model limited to identity will have limited appeal. Businesses do notreally care that I am able to certify that I am Larry Lessig, and that Larry Lessig
works for Harvard. What they want to know is whether I have the authority to purchase fifty thousand computers for Harvard if they receive from me an order for fifty
thousand computers.Or whether a certain loan officer is authorized to commit to acertain size loan. Or they want to know whether a representative is actually authorized to make a specific commitment.
In short, what is desired is a more flexible system of certification—a system,that
is,that allows people to certify any sort of fact or statement that they would want to
make. So, for example,if I am authorized to purchase computer equipment for Harvard Law School, Harvard Law School would give me a certificate that authenticatesthat fact; someone would in turn certify that the certificate I hold from Harvard Law
School is in fact a certificate from Harvard Law School; and when MicroWarehousearchitectures of control

39

receives an e-mail with an order for fifty thousand computers, it would automatically work through the system of certifications to confirm the order.
This more flexible system is the kernel of an architecture of identity that would
render cyberspace regulable. The architecture would allow you to certify any fact orstatement about yourself to which you could get a third party to attest.17 In p rinciple, you could hold a credential for every aspect of your “identity”—every fact
about yourself that you wanted to authenticate—from your age all the way down to
the grade you got in spelling in the second grade. (As Michael Froomkin suggests,
Lily Tomlin’s joke,“It will be a mark on your permanent record that will follow you
for the rest of your life,” is no longer a joke.)18 Depending on how much you trust
the third party, that certification would allow you (as the skeptical user) to believe
the person making the assertions.
But again, why would we expect this system to develop? What b enefit would it
produce,and who stands to gain from this benefit? I’ve laid responsibility at the footof Internet commerce. What needs of Internet commerce would push us to acertificate-rich architecture?

T H E

C O N T R O L S

F O R

C O M M E R C E

The Internet was built for research,not commerce. (Indeed,until 1991 the National
Science Foundation forbade its use for commerce.)19 Its protocols were open andunsecured;it was not designed to hide.Data transmitted over this net could easily beintercepted and stolen; confidential data could not easily be protected.
Early users did not seem to mind this drawback. If secrecy was important, they
were quite capable of encrypting a message. And for most communication, security
was not important. In this world the ethic was openness, and openness was affordable.
But commerce is not so laid-back. At first, vendors were quite anxious about online transactions;credit card companies initially did not want their numbers used incyberspace—at least, not until cyberspace changed. From the start commerce has
pushed for changes in the architectures of the Net to enable more secure and safer
commerce.
Of course, there is nothing new about this or about commerce on the wires. As
Jane Winn puts it, electronic commerce is “arguably as old as the telegraph.”20 The
1970s saw a vast increase in closed architecture systems that used the wires (either
proprietary or not) to exchange data to facilitate commerce. The significance of therecent birth of e-commerce is that it takes place on an open, unsecured network.21
The challenge for commerce on the early Net was to develop architectures that,while sharing in the network advantages of the Internet,22 would restore some of the
security that commerce requires.
A kind of “open-system” security was needed, and the most successful early example was Netscape’s secure socket layer (SSL) protocol.23 Beginning with NetscapeEnterprise Server 2.0, secure servers could exchange encrypted transactional infor-

40

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mation with Internet browser clients. For example, you could send your credit card
number across the Net, and neither you nor Visa would have to worry that it would
be intercepted and republished.
The great advantage of SSL was its simplicity and economy, benefits it gained bymixing the best of two different encr yption key techniques, symmetric and asymmetric encryption algorithms. The advantage of s ym m etric encryption is efficiency—it is easier for the computer to decrypt using a symmetric key. The
disadvantage is security—you have to pass the symmetric key around, and sometimes it gets lost. The a dvantage of asymmetric, or public key, encryption is security—you do not have to pass around a private key and risk the loss of the key. The
disadvantage is efficiency—it takes a lot of computing power to decrypt an asymmetrically encrypted message.
SSL mixes these two techniques by encrypting the symmetric key asymmetrically.
Once encrypted, the symmetric key is safe to use on an insecure network. But because
a key is relatively small, it is not a terrible computational burden to decrypt it on theother side. By using asymmetric encryption to protect the key, there is no danger thatthe key will be revealed in transmission, but by using a symmetric key to encrypt allother data exchanged, the computational burden on both sides is reduced.
The trouble with SSL, however, is that it is trustworthy only if you can trust themerchant on the other side. Your information is not likely to leak in the transmission from client to server. But if the owner of the server is not to be trusted,then therisk you should worry about is not a leaky pipeline.
Other protocols have been proposed to deal with the problem of the untrustworthy merchant, the most prominent of which is the secure electronic transaction(SET) protocol.24 SET is a standard adopted by a consortium of credit card companies for exchanging credit card data to facilitate greater security, using a protocolthat still simply sits on top of the basic Internet protocol.25 With SET, you can be
confident that your credit card number will not be overheard and that the merchantcannot misuse your number.
These two protocols are just the first steps in constructing an architecture of security for e-commerce. (Though SET may be a misstep: developed by committee,it
is a standard that has proven too complicated to implement effectively.)26 They are
significant improvements, but they do not represent the real change to come. For ecommerce to develop fully, the Net will need a far more general architecture oftrust—an architecture that makes possible secure and private transactions.
The elements of any such architecture are summarized well by Gail L. Grant.27
This architecture would have to provide (1) authentication, to ensure the identity ofthe person you are dealing with;(2) authorization, to ensure that the person is sanctioned for a particular function; (3) privacy, to ensure that others cannot see what
exchanges there are; (4) integrity, to ensure that the transmission is not altered enroute; and (5) nonrepudiation, to ensure that the sender of a message cannot denythat he sent it.

architectures of control

41

In real space we achieve each of these elements through familiar real-space architectures of trust. So familiar have these become that we are likely not only to forget the efforts originally made to erect some of them, but also to ignore the featuresof real space that make these architectures possible. It is usually obvious if an envelope has been opened. If a signature has been changed, we can usually tell. People weknow self-authenticate,since we recognize them when they come into a store. If we
do not know them, we can check a driver’s license or the validity of their credit card.
(Possessing a valid credit card is another kind of self-authentication, though obviously an imperfect one.) We check authorization with structures such as purchaseorders or letters of introduction. We protect privacy by using secure envelopes, andwe protect integrity by checking for evidence of tampering on a letter that has been
received. We use systems of certified exchange (certified mail, guaranteed delivery)
to avoid the problem of repudiation of receipt or sending.
These architectures in real space become invisible to us, but they are obviously
constructs, and just as obviously they are expensive to construct. (This is the difficulty Russia faces now.) If e-commerce is to develop, we must erect equivalent architectures in cyberspace. Commerce will have to develop ways to provide vendors
with sufficient security in online transactions while minimizing the burden of that
security.
Again, the core of any such architecture will be tools of encryption and PKI. The
core would permit the authentication of a digital certificate that verifies facts about
you—your identity, citizenship, sex, age, or the authority you hold. And while we
could erect an architecture of certification today—there are private certificate serversthat we could use to issue certificates covering any conceivable fact—the system
would not support e-commerce until these certificates were part of a general public
key infrastructure that permitted secure and trustworthy communication with anyone on the Net. An architecture that contained all these elements would provide ecommerce with a security greater than the best security in real space. My view is thatonline commerce will not fully develop until such an architecture is established.
There are many plans for deploying this architecture.28 Some imagine the government as the certifying authority; others imagine trusted third parties (like banks)
in that role. Any number of paths are possible. 29 The key to all of these, however, is
not that a government requires people to hold such IDs.30 The key instead is incen tives: systems that build the incentives for individuals voluntarily to hold IDs. Whenarchitectures accommodate users who come with an ID installed and make life difficult for users who refuse to bear an ID, certification will spread quickly.
Cookies have spread in just this way. Because many people are concerned withthe privacy implications of cookies, browsers have enabled users to choose whether
to accept them. With one click, you can disable the deposit of cookies and so preventthe owner of a web site from selling information about you.
But this privacy comes at a cost. Users who choose this option are either unable
to use areas of the Net where cookies are required or forced constantly to choose

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whether a cookie will be deposited. Most find the hassle too great and simply accept
cookies on their machine.
We will see a similar development with digital IDs. Life will be easier for those
who car ry ID than for those who do not. Servers will make exchanges cheaper, or
simpler, if data can be authenticated. Just as it is easier to accept cookies automatically, so too will it be easier to authenticate facts about yourself. Life in an authenticating world will be simpler for those who authenticate.
If the system spreads with incentives, then we can see why commerce is so goodat spreading the system. Commerce has an incentive itself to increase the authentication and certification of transactions in cyberspace. And it is in a good position to
give incentives to consumers. Incentives are commerce’s best tool of regulation, andcommerce is fairly good at deploying them.
Nonetheless, there is room for skepticism. No doubt there will be significant
hurdles for the community to overcome as competitors fix on standards that provide a sufficiently robust yet flexible exchange. No doubt there are lots of reasons towonder whether this infrastructure of security can develop on its own. In my view,
we can see enough to be confident that it is already developing: technologies thatbuild encryption into the background of an application are becoming common;
networks are rapidly integrating digital signatures; and a host of companies (called“certificate authorities”) now provide digital certificates.31
You do not have to believe in the invisible hand to be convinced that this infrastructure of trust is coming. Even if you doubt that private interests alone could
achieve this coordination, another factor suggests that the character of the Net isabout to flip. If commerce alone cannot succeed in establishing these architectures,
government is in a strong position to bring about just the changes that commerceneeds.
The government can help commerce. How it does so is the subject of the chapter that follows.

F I V E
r egu lati ng

cod eI’ve ar gued t h at as t h e Net ch anges t o enabl e commer ce, one by-pr oduct of
this change will be to enable regulation. But let’s say you don’t buy it. Let’s say thatyou don’t believe that the invisible hand acting alone will erect the infrastructure oftrust (and in turn regulation) that I said commerce needed. Let’s say you think thecoordination needed is too great and that market incentives will create more confusion than guidance. If you are right, if commerce on its own does not flip the Net,will the Net remain unregulable?
The answer is no. Commerce does not act alone, and it is not morally opposed topartnerships with government. If commerce needs help constructing this architecture of trust, or (more likely) if the government begins to understand the value of anarchitecture of trust for its own regulatory objective, then government will help
push the code along.
But how? So far I have left standing the assumption that it is impossible for thegovernment to regulate the Net,that there is something in the nature of the Net thatmakes such regulation unworkable. So how is it possible for government to help? If
the Net is unregulable,how could government regulate it to make the Net more regulable?

R E G U L A T I N G

A R C H I T E C T U R E

To see how, we must distinguish between two claims. One is that, given the archi tecture of the Net as it is, it is difficult for government to regulate behavior on theNet. The other is that, given the architecture of the Net, it is difficult for the government to regulate the architecture of the Net. The first claim, I believe, is true.
The second is not. Even if it is hard to regulate behavior given the Net as it is, it is
not hard for the government to take steps to alter, or supplement, the architecture44

C O D Eof the Net. And it is those steps in turn that could make behavior on the Net moreregulable.
This is a regulatory two-step: the Net cannot be regulated now, but if the government regulates the architecture of the Net, it could be regulated in the future.
And when government regulation of the architecture of the Net is tied to thechanges that commerce is already introducing, I argue, the government will need to
do very little to make behavior on the Net highly regulable.
This strategy of regulation is nothing new. From the beginning of the modern
state, government has been regulating to make its regulations work better. My pointis only to apply this commonplace to cyberspace. I want you to see how this old
strategy works here.
I begin the chapter with some examples of regulation working, or not working,in spaces close to cyberspace. Once you see the pattern, you will see how the patternmight be applied elsewhere.
T e l e p h o n e s

The architecture of the telephone network1 has undergone a radical shift as it has
moved from a circuit-switched to a packet-switched network. There is a certain
irony in this change: digital networks were the original design of the Internet. Whenthe first architects of what would become the Internet went to AT&T in the early
1960s for help in building this digital network, AT&T told them that a packetswitched network could not work.2 Indeed, AT&T at first refused to give the designers any help at all, so convinced were they that the design was a waste of time. But
however convinced they were, eventually they changed their minds. Now we have atelephone system that is increasingly like the Internet.
Digital telephone networks work in the same way as the Net. Packets of information are spewed across the system. As with the Internet,nothing ensures that they
will travel in the same way, or along the same path.They take the most efficient path,
which depends on the demand at any one time.
But this creates the problem that the Communications Assistance for Law Enforcement Act of 1994 (CALEA) was designed to solve.3 As telephone networks have
moved from analog to digital, and as switching technologies have moved from central switching to distributed, this change (in the code regulating networks) has had
an important consequence for law enforcement. Because there is no longer a predictable path through which a telephone call will pass, it is no longer an easy matterto tap a phone. Whereas tapping telephones was once relatively simple, it is now
quite difficult.
This is the case at least with one version of the architecture of a digitally switched
telephone network. Other versions would be less difficult to tap. The question that
regulators faced was which version the telephone network should adopt. And thedifference between versions is just a choice of code. Some codes cost more than others, and some codes protect privacy better than others. So the choice among codesregulating code45

becomes a choice among values. Congress asked whether this ch oi ce should besolely private (made by telephone engineers) or partially public (influenced by Congress). It chose the latter.
Of course, regulating the network code is not the only means of regulation that
Congress had. Congress could have compensated for any loss in crime prevention
resulting from the change in the network code by changing the punishments. If achange in network architecture made it more difficult to catch criminals, Congress
could simply increase the threatened punishment or devote more resources to investigation.
This is just what happen ed , Seventh Circuit Court of Appeals Chief Judge
Richard Posner argues, when the Warren Court constitutionalized criminal procedure. To compensate for the increased difficulty in convicting a criminal, Congressradically increased criminal punishments.4 Professor William Stuntz has made asimilar point.5 The Constitution, in this story, acted as an exogenous constraint towhich Congress could adjust. If the protections of the Constitution increased, thenCongress could compensate by increasing punishments.
When the constraint is imposed by code, however, Congress has a more direct
way to respond: it can legislate to change the code. Congress can require that telephone companies adopt a code architecture that makes the network wiretapaccessible.
This is just what CALEA did. No doubt CALEA’s ultimate aim in requiring thisarchitecture is to reduce crime, but it pursues this aim indirectly, by modifying thecode to constrain individuals who might want to engage in crime. Because the government can once again tap when it has authority to tap, digital networks are nolonger as helpful for criminals. Hence, the payoff from crime is reduced.
This is law regulating code. Its indirect effect is to improve law enforcement, but
it does so by modifying code-based constraints on law enforcement. It selects an architecture that distributes the burdens of code in a collectively valued way.6
Regulation like this works because telephone companies are few. It is relatively
easy for the government to verify that the telephone company is complying with its
rules; it would be hard to establish a rogue telephone company (outside the context
of Internet telephony at least). Thus, indirect regulation depends on there b eing a
useful target for regulation. But if there is such a target, and that target can control
the code of the network, then the government can regulate the code.
T ele pho ne s:

P art

2

Four years after Congress enacted CALEA, the FBI petitioned the Federal Communications Commission (FCC) to enhance even further government’s power to regulate. Among the amendments the FBI proposed was a regulation designed to require
disclosure of the locations of individuals using cellular phones. 7
The idea was this. Cellular phone systems, to ensure seamless switching between
transmitters, collect information about the location of a user when she is using a cel-46

C O D E

lular phone. Beyond billing, the phone companies do not need this information for
any other purpose. But the FBI has interests beyond those of the phone service. The
FBI would like that data made available to it whenever it has a “legitimate law enforcement reason” for requesting it. The amendment to CALEA would require thecellular company to provide this information, which is a way of indirectly requiringthat it write its code to make the information retrievable.8
The original motivation for this requirement was simple enough. Emergency
service providers needed a simple way to determine where an emergency cellular
phone call was coming from. But of course, if that were the only purpose of thechange, the system could be designed to report location information only when an
emergency call is made. Instead, the push is to require the collection of this information whenever a call is made.
If it succeeds, then the FBI succeeds by getting Congress to legislate a different
code for cellular phones. If Congress regulates the code, tracking individuals becomes easier, and thus the regulability of those tracked increases.
T a p e s

A compact disc (CD) recording is a digital recording. Like any digital recording, it
can,in principle, be copied perfectly. But before the advent of digital tapes, and thencomputers,there was no medium onto which a digital CD could be perfectly copied.
To copy it onto an audiotape was to make an analog recording of the digital file.
Quality would be lost in the copy.
This imperfection in copying ability was a type of protection for CD producers.
Real-space code, as it were, constrained the ability of copyright thieves to copy CDs
onto tape and sell them as pirated editions. The inferiority of such tapes kept mostof the public in the legitimate CD market.
Digital audio technology (DAT) threatened to change this balance. DAT was theapplication of digital technology to tape: a digital recording on a CD could be digitally, and hence perfectly, copied onto a tape. You could buy one CD and make many
copies of it onto DAT tape,each copy having the same fi delity as the first. The code
governing the copying of audio recordings thus changed, eliminating the old code’s
implicit protections.
Congress could have responded to this change in any number of ways. It could
have used law to regulate behavior directly, by increasing the penalty for illegal copying. It could have funded a public ad campaign against illegal copying or funded
programs in schools to discourage students from buying pirated editions of popular
recordings. Or Congress could have taxed blank tapes and then transferred the revenue to owners of copyrighted material.
Instead, Congress chose to regulate the code of digital reproduction.9 It required
producers of digital recording devices to install in their systems a chip that implements a code-based system to monitor the copies of any copy made on that machine.10 The chip would allow a limited number of personal copies. On copies ofregulating code47

copies,the quality of the recording would be degraded. Congress in essence requiredthat 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 behavior—mandating that multiple copies be imperfect as a way to minimize illegal copying. Like
the telephone regulation, this regulation succeeds because there are relatively few
manufacturers of DAT technology. Again, given a limited target, the government’s
regulation can be effective.
T e l e v i s i o n s

A fourth example is much closer to cyberspace. The Telecommunications Act of1996 required the television industry to develop and implement the “V-chip.”11 The
V-chip would facilitate the automatic blocking of television broadcasts, based on
criteria of content that have not yet been completely determined. The crudest proposals involve something like the Motion Picture Association’s movie rating system;
the more sophisticated envision selections based on a much richer set of factors.
The legislation was passed in response to the perception that violence on television had increased dramatically, and that this increase was harmful to kids. People
were concerned that TV violence would affect behavior. Studies had suggested asmuch; less reflective evidence had confirmed it. Congress sought to discourage theviolence by providing a way to filter it out. 12
Given the state of First Amendment law, it would have been difficult for Congress to restrict violence on TV directly. (Though the regulation of broadcasting has
been subject to special First Amendment rules, 13 and the life of these doctrines now
seems limited.)14 Even if applied only to children’s television, such regulation would
raise difficult constitutional questions—difficult enough, that is, to motivate Congress to seek a different way.
Thus Congress chose code. It required television manufacturers and media
producers to develop a technology to rate what is broadcast on television so thatparents could block what they do not want their children to see. It requires thattelevisions be built with a code that facilitates discrimination by consumers of
television broadcasting. And it does this to advance a social aim of the government: to empower parents. By giving parents more power to discriminate, Congress indirectly discourages an ill (exposure to violence) that it is constitutionallyunable to regulate directly.15
E n c r y p t i o n

The examples so far have involved regulations directed against code writers. But
sometimes the government tries to act indirectly by using the market to regulate thecode. An example is the government’s failed attempt to secure Clipper as the standard for encryption technology.16

48

C O D EI have already sketched the Janus-faced nature of encryption: the same technology enables both confidentiality and identification. The government is concernedwith the confidentiality part. Encryption allows individuals to make their conversations or data exchanges untranslatable except by someone with a key. How untranslatable is a matter of debate,17 but we can put that debate aside for the moment: it is
too untranslatable for the government’s liking. So the government sought to control
the use of encryption technology by getting the Clipper chip accepted as a standard
for encryption.
The mechanics of the Clipper chip are not easily summarized, but its aim is topermit encryption that keeps open a back door for the government.18 A conversation could be encr ypted so that others could not understand it but the government
would have the ability (in most cases with a court order) to decrypt the conversation
using a special key.
The Clinton administration first thought that the best way to ensure the creationof this technology was through direct regulation—by banning all other encryption
technology. This strategy proved controversial, so the government then fixed on adifferent technique.19 It subsidized the development and deployment of the Clipper
chip.
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 useof encryption. The market would do the regulation for the government.20
The subsidy plan failed. Skepticism about the quality of the code itself, andabout 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.
That alternative is for our purposes the more interesting. In the government’s
most recent proposals,the authors of encryption code would be regulated directly—with a requirement that they build into their code a back door through which thegovernment could gain access.21 While the proposals have been various, 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 themarket with an alternative encr yption standard—this mode presents a number ofadvantages.
First,unlike banning the use of encryption, this mode of regulation does not directly interfere with the rights of use by individuals. It therefore is not vulnerable toa strong, if yet unproven constitutional claim that an individual has a right “to speak
through encryption.”22 It aims only to change the mix of encryption technologies
available,not to control directly any particular use by an individual.State regulationof the writing of encryption code is just like state regulation of the design of automobiles: individual use is not regulated. Second, unlike the technique of subsidizing
one market solution,this solution allows the market to compete to provide the bestregulating code49

encryption system, given this regulatory constraint. Finally, unlike both other solutions, this solution involves the regulation of only a relatively small number of actors, since manufacturers of encryption technology are far fewer in number thanusers or buyers of encryption systems.
Like the other examples in this section, then, this solution is an example of thegovernment regulating code directly so as to better regulate behavior indirectly. As
in other examples, the government uses the architecture of the code to reach a particular substantive end. Here the end, as with digital telephony, is to ensure that the
government’s ability to search certain conversations is not blocked by emerging
technology.
C i r c u m v e n t i o n

My final example is the most recent. As I discuss in some d etail in chapter 10, manybusinesses are developing systems for protecting intellectual property in cyberspace.
The problem is the same as with digital audio technology. Copies in cyberspace aredigital and free; digital copies are perfect; free copies are cheap. The fear is that cyberspace will become the place where copyright can be defeated. Using MP3 technologies, for example, a CD recording can be compressed to a file the size of theWord file containing this book and in seconds e-mailed to one hundred friendsaround the world.
The systems being developed in response will make it hard to copy without permission. How hard,and how they will work,are questions we can postpone for now.
Suffice it to say that the systems are designed to give holders of intellectual property
more power over the distribution of that property.
These protections are built into the systems through code. But code can also be
used to circumvent such protections. (Remember the copy protection systems forsoftware common in the early 1980s, and the cracking software used to defeat
them.) Using circumvention software, then, users could defeat the protection thatcode creates.
Congress responded to this threat.23 In the 1998 Digital Millennium CopyrightAct, Congress made it a felony to write and sell software that circumvents copyright
management schemes.24 In the judgment of Congress, regulating users alone would
be difficult but regulating the code that users use would not be as difficult.

C E R T I F I C A T I O N

A N D

R E G U L A B I L I T Y

All six of these examples describe a behavior that the government wants to regulate,
but which it cannot (easily) regulate directly. So government regulates behavior indirectly by regulating architectures, which in turn influence or constrain behavior
differently. This indirect regulation,at times quite effective, suggests a way of thinking about the example that started us down this road—certification.

50

C O D EAt the start of this chapter we asked: What steps could government take, not toregulate a particular behavior, but to increase the regulability of behavior in cyberspace generally? My claim was that this goal could be achieved by increasing the capacity of sites on the Net to identify whom they are dealing with—to know either
who the user is or what credentials, or features, he or she possesses.
Regulability then depends in part on identification—not perfect identification(the police do not need to know my name to tell me to slow my car down), but
enough for the government to know what regulations the user is subject to, andwhen he has violated them.
How can the government facilitate this identification—assuming, of course,thatcommerce has not by itself created a sufficient demand for credentials?
It seems clear from the six examples above that the best target of such regulation
will not be the individual. If the government required all individuals to carry a digital ID, there would no doubt be a revolution. Americans are antsy enough about a national identity card.25 They are not likely to be interested in an Internet identity card.
But it does not follow that government cannot create incentives for people toadopt identification technologies, even without directly mandating them. There is
no requirement that all citizens have a driver’s license, but you would find it very
hard to get around without one, even if you do not drive. The government does not
require that you keep state-issued identification on your p erson, but if you want to
fly to another city, you must show at least one form of such identification. The lesson is simple: make the incentive to carry ID so strong that no government requirement is necessary.
In the same way, the government could create incentives to enable digital 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.
Consider some of the means that the government could employ to achieve this
end:
•

•

Sites on the Net have the ability to condition access based on whether someone car ries the proper credential. The government has the power to requiresites to impose a condition that users carry the proper credentials. For example, the state could require that gambling sites check the age and residency ofanyone trying to use the site. Many sites could be required to check the citizenship of potential users, or any number of other credentials. As more andmore sites complied with this requirement, individuals would have a g reaterand greater incentive to carry the proper credentials. The more credentials
they carried,the easier it would be to impose regulations on them.26
The government could give a $50 tax break to anyone who filed his or her income tax signed by a properly certified authority; it could certify these authorities based on whether they coded certificates in the way the governmentregulating code

•

•
•

51

wanted, and whether they permitted the certificates to be used for purposes
beyond the government’s limited use.
The government could impose a 10 percent Internet sales tax and then exempt anyone who purchased goods with a certificate that authenticated theirstate of residence; the state would then be able to collect whatever local tax
applied when it was informed of the purchase.27
The government could charge users for government publications unless theygained access to the site with a properly authenticated certificate.
As in other Western democracies, the government could mandate voting 28—
and then establish Internet voting; voters would come to the virtual polls
with a digital identity that certified them as registered.

All these alternatives would use the same strategy of indirect regulation thatmarked the original six examples. The state would regulate intermediate providers,enabling those providers to regulate users, who would find their access conditioned
on providing credentials, which make it easier for the state to regulate. The state
would be using the market to regulate individuals, and to make the Net itself moreregulable.
We can extend this model of regulation to the regulation of code itself. The government could require Internet service providers (ISPs), for example, to employ
software that facilitates traceability by conditioning access on the user’s providing
some minimal level of identification. Call this a “traceability regulation.” Many ISPs
would resist it, but the government could then require that major commercial institutions (including credit institutions) be prohibited from dealing with any ISP notcertified to be in compliance with the traceability regulation. Some major institutions,in turn, might resist this requirement, but not many. For major institutions in
a competitive market, the threat of governmental prosecution far outweighs any incentive to violate the law. These two steps would create a great incentive for local
ISPs to facilitate traceability.
Such a rule, of course, raises serious constitutional questions.I consider some ofthem in the chapters that follow. My aim here is simply to sketch the techniques that
could enable an effective ID requirement in cyberspace. The point is that within an
integrated commercial and noncommercial network the government’s power overcommercial entities leverages into a power over noncommercial entities. Bringing
commerce to the Net was the first, essential, and perhaps sufficient step in making
the Net regulable. More active intervention by the government will make it evenmore so.
So far, however, governments have not been good at encouraging an architectureof identification. Not only have they been slow, but through clumsy legislation they
have inhibited its growth.29 In my view, however, these errors are short-term. We
cannot count on the government making errors forever, especially when so muchhangs on the construction of an effective PKI architecture.

52

C O D EA crucial assumption is built into all these examples. I’ve assumed that there are entities responsible for the code that individuals use, and that these entities can be effectively regulated. And as the open code software movement grows, it is important
to ask whether this assumption is really true. The government can regulate the telephone companies (they are few in number, well known,and loaded with tangible assets), but how can it regulate code w riters? In particular, how can the government
regulate code writers who are committed to resisting precisely such regulation?
This is the topic of the last chapter in part 2—the effect of the open code movement on government’s power to regulate. But we can make a few points here.
In a world where the code writers were the sort of people who governed the Internet Engineering Task Force30 of a few years ago, government’s power to regulate
code would be slight. The underpaid heroes who built the Net have ideological reasons to resist government’s mandate. They are not likely to yield to its threats. And
unlike some commercial interests, they do not have millions riding on a single architecture winning out in the end. 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 asmaller number of large companies—the government’s ability to regulate it increases. The more money there is at stake, the less inclined businesses (and theirbackers) are to bear the costs of promoting an ideology.
The best example is the history of encryption. From the very start of the debate
over the government’s control of encryption, techies have argued that such regulations are silly. Code can always be exported; bits know no borders. So the idea that alaw 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 thetechies—who could easily get encryption technologies from any number of placeson the Net—but on the businesses writing software that would incorporate suchtechnology. Netscape or IBM was not about to build and sell software in violationof U.S. regulations. The United States has a fairly powerful threat against these twocompanies. As the techies predicted, regulation did not control the flow of bits. But
it did quite substantially inhibit the development of software that would use thesebits.31
The effect has been profound. Companies that were once bastions of unregulability are now becoming producers of technologies that facilitate regulation. For example, Network Associates,inheritor of the encryption program PGP, was originallya strong opponent of regulation of encryption; now it offers products that facilitate
corporate control of encryption and recovery of keys.32 Key recovery facilitates a
corporate back door, which in many contexts is far less restricted than a governmental back door.
Cisco is a second example.33 In 1998 Cisco announced a router product thatwould enable an ISP to encr ypt Internet traffic at the link le vel—between gateways,that is. 34 But this router would also have a switch that would disable the encr yptionof the router data and facilitate the collection of unencrypted Internet traffic. Thisregulating code53

switch could be flipped at the government’s command; in other words, the data
would be encrypted only so long as the government allowed it to be.
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 product. Eitherway, 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.

E A S TC O A S T

A N D

W E S TC O A S T

C O D E

Throughout this section, I’ve been speaking of two sorts of code. One is the “code”
that Congress enacts (as in the tax code or “the U.S. Code”). Congress passes an endless array of statutes that say in words how to behave. Some statutes direct people;
others direct companies; some direct bureaucrats. 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 w riters “enact”—the instructions imbedded 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, for example, regulated to disable centralized control; code that encrypts regulates to protect
privacy. In our country (MIT excepted), this kind of code writing is increasingly aWest Coast (Silicon Valley, Redmond) activity. We can call it “West Coast Code.”West Coast and East Coast Code can get along perfectly fine not paying much attention to the other. Each, that is, can regulate within its own domain. But the storyof this chapter is “East meets West”: what happens when East Coast Code recognizes
how West Coast Code is regulating, and when East Coast Code sees how it might interact with West Coast Code to induce it to regulate differently.
This interaction has changed. The power of East Coast Code over West Coast
Code has increased. When software was the product of hackers and individuals located outside of any institution of effective control (for example, the University of
Illinois or MIT), East Coast Code could do little to control West Coast Code.35 But
as code has become the product of companies, the power of East Coast Code has increased. When commerce writes code, then code can be controlled, because commercial entities can be controlled. Thus, the power of East over West increases asWest Coast Code becomes increasingly commercial.
There is a long history of power moving west. It tells of the clash of ways between
the old and the new. The pattern is familiar. The East reaches out to control theWest; the West, partially, resists.
We are seeing in cyberspace a shift that history has seen many times before. But
we are not yet done with the East’s control of the West. There is one final step totake before the power of the state to make cyberspace regulable is completely clear.

54

C O D E

This final step links this chapter’s argument with the last chapter’s account ofidentification.

R E G U L A T I N G

T H E

I D - E N A B L E D

W O R L D

In my story so far, I’ve described a certain kind of cooperation between East Coastcode and West Coast Code. I’ve argued that commerce alone has an interest in creating an architecture of identification, and I’ve laid out just how the government
might influence the architecture of the Net to create the requirement of some sort ofidentification, or traceability. The final step in this argument is to make explicit what
has been implicit throughout—that an ID-enabled world facilitates regulation.
How will the internal passports of digital ID enable reg u l a ti on? The proof
comes in two steps. In the first, I lay out how an ID-enabled world would enable
regulation for a particular problem of regulation—in this case, gambling. In thesecond, I show how this technique generalizes. Although not every government
may want to solve the problem of gambling, every government does have someproblem that it wants to solve. The ID-enabled world can help each government
solve its own regulatory problem. Thus, governments share an interest in an IDenabled world, even if they do not share an interest in the particular regulations
such a world makes possible.
Let’s return to the problem of Internet gambling and consider it both with andwithout digital IDs. My claim is that a certificate-rich Internet solves the problem ofregulability. Once you see this point with respect to this single example, you will see
the point more generally.
Gambling is one of the stock examples given by cyberlibertarians to show why
behavior in cyberspace is unregulable. Take the case of Minnesota, which has astrong state policy against gambling.36 Its legislature has banned its citizens fromgambling, and its attorney general has vigorously enforced this legislative judgment—both by shutting down gambling sites in the state and by threatening le gal
action against sites outside of the state if they let citizens from Minnesota gamble.
This threat, cyberlibertarians argue, will have no effect on gambling on the Internet, nor on the gambling behavior of Minnesota citizens.37 The proof is fairly
straightforward. Imagine a gambling server located in Minnesota. When Minnesota
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 in Minneapolis as one located in Chicago. So the gamblingsite can easily move yet 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 courts of Illinois
to prosecute the illegal server in Chicago (assuming it could be shown that the behavior of the server was in fact illegal). So the server simply moves from Chicago to
Cayman, making it one step more difficult for Minnesota to prosecute but still noregulating code55

more difficult for citizens of Minnesota to get access. No matter what Minnesota
does, it seems the Net helps its citizens beat the government. The Net, oblivious togeography, makes it practically impossible for geographically limited governments
to enforce their rules over actors on the Net.
Now, however, imagine a world where everyone holds a digital ID, and not necessarily a governmentally issued ID; any ID will do. As you pass onto a site, the sitechecks your ID. If you do not hold the proper ID for that type of site—if you are under eighteen and it is an adult site, or if you are from Minnesota and it is a gamblingsite—the site does not let you pass. But if you hold a proper ID, the site does let you
pass. This process occurs invisibly, or machine to machine. All the user knows is that
she has gotten in, or if she has not, then why.38
In this story, then,the interests of Minnesota are respected. Its citizens are not allowed to gamble. But Minnesota’s desires do not determine the gambling practicesof people from outside the state.Only citizens of Minnesota are disabled by this regulation; other citizens can gamble.
This is regulation at the level of one state, for one problem. But why would otherstates cooperate with Minnesota? Why would any other jurisdiction want to carryout Minnesota’s regulation?
The answer is that they would not if this were the only regulation at stake. 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 Minnesota’s.
Each state has its own stake in controlling certain behaviors, and these behaviors
are different. But the key is this: the same architecture that enables Minnesota toachieve 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 servers
within its jurisdiction the regulations of other states for citizens from those otherstates, in exchange for having its own regulations enforced in other jurisdictions.
New York would require that servers within New York keep Minnesotans away fromNew York gambling servers, in e xchange for Minnesota keeping New York citizens
away from privacy-exploiting servers. Utah would keep EU citizens away fromprivacy-exploiting servers, in exchange for Europe keeping Utah citizens away from
European gambling sites.Each state would enforce a set of regulations for the otherstates, in exchange for the other states enforcing its own set of regulations.
This structure, in effect, is precisely the structure that is already in place for regulating interstate gambling. According to federal law, interstate Internet gambling is
not permitted unless the user is calling from a gambling-permissive state into another gambling-permissive state.39 If the user calls from a gambling-restrictive state
or into a gambling-restrictive state, he or she has committed a federal offense.
The same structure could be used to sup port local regulation of 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 commitment to support

56

C O D Esuch local discrimination, we could easily imagine an architecture that enables local
regulation of Internet behavior.
And if all this could occur within the United States, it could occur between nations generally. There is the same interest internationally in enforcing local laws as
there is nationally—indeed, the interest is most likely even higher. An ID, or
certificate-rich, Internet would facilitate international zoning and enable this structure of international control.
Stop. Don’t turn away. I know at least some of the thousands of reasons you havefor rejecting the structure I’ve just described. Some of those reasons are normative—
you hate the world I am describing. Or you hate the idea that cyberspace would become like this world. I do too. I am not promoting an idea, I am arguing that this is
the world we are moving to. Those who want to resist this world, or at least its worst
features, had better understand the evolution. There are critical architectural decisions that need to be made, and we must begin to make those decisions now.
Others might not be so opposed to the emerging ID-enabled world I am describing but may simply believe that it is unlikely to come about. They believe thatthe desire of governments to facilitate such discrimination is not terribly strong, andin any case, the technology to enable it would be too difficult to erect.
These two points, of course, operate together. Some governments, regardless ofthe cost, are willing to adopt technologies to block access. (China is an example.)But other countries would not go to such great lengths to control access. If the costwere too high, they would simply leave the regulation aside and move on to other,more important activities (Taiwan).
This trade-off—between cost and the willingness to regulate—is one we haveseen before. It is a theme that recurs in many contexts. Cost for the government isliberty for us. The higher the cost of a regulation, the less likely it will be pursued asa regulation.Liberty depends on the regulation remaining expensive.
When it becomes easy or cheap to regulate,however, this contingent liberty is at
risk. We can expect more regulation. In these cases,if we want to preserve liberty, weneed to develop affirmative arguments for it. We will need these affirmative arguments to prevent identity-based regulation of the Net. As I explain in the balance of
this book, there is both a surprisingly great desire for nations to embrace regimesthat facilitate jurisdiction-specific regulation and a significant reason why the costsof regulation are likely to fall. We should expect, then, that there will be more such
regulation. Soon.
The proof that this capacity for regulation will emerge is the subject of the next
chapters. To end this chapter, we need only answer one question. Assuming thatthese architectures for identification will emerge, what follows about the regulabilityof cyberspace?
The answer, I trust, is obvious: putting to one side the question of identifying
content (which I consider in detail in chapter 12),an architecture for selective certification would dramatically increase the power of local governments to impose re-regulating code

57

quirements on their citizens. Sites would be required to condition admission on thecertificates held by users, and the Internet would shift from being an essentially unregulable space locally to a highly regulable space. Rules imposed by local jurisdictions could be made effective through their recogn i ti on by other jurisdictions.
Servers, for example, would recognize that access is conditioned on the rules imposed by jurisdictions.
The effect,in short, would be to zone cyberspace based on the qualifications carried by individual users. It would enable a degree of control of cyberspace that few
have ever imagined. Cyberspace would go from being an unregulable space to, depending on the depth of the certificates in the space,the most regulable space imaginable.
One final line of resistance: even if these architectures emerge, and even if they
become common, there is nothing to show that they will become universal, andnothing to show that at any one time they could not be evaded. Individuals can always work around these technologies of identity. No control that they could effectwould ever be perfect.
True. The control of a certificate-rich Internet would never be complete. But
there is a fallacy lurking in the argument: just because perfect control is not possible
does not mean that effective control is not possible. Locks can be picked, but that
does not mean locks are useless. And 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. The controls ofa certificate-rich Internet are tiny, I agree. But we are large animals. I think it is as
likely that the majo rity of people would resist 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.
One final twist to this bovine account. So far I’ve been discussing a relatively cumbersome technology for identification—certificates. These are cumbersome because
to tie the certificate to a person (as opposed to a machine), we still need some sortof link—through, for example, a pass-phrase. These phrases can be a hassle; if theychange, they can be easy to forget.
There is an easier way. Already computer manufacturers are exploring biometricdevices that would make it simple to tie a person to a machine. Compaq, for example, is considering a thumbprint reader: when you sit at your keyboard, it would
verify that you are who you say you are. Who needs a password when you have athumb?40
So what will happen when these technologies become cheap and easy? When you
can choose between remembering a pass-phrase, typing it every time you want access to your computer, and simply using your thumb to authenticate who you are?
Or if not your thumb, then your retina, or whatever body part turns out to be

58

C O D E

cheapest to certify? When it is easiest simply to give identity up, will anyone resist
giving it up?
For if this is selling your soul, then trust that there are truly wonderful benefits
to be had. Imagine a world where all your documents exist on the Internet in a “virtual private network,” accessible by you from any machine on the Net and perfectly
secured by a biometric key.41 You could sit at any machine,call up your documents,
do your work, answer your e-mail, and move on—everything perfectly secure andsafe, locked up by a key certified by the markings in your eye.
This is the easiest and most efficient architecture to imagine. And it comes at(what some think) is a very low price—authentication. Just say who you are, plug
into an architecture that certifies facts about you, give your identity away, and all this
could be yours.
There was an awful movie released in 1996 called Independence Day. The story is
about an invasion by aliens. When the aliens first appear, many earthlings 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 in reaction to what before
had seemed just a dream: really cool alien life.
Soon after the aliens appear, however, and well into the celebration, the moodchanges. Quite suddenly, Earth leaders realize that the intentions of these aliens are
not friendly. Indeed, their intentions are quite hostile. Within a very short time ofthis realization, Earth is captured. (Only Jeff Goldblum realizes 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 welcoming and joyous about the Net as the earthlings were about the aliens in Independence
Day; we have accepted its growth in our lives without questioning its final effect. But
at some point, we too will come to see a potential threat. We will see that cyberspacedoes 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 I havefound that, for some reason, the people for whom this point 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 architectures embed different
values, and that only by selecting these different architectures—these different
codes—can we establish and promote our values.
Now it should be apparent why I began this book with an account of the rediscovery of the role for self-government, or control, that has marked recent history in
post-Communist Europe. Market forces encourage architectures of 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; thepotential 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.

regulating code59

But isn’t it clear that government should do something to make this architecture consistent with important public values? If commerce is going to define theemerging architectures of cyberspace, isn’t the role of government to ensure thatthose public values that are not in commerce’s interest are also built into the architecture?
Architecture is a kind of law: it determines what people can and cannot do. Whencommercial interests determine the architecture,they create a kind of privatized law. I
am not against private enterprise; my strong presumption in most cases is to let themarket produce. But isn’t it absolutely clear that there must be limits to this presumption? That public values are not exhausted by the sum of what IBM might desire? That
what is good for America Online is not necessarily good for America?
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 must be mistaken. Politics is that process by which we collectively decide how we should live. That is not to say a space where we collectivize—acollective 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 bywhich we reason about how things ought to be.
A decade ago, in a powerful trilogy drawing together a movement in legal theory,
Roberto Unger preached that “it’s all politics.”42 That we should not accept the ideathat any part of what defines the world as it is,is removed from politics. That everything should be considered “up for grabs,” everything subject to reform.
Many understood Unger to be arguing that we should in fact put everything up
for grabs all the time,that nothing should be certain or fixed,that everything should
be in flux, constantly changing. But that is not what Unger meant.
His meaning was instead just this: That we interrogate the necessities of any particular social order; that we ask whether they are in fact necessities; that we demandthat those necessities justify the powers that they order. As Bruce Ackerman puts it,
we must ask of every exercise of power: Why?43 Perhaps not exactly at the moment
when the power is exercised, but sometime.
“Power,” in this account,is just another word for constraints that humans can dosomething about. Meteors crashing to earth are not “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, however, is nothing we can do anything about.
But the architecture of cyberspace is power in this sense; how it is could be different. Politics is about how we decide. Politics is how that power is exercised,and by
whom.

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If code is law, then, as William Mitchell writes, “control of code is power”: “Forcitizens of cyberspace, . . . code . . . is becoming a crucial focus of political contest.
Who shall write that software that increasingly structures our daily lives?”44
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; the degree to which anonymity will be allowed; the extent to which access will be guaranteed. They are the ones who set its nature. Their decisions, now made in theinterstices of how the Net is coded, define what the Net is.
How the code regulates, who the code writers are, and who controls the code
writers—these are questions that any practice of justice must focus in the age of cyberspace. The answers reveal how cyberspace is regulated. My claim in this part ofthe book is that cyberspace is regulated, and that the regulation is changing. Its regulation is its code, and its code is changing.
We are entering an age when the power of regulation will be relocated to a structure whose properties and possibilities are fundamentally different. As I said about
Russia at the start of this book, one form of power may be destroyed, but another istaking its place.
Our aim must be to understand this power and to ask whether it is properly exercised. As David Brin asks,“If we admire the Net,should not a burden of proof fallon those who would change the basic assumptions that brought it about in the firstplace?”45
These “basic assumptions” were grounded in liberty and openness. An invisible
hand now threatens both. We need to understand how.

P A R T

c o d e

a n d

T W O

o t h e rr e g u l a t o r sPart 1 set up the problem: cyberspace will not take care of itself. Its nature is not
given. Its nature is its code, and its code is changing from a place that disabled control to a place that will enable an extraordinary kind of control. Commerce is making that happen; government will help. Before this happens, we should decide
whether this is the way we want things to be.
In part 2 we will prepare for that choice. I begin by describing a more complex
sense of the life that code makes possible. That’s chapter 6. What makes these places
feel as they do? What architectures make possible the life within each? And how
might that life change as the structures that constitute them—their architectures—change?
Chapter 7 is about the techniques for that change. Building on the pattern I described in chapter 5, I offer a general mo del of regulation that is applicable to cyberspace as well as real space. My aim is to convey a sense of the power thatgovernment has here, and a stronger sense of why that power will increase—not decrease—over time.
I then describe an important limitation to this power—in terms from the introduction, a structural constraint on government’s power. This is the limit implicit in the
open code movement. As I argue in chapter 8, the power that government obtains
through the techniques I sketched in chapter 5, open code takes away. There is thus acompetition about regulability, mediated by the ownership of the code.

62

C O D EThe aim in the end is to see what is at stake, what is possible, and what limits
there are on what is possible. The argument is not against regulation; the argument
is against a particularly narrow, and useless, conception of regulation. Once we havea better view of how regulation works, we will see more clearly how we might choose
the space cyberspace should be.

S I Xc y b e r s p a c e s

Cyber space is not a pl ace. It is ma ny pl aces. The ch a r act er of t hese many
places is not identical. They instead differ in ways that are fundamental. These differences come in part from differences in the people who populate these places. But
demographics alone won’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 thetwentieth century what many of us feel was lost in the decades at the beginning of
the century—a stable sense of community, of place. Ask those who’ve been members of such a virtual community, and they’ll tell you that what happens there ismore than an exchange of electronic impulses in the wires. It’s not just virtualbarn raising. . . . It’s also the comfort from others that a man like Phil Catalfo ofthe WELL can experience when he’s up late at night caring for a child sufferingfrom leukemia, and he logs on to the WELL and pours out his anguish and fears.
People really do care for each other and fall in love over the Net, just as they do ingeographic communities. And that “virtual” connectedness is a real sign of hopein a nation that’s increasingly anxious about the fragmentation of public life andthe polarization of interest groups and the alienation of urban existence.1

There are two sorts of reactions to talk like this. To those who have been in thisplace for some time, such talk is extremely familiar. These people have been on nets
from the start. They moved to the Internet from more isolated communities—froma local BBS (bulletin board service), or as Mike Godwin (the author of the passage)
likes to put it, from a “tony” address like “The WELL.” For them the Net is a spacefor conversation, connections, and exchange, a wildly promising location for making life in real space different.

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But if you are a recent immigrant to this “space” (the old-timers call you “newbies”), you are likely to be impatient with talk like this. When people talk about“community,” about special ways to connect, or about the amazing power of thisspace to alter lives, you are likely to ask, “What is this idea of cyberspace as a place?”
For newbies, those who have simply e-mailed or surfed the World Wide Web, the“community” of the Net is an odd sort of mysticism. How can anyone think of thesepages full of advertisements and spinning Mickey Mouse icons as a community, oreven 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 we romanticize
the old days when the Net was a place for conversation and exchange, this is not its
function for most of its users now. Certainly, the world is into “chat,” but even ignoring the large portion of that space devoted to sex, chat is not the stuff the WELL
was made of. Most people do not understand what chat or a MOO really is—maybe
they have heard talk about them, but they do not understand what they are about.
They do not understand what life in the community of the WELL, or a MOO, is really like.
In its feel, cyberspace has changed.4 How it looks, what you can do there, how
you are connected there—all this has changed. Why it has changed is a complicatedquestion—a complete answer to which I can’t provide. Cyberspace has changed inpart because the people—who they are, what their interests are—have changed,andin 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 in adifferent type of space.5 My hope is to illuminate the differences between these twoenvironments.
The next sections describe different cyber-places. The aim is an intuition about
how to think through the differences that we observe. This intuition, in turn, will
help us see something about where cyberspace is moving.

T H E

V A L U E S

O FAS P A C E

Spaces have values.6 They express these values through the practices or lives thatthey enable or disable. Differently constituted spaces enable and disable differently.
This is the first idea that we must make plain. Here is an example.
At the start of the Internet, communication was through text. Media such as
USENET newsgroups, Internet Relay Chat, and e-mail all confined exchange totext—to words on a screen, typed by a person (or so one thought).
The reason for this limitation is fairly obvious: the bandwidth of early Net life
was very thin. In an environment where most users connected at 1,200 baud,if they
were lucky, graphics and streaming video would have taken an unbearably long time
to download, if they downloaded at all. What was needed was an efficient mode ofcommunication—and text is one of the most efficient. 7

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Most think of this fact about the early Net as a limitation. Technically, it was. But
this technical description does not exhaust its normative description as an architecture that made possible a certain kind of life. From this perspective, limitations canbe features; they can enable as well as disable. And this particular limitation enabledclasses of people who were disabled in real-space life.
Think about three such classes—the blind,the deaf,and the “ugly.”* In real spacethese people face an extraordinary array of constraints on their ability to communicate. The blind person in real space is constantly confronted with architectures that
presume he can see; he bears an extraordinary cost in retrofitting real-space architectures so that this presumption is not totally exclusionary. The deaf person in real
space confronts architectures that presume she can hear; she too bears an extraordinary cost in retrofitting these architectures. The “ugly” person in real space (think ofa bar or a social club) confronts architectures of social norms that make his appearance a barrier to a certain sort of intimacy. He endures extraordinary suffering inconforming to these architectures.
In real space these three groups are confronted with architectures that disable
them relative to “the rest of us.” But in cyberspace, in its first iteration,they did not.
The blind could easily implement speech programs that read the (by definition
machine-readable) text and could respond by typing. Other people on the Net
would have no way of knowing that the person typing the message was blind, unlesshe claimed to be. The blind were equal to the seeing.
The same with the deaf. There was no need to hear anything in this early Internet. For the first time many of the deaf could have conversations, or exchanges, inwhich the most salient feature was not that the person was deaf. The deaf were equal
to the hearing.
And the same with the “ugly.” Because your appearance was not transmitted withevery exchange, the unattractive could have an intimate conversation with others
that was not automatically defined by what they looked like. They could flirt or play
or be sexual without their bodies (in an extremely underappreciated sense) gettingin the way. This first version of the Net made these people equal to “the beautiful.”
In a virtual chat room, stunning eyes, a captivating smile or impressive biceps don’t
do it. Wit, engagement, and articulateness do.
The architecture of this original cyberspace gave these groups something thatthey did not have in real space. More generally, it changed the mix of benefits andburdens that people faced—the literate were enabled and the attractive disabled relative to real space. Architectures produced these enablings and disablings.

*It is an important fact about us that it is awkward even to use such a word—“ugly”—as if it describes objective features o f humans. I acknowledge the complexity here, and the importance of the escape from humiliation that some parts of society give and other parts of society do not. But we cannot
assume away the burdens that the unattractive suffer relative to the less unattractive. My claim is not thatthese are at the level of starvation, or death; my claim is not about their significance. My only aim is tolink what I believe is a disadvantage to features of a space.

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I’ve told this story as if it matters only to those who in real space are “disabled.”
But of course, “disabled”is relative.8 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 chatspaces, arguing with others about all sorts of political topics:
You don’t understand what it’s like to be me. You have lived your whole life in aworld where your words are taken for their meaning; where what you say is heard
for what it says. I’ve never had a space, before this space, where my words weretaken for what they meant. Always, before, they were words of “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 inreal space she was “disabled.”9Over time, as bandwidth has expanded, this architecture has changed. So has themix of benefits and burdens changed. When graphics entered the Net through theWorld Wide Web, the blind became “blind”again. As sound files or speech in Avatar
spaces have been created, the deaf have become “deaf” again. And as chat rooms havestarted segregating into spaces where videocams capture real images of the people
chatting, and spaces where there is just text, the video-unappealing are again unappealing.10 As the architectures 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 and graphics, then it
no doubt should. 11 However important, my point is not really about the “disabled”
at all.I use this example simply to highlight a link—between these structures of codeand the world this code enables. Codes constitute cyberspaces; spaces enable anddisable individuals and groups. The selections about code are therefore in part a selection about who, what,and, most important, what ways of life will be enabled anddisabled.

C Y B E R - P L A C E S

We can build on this point by looking at a number of “communities” that are constituted differently and that constitute different forms of life, and by considering
what makes these differences possible.
Am eri ca

On lin e

America Online (AOL) is an online service provider—the largest in the world withsome twelve million subscribers in 1998. 12 With twice the population of Massachusetts (at least), AOL describes itself as a “community.” A large community perhaps,
but a community nonetheless.

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This community has a constitution—not in the sense of a written document(though there is that as well), but in the sense of a way of life that defines life forthose who live there. Its founding vision was that community would make this placesing. So from its start, AOL’s emphasis has been on enabling people to interact,through chat, bulletin boards,and e-mail.Earlier providers, obsessed with providing
content or advertising, limited or ignored the possibilities for interaction and exchange, but AOL saw interaction as the stuff that makes cyberspace different. It built
itself on building a community, establishing itself as a place where people could saywhat they wanted.13
This interaction is governed by the rules of the place. Some of 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 thisspace,including the behavior of AOL members anywhere on the Internet.14
Increasingly, these rules have become controversial. AOL policies have beencalled “Big Brother” practices. Arguments that get heated produce exchanges that are
rude. But rudeness, or offensiveness, is not permitted in AOL’s community. Whenthese exchanges are expunged, claims of “censorship” arise.15
My aim here, however, is not to criticize these rules of “netiquette.” AOL also has
other rules that regulate AOL members—rules expressed not in contracts but rather
through the very architectures of the space. These rules constitute the most important part of AOL’s constitution, yet they are probably the part considered last when
we think about what regulates behavior in this cyber-place.
So consider some examples:
As a member of AOL you can be any one of five people. This is just one amazing
feature of the space. When you start an account on AOL, you have the right to establish up to five identities, through five different “screen names” that in effect establish five different a ccounts. Some users, of course, use the five screen names togive other family members access to AOL. But not everyone uses an AOL accountlike this. Think about the single woman, signing up for her first AOL account. AOL
gives her up to five identities that she can define as she wishes—five different personae she can use in cyberspace.
What does that mean? A screen name is just a label for identifying who you arewhen you are on the system. It need not (indeed, often cannot) be your own name.
If your screen name is “StrayCat,” then people can reach you 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 paged you. If you enter a chat room, thelist of residents there will add you as “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 ascomplete or incomplete as she wishes. It can be true or false, explicit or vague,inviting or not. A member stumbling across StrayCat, then, in a chat room set up for68

C O D E

stamp collectors could get her profile and read that StrayCat lives in Cleveland andis 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. She canthen select another screen name and define it in the directory as she wishes. Perhaps
when StrayCat is having a serious discussion in a newsgroup or political list she
prefers to speak as herself. She could then select a screen name close to her own
name and define it according to who she really is. At other times StrayCat may liketo pretend to be a man—engaging in virtual cross-dressing, and all that might bringwith it.One of her screen names could then be a man’s. And so on. The point is themultiplicity that AOL allows, and the freedom this multiplicity permits.
No one except StrayCat needs to know which screen names are hers. She is not
required to publish the full list of her identities, and no one can find out 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.)16
So in AOL you are given a fantastic power of pseudonymity that the “code writers” of real space simply do not give. You could, of course, try in real space to live thesame range of multiple lives, and to the extent that these lives are not incompatible orinconsistent, you could quite often get away with it. For instance, you could be a Cubs
fan during the summer and an opera buff during the winter. But unless you take extraordinary steps to hide your identity, in real space you are always tied back to you.
You cannot simply define a different character; you must make it, and more important (and difficult), you must sustain its separation from your original identity.
That is a first feature of the constitution of AOL—a feature constituted by its
code.A second is tied to sp eech—what you can say, and where.
Within the limits of decency, and so long as you are in the proper place, you cansay what you want on AOL. But beyond these limits, speech on AOL is constrainedin a more interesting way. Not the constraint of rules. My point instead is about therange of permissible speech governed by the character of the potential audience.
There are places in AOL where people can gather; there are places where people cango and read messages posted by others. 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 you could address all members of AOL. There is notown hall or town meeting where people can complain in public and have theircomplaints heard by others. There is no space large enough for citizens to create ariot. The owners of AOL, however, can speak to all. Steve Case, the “town mayor,”
writes “chatty” letters to the members.17 AOL advertises to all its members and cansend everyone an e-mail. But only the owners and those they authorize can do so.
The rest of the members of AOL can speak to crowds only where they notice a
crowd. And never to a crowd greater than twenty-three.

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This is another feature of the constitution of the space that AOL is, and it too isa feature defined by code. That only twenty-three people can be in a chat room atonce is a choice of the code engineers. While their reasons could be many, the effectis clear. One can’t imagine easily exciting members of AOL into public action. One
can’t imagine easily picketing the latest pricing policy. There are places to go to complain, but you have to take the trouble to go there yourself. There is no 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.18 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 issuesof 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 into AOL.19
This is not to romanticize the power of real-space public forums. We have b ecome such a nonpolitical society that if you actually exercised this constitutionallyprotected right, people would think you a nut. If you stood on a street corner andattacked the latest tax proposal in Congress, your friends would be likely to worry—and not about the tax proposal. There are exceptions—events can make salient theneed for protest—but in the main, though real space has fewer controls throughcode on who can speak where, it has many more controls through norms on what
people can say where. Perhaps in the end real space is much like AOL—the effective
space for public speech is limited,and often unimportant. That may well be. But myaim 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, whenthey’re not using AOL as a gateway to the Internet), AOL can (and no doubt does)
trace your activities and collect information about them. What files you download,what areas you frequent, who your “buddies” are—all this is available to AOL. These
data are extremely valuable; they help AOL structure its space to fit customer demand. But gaining the ability to collect these data required a design decision. Thisdecision too was part of the constitution that is AOL—again, a part constituted byits code. It is a decision that gives some but not others the power to watch.
AOL is not e xclusive in this enabling capacity. It shares the power. One wonderful feature of the online space is something called “buddy lists.” Add someone toyour buddy list, and when he comes online you hear the sound of a creaking door
and are notified that he is online. (The “buddy”need not know he is being watched,though he can,if he knows, block the watching.) If that person goes into a chat areaand you “locate” him, you will be told in what chat area he is. This power, given to
ordinary users, can have complicated consequences. (Imagine sitting at work with

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your buddy feature turned on,watching your spouse come online, enter a chat area,
and—you get the point.) 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.
Consider one final feature of the constitution of AOL, closely linked to the last:commerce. In AOL you can buy things. You can buy things and download 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, andmost important, it knows your credit card number and the security it provides.
AOL knows who you are—this is a feature of its design. All your behavior on
AOL is watch ed ; all of it is monitored and tracked back to you as a user. AOL
promises not to collect data about you individually, but it certainly collects 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 efficiently, 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 individuals to find out
who you are; easier for AOL to speak to all its “citizens” as it wishes, and harder for
dissidents to organize against AOL’s views about how things ought to be; easier for
AOL to market, and harder for individuals to hide. AOL is a different normative
world; it can create this different world because it is in control of the architecture ofthat world. Members in that space face, in a sense, a different set of laws of nature;
AOL makes those laws.
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 to allay some of theconcern that this control creates, and no doubt if the place became oppressive, themarket would provide plenty of alternatives.
Rather my objective is to impart a sense of what makes AOL the way it is. It is notjust written rules; it is not just custom; it is not just the supply and demand of aknowing consuming public. What makes AOL is in large part the structure of thespace. You enter AOL and you find it to be a certain universe. This space is constituted by its code. You can resist this code—you can resist how you find it,just as you
can resist cold weather by putting on a sweater. 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 force AOL to change the code. You live life in AOL
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 help regulate the problem. This AOL does as well. Alternatively, if the problem comes from the overuse ofcyberspaces

71

a particular resource, then the managers at AOL can price that resource differently,
exacting a tax to reduce its usage, or a different price for those who use it too much.
But AOL has something more at hand. If AOL does not like a certain behavior,
then in at least some cases it can regulate that behavior by changing 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 automatically through virus checkers; if there is stalking or harassing or threatening 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.
Think a bit about the power I am describing—and again, I am not complaining
or criticizing or questioning this power, only describing it. As you move through thisspace that AOL defines—entering a chat area, posting a message to a bulletin board,
entering a discussion space, sending instant-messages to another person, watchingor following other people,uploading or downloading files from sites, turning to certain channels and reading certain articles, or obsessively paging through a spacelooking for pictures of a certain actor or actress—as you do any of these things, AOL
is, in an important 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 for a certain kind of service it wants to discourage, or channeling thesurfer through ads that it wants customers to see, or identifying patterns of behavior that its monitors would watch,based on the fear that people with patterns like X
are typically dangerous to people of type Y. I do not think AOL engages in activities
like these,and I am not even saying that there would be anything wrong if it did. But
it is imp ortant to note that the potential for control in this “community” is unlimited—not in the sense that AOL could make life miserable (since people would thenleave), but in the sense that it has a regulatory tool that others,in both real spa ce andother cyberspaces, do not. Its power is, of course, checked by the market, but it has
a tool of control that others in the market, but outside cyberspace, do not have.
In principle, then, AOL must choose. Every time AOL decides that it wants toregulate a certain kind of behavior, it must select from among at least four modalities—rules, norms, prices, or architecture. And when selecting one of these fourmodalities, selecting architecture as a regulator will often make the most sense.
C ouns el

C o nnec t

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 inconversations with each other; and through this access and these conversations,72

C O D Evalue would be created. Lawyers would give and take work; they would contribute
ideas as they found ideas in the space. A different kind of law practice would
emerge—less insular, less exclusive,more broadly based.
I thought the idea amazing, though many thought it nuts. For a time the system
was carried by Lexis; in 1996 it was sold to American Lawyer Media, L.P.; in 1997 it
migrated to the Internet and remains there today. It boasts thousands of subscribers,
though it is hard to know how many of them contribute to the discussion online.
Many no doubt simply watch the discussions of others, perhaps linking three or four
discussion groups of their particular interest, plus a few of more general interest.
This is how the more interesting feature of the space is designed: legal topics are
divided into discussion groups, with each group led by a discussion leader. The
leader is not a moderator; he or she has no power to cancel a post. The leader is there
to inspire conversation—to induce others to speak by being encouraging or
provocative.
There are today some ninety groups in this space. The poster of a particular message may have it removed, but if the poster does not remove it, it stays—at first in
the list of topics being discussed,and later in an archive that can be searched by any
member.
Members pay a fee to join and get an account with their real name on it. Postings
use members’ real names,and anyone wondering who someone is can simply link toa directory. Members of CC must be members of the bar, 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 newsgroup. A
thread can be started by anyone, and replies to a thread are appended to the end. Because messages do not move off the system, you can easily read from the start of athread to its end. The whole conversation, not just a snippet,is preserved to be read.
These features of CC space were obviously designed. The architects of the spacechose to enable certain features and to disable others. We can list here some of theeffects of these choices.
First, there is the effect of being required to use your own name. You are more
likely to think before speaking and to be careful about being right before saying
something definitive. You are constrained by the community, which will judge what
you say, and in this community you cannot escape from being linked to what you
have said. Responsibility is a consequence of this architecture, but so is a certain inhibition. Does a senior partner at a leading law firm really want to ask a questionthat will announce his ignorance about a certain area of law? Names cannot bechanged to protect the ignorant, so they will often simply not speak.
Second, there is an effect from forcing all discussion into threads. Postings are
kept together; a question is asked, and the discussion begins from the question. If
you want to contribute to this discussion, you must first read through the otherpostings before responding. Of course,this is not a technical requirement—you certainly have a choice not to read. But if you do not read through the entire thread,cyberspaces73

you could well be repeating what another has said and so reveal that you are speaking without listening. Again, the use of real names ties members’ behavior to thenorms of the community.
Third, there is the effect of reputation: the reputation you build in this space isbased on the kind of advice you give. Your reputation survives any particular post
and is, of course, affected by any subsequent posts. These posts are archived andsearchable. If you say one thing about topic X and then the opposite later on, you areat least open to a question about consistency.
Fourth,there is the effect of tying reputation to a real name in a real communityof professionals. Misbehaving here matters elsewhere. CC thus gets the benefit ofthat community—it gets the benefit, that is, of the norms of a par ticular community. These norms might support relatively productive community behavior—more
productive, that is,than the behavior of a group whose members are fundamentally
mixed. They might also sup port punishing those who deviate from appropriate behavior. Thus, CC g ets the benefit o f community sanc tion to control improper b ehavior, whereas AOL must rely on its own content police to ensure that people stayproperly 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 different ways. One
is the life that CC’s features make possible—highly dialogic and engaged, but monitored and with consequences. The other is the regulability by the manager of the lifethat goes on in the CC space. And here we can see a significant difference between
this space and AOL.
CC can use the norms of a community to regulate more effectively than AOL
can. CC benefits from the norms of the legal community; it knows that any misbehavior will be sanctioned by that community. There is, of course, less “behavior” inthis space than in AOL (you do fewer things he re), but such as it is, CC behavior isquite significantly regulated by the reputations of members and the consequences ofusing their real names.
These differences together have an effect on CC’s ability to regulate its members.
They enable a regulation through modalities other than code. They make behavior
in CC more regulable by norms than behavior in AOL is. CC in turn may have lesscontrol than AOL does (since the controlling norms are those of the legal community), but it also bears less of the burden of regulating its members’ behavior. Limiting the population, making members’ behavior public, tying them to their real
names—these are the tools of self-regulation in this vir tual space.
But CC is like AOL in an important way. Neither is a democracy. Management inboth cases controls what will happen in the space—again, not without constraint,
for the market is an important constraint. But in neither place do “the people” havethe power to control what goes on. Perhaps they do, indirectly, in CC more thanAOL, since it is the norms of “the people” that regulate behavior in CC. But thesenorms cannot be used against CC directly. The decisions of CC and AOL managers

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may be affected by market forces—individuals can exit, competitors can steal customers away. But voting doesn’t direct where either CC or AOL goes.
That’s not the case with the next cyber-place. At least,not anymore.
L a m d a M O O

LamdaMOO is a virtual reality. It is a text-based virtual reality. People from across theworld (today close to six thousand of them) link to this space and interact in ways thatthe space permits. The reality is the product of this interaction. Individuals can participate in the construction of this reality—sometimes for upwards of eighty hours aweek. For some this interaction is the most sustained human contact of their entire
lives. For most it is a kind of 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 a char acter and acommunity. You interact in part by talking, and this talking is tied to a name. This
name, and the memories of what it has done,live in the space, and over time people
in the space come to know the person by what these memo ries recall.
The life within these MUDs differ. Elizabeth Reid describes two different“styles”20—social-style MUD and an adventure or game-style MUD. Social MUDs
are simply online communities where people talk and build characters or elements
for the MUD. Adventure MUDs are games, with (virtual) prizes or power to be won
through the deployment of skill in capturing resources or defeating an enemy. In either context,the communities survive a particular interaction. They become virtual
clubs, though with different purposes. Members build reputations through their behavior in these clubs.
You get a character simply by joining the MOO (though in LamdaMOO 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 features of your character.
You select a name and a gender (no gender is an option as well) and describe yourcharacter. Some descriptions are quite ordinary (Johnny Manhattan is “tall and thin,pale as string cheese, wearing a neighborhood hat”).21 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.)22
Julian Dibbell broke the story of this space to the nonvirtual world in an article
in the Village Voice.23 The story that was the focus of Dibbell’s article involved acharacter called Mr. Bungle who, it turns out, was actually a group of NYU undergraduates sharing this single identity. Bungle entered a room late one evening andfound a group of characters well known in that space. The full story cannot be told
any better than Dibbell tells it. For our purposes,the facts will be enough. 24
Bungle had a special sort of power. By earning special standing in the LamdaMoo community, he had “voodoo” power: he could take over the voices and actions of other characters and make them appear to do things they did not really do.
This Bungle did that night to a group of women and at least one person of ambigu-

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ous gender. He invoked this power, in this public space, and took over the voices ofthese people. Once they were in his control, Bungle “raped” these women, violently
and sadistically, and made it seem as if they enjoyed the rape.
The “rape” was vir tual 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 from sites spread out between New York City and Sidney, Australia.
. . . He commenced his assault entirely unprovoked at, or about 10 P.M. PacificStandard Time. . . . [H]e began by using his voodoo doll to force one of theroom’s occupants to sexually service him in a variety of more or less conventional
ways. That this victim was exu. . . . He tu rn ed his attentions now to Moondreamer . . . forcing her into unwanted liaisons with other individuals present in
the room. . . . His actions grew progressively vi o l en t . . . . He caused Moondreamer to violate herself with a piece of kitchen cutlery. He could not be
stopped until at last someone summoned Iggy . . . who brought with him a gunof near wizardly powers, a gun that didn’t kill but enveloped its targets in a cage
impermeable even to a voodoo doll’s powers.25

Rape is a difficult word to use in any context, but particularly here. 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 tothese women there. Bungle used his power over these women for his own (andagainst their) sexual desire; he sexualized his violence and denied them even the dignity of registering their protest.
For our purposes, whether what happened here was really rape is beside thepoint. What matters is how the community reacted. The community was outraged
by what Bungle had done, and many thought something should be done in response.
They gathered then, this community of members of LamdaMOO, in a virtualroom 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 is described, killed for purposes of the MOO. 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—thecreators, 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 LamdaMOO.26
This troubled many who wanted to do something . Invoking real-space ideals about
fair notice and due process, these people argued that Bungle could not be punishedfor violating rules that did not exist at the time.

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Two extremes eventually emerged. One side urged vigilantism: Bungle was a
miscreant, and something should be done about him. But what shouldn’t be done,
they argued, was for LamdaMOO to respond by creating a world of regulation.
LamdaMOO did not need a state; it needed a few good vigilantes. It needed people
who would enforce the will of the community without the permanent intrusion ofsome central force called the state. Bungle should be expelled, killed, or “toaded”—
and someone would do it. If only the group resisted the call to organize itself into astate.
The other side p romoted just one idea: democracy. With the cooperation of the
Wizards, LamdaMOO should establish a way to vote on rules that would govern
how people in the space behaved. Any question could be made 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 implemented by the Wizards. From then on,
it would be a rule.
Both extremes had their virtues. Both invited certain vices. The anarchy o f thefirst risked chaos. It was easy to imagine the community turning against people withlittle or no warning; one imagined vigilantes roaming the space, unconstrained byany rules, “toading” people whose crimes happened to strike them as “awful.” For
those who took this place less se riously than real space, this compromise was tolerable. But what was tolerable for some was intolerable to others—as Bungle hadlearned.
Democracy seemed natural, yet many resisted it as well. The idea that politics
could exist in LamdaMOO seemed to sully the space. The thought that ideas would
have to be debated and then voted on was just another burden. Sure, rules would beknown 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
three hours. No clear resolution had found its way in. But a resolution of sorts did
occur. As Dibbell describes it:
It was also at this point, most likely, that TomTraceback reached his decision.
TomTraceback was a wizard, a taciturn sort of fellow who’d sat brooding on thesidelines all evening. He hadn’t said a lot, but what he had said indicated that hetook the crime committed against exu and Moondreamer very seriously, and that
he felt no particular compassion toward the character who had committed it. But
on the other hand he had made it equally plain that he took the elimination of afellow player just as seriously, and moreover that he had no desire to return to thedays of wizardly intervention. It must have been difficult, therefore, to reconcile
the conflicting impulses churning within him at that moment. In fact, it wasprobably impossible, for . . . as much as he would have liked to make himself an
instrument of the MOO’s collective will, [he surely realized that under the present order of things] he must in the final analysis either act alone or not act at all.
So TomTraceback acted alone.

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He told the lingering few players in the room that he had to go, and then hewent. 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 location and the time he last logged in. But if you had run a @who on Mr.
Bungle not too long after TomTraceback left emmeline’s room, the databasewould have told you something different.
“Mr_Bungle,” it would have said,“is not the name of any player.”
The date, as it happened, was April Fool’s Day, but this was no joke: Mr. Bungle was truly dead and truly gone.27

When the Wizards saw this, they moved to the other extreme. With no formal
decision by the citizens, the Wizards called forth a democracy. Starting May 1,
1993,28 any matter could be decided by ballot,and any proposition receiving at least
twice as many votes for as against would become the law.29 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.30
But I want to focus on the sense of loss that accompanied the Wizards’ 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 establishing structures that facilitate it.
But LamdaMOO’s move to self-government, through structures of democracy, was
not just an achievement. It was also a defeat. The space had failed. It had failed, we
could 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 passageof 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 uncommon in cyberplaces. Katie Hafner and Matthew Lyon tell a story of the emergence of a “widget”
called the FINGER command on UNIX, that would allow users to see when the lasttime 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 somethingof an invasion of privacy. Whose business was it when I was last at my machine, andwhy should they get to know whether I have read my mail?
A programmer at Carnegie Mellon University, Ivor Durham, changed the command to give the user the power to avoid this spying finger. The result? “Durham
was flamed without mercy. He was called everything from spineless to socially irresponsible to a petty politician, and worse—but not for protecting privacy. He wascriticized for monkeying with the openness of the network.”31
The values of the UNIX world were different. They were values embedded in thecode of UNIX. To change the code was to change the values, and members o f thecommunity fought that change.

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C O D ESo too with the changes to LamdaMoo. Before the balloting, LamdaMoo wasregulated through norms. These regulations of social st ructures 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. Although norms
would no doubt survive the establishment of a democracy, their status was foreverchanged. Before the democracy, a st ruggle over which norms should prevail could
be resolved only by consensus—by certain views prevailing in a decentralized way.
Now such a struggle could be resolved by the power of a majority—not throughwhat a majority did, but through how they voted.
I’ve romanticized this bizarre little world far more than I intended. I do notmean to suggest that the world of LamdaMOO before democracy was necessarily
better than the one after. I want only to mark a particular change.Like CC, and unlike AOL,LamdaMOO is a place where norms regulate. But unlike CC,LamdaMOO
is now a place where members have control over restructuring the norms.
Such control changes things. Norms become different when ballots can overrulethem. And code becomes different when ballots can order Wizards to change theworld. These changes mark a movement from one kind of normative space to another, from one kind of regulation to another.
In all three of these cyber-places, code is a regulator. But there are important differences among the three. Norms have a relevance in CC and LamdaMOO that they do
not in AOL; democracy has a relevance in LamdaMOO that it does not have in CC
or AOL. And monitoring has a relevance in AOL that it does not have in LamdaMOO or CC (since neither of the latter two use data about individuals for commercial purposes, either internal or external to the organization). Code constitutes
these three communities; as Jennifer Mnookin says of LamdaMoo, “politics [is] implemented through technology.”32 Differences in the code constitute them differently, but some code makes community thicker than others. Where community is
thick, norms can regulate.
The final space in this sur vey is also constituted by code, though in this case the“managem en t” has less ability to change its basic architecture. This code is net
code—a protocol of the Internet that is not easily changed by a single user. At least
it was not easy for me.
. l a w . c y b e r

His name was IBEX, and no one knew who he was. I probably could have figured
it out—I had the data to track him down—but after he did what he did, I did notwant to know who he was. He was probably a student in the very first class aboutcyberspace that I taught, and I would have failed him, for I was furious about what
he had done. The class was “The Law of Cyberspace”; version one of that class wasat Yale.

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I say version one because I had the extraordinary opportunity to teach that classat three extraordinary law schools—first at Yale, then at the University of Chicago,and finally at Harvard. These were three very different places, with three very different student bodies, but one part of the course was the same in each place. Every year
a “newsgroup” was associated with the class—an electronic bulletin board wherestudents could post messages about questions raised in the course, or about anything at all. These postings began conversations—threads of discussion, one message posted after another, debating or questioning what the earlier message had said.
These newsgroups constituted what philosophers might call “dialogic communities.” They were spaces where discussion could occur, but where what was said waspreserved for others to read, as in CC. That was the dialogic part. The community
was what was made over time as people got to know each other—both in this space
and in real space. One year students in the class and students outside the class (whohad been watching the .law.cyber discussions develop) had a party; another year the
students outside the class were invited to attend one class. But over the three years,
at three different schools, it was clear that three communities had been made. Eachwas born on a particular date, and each lived for at least a couple of months.
My story here comes from Yale. Yale is an odd sort of law school, though odd ina good way. It is small and filled with extremely bright people, many of whom do
not really want to be lawyers. It fashions itself as a community, and everyone fromthe dean on down (not a “Yale” way to describe things) strives continuously to foster and sustain this sense of community among the students. To a large extent, itworks—not in the sense that there is perpetual peace, but in the sense that people
everywhere are aware of this sense of community. Some embrace it, others resist it,
but the resistance, like an embrace, says that something is there. One does not resist
the community of people on a Greyhound bus.
One extraordinary feature of the Yale Law School is “the Wa ll .” The Wall is aplace where people can post comments about whatever in the world they want tosay. A letter can be posted about gay rights at Yale, or a protest about Yale’s treatmentof unionized workers. Political messages are posted as well as points about law. Eachposting makes additional ones possible—either scribbled on the original post or appended underneath the post.
An extraordinary sign for any visitor, the Wall is located right at the center of thelaw school. In the middle of a fake Gothic structure is a stone space with scores of
papers posted in random fashion. Around the posts stand wandering students, reading what others have said. This is Yale’s speakers’ corner, though the speakers are
writers, and the writing is substantive. There is little to be gained on the Wallthrough rhetoric; to gain respect there, you must say something of substance.
One rule, however, governs this space. All postings must be signed; any posting
without a signature is removed. Originally, no doubt, the rule meant that the posting be signed by the person who wrote it. But because this is Yale, where no rule canexist without a thousand questions raised,a custom has emerged whereby an anony-

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mous 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 the Wall.
The reasons for this rule are clear, but so too are its problems. Let’s say you wantto criticize the dean for a decision he has made. The dean,however sweet, is a powerful person. You might well prefer to post a message without your name attached toit.Or say you are a student with political views that make you an outsider. Posting amessage with those views and your signature might draw the scorn of your classmates. Free speech is not speech without consequence, and scorn, or shame, or ostracism, are likely consequences of lots of speech.
Anonymity, then, is a way around this dilemma. With anonymity, you can say
what you want without fear. In some cases, for some people, the right to speak
anonymously makes sense.
Still, a community might want to resist this right. Just as anonymity might give
you the strength to state an unpopular view, it can also shield you if you post an irresponsible view. Or a slanderous view. Or a hur tful view. You might want to question the policies of the dean, or you might want falsely to accuse a fellow student ofcheating. Both utterances benefit from anonymity, but the community has good reason to resist utterances like the second.
As far as I know, IBEX never said anything on the Wall. 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 technology allowed users
to call themselves whatever they wanted.“IBEX,” of course, was a pseudonym. For
purposes of the Wall,a pseudonym was just like anonymous speech—you had to use
your real name. But in a newsgroup a pseudonymous posting is quite different froman anonymous posting . 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 mightknow who these participants were (we all knew who MadMacs was, but only a few
of us knew SpeedRacer), each pseudonym had a character whether people knew
who they were or not.
The character of IBEX was bad. This much was clear from the start. Before IBEX
appeared, life in the space flourished. At first people were timid, but polite. Bravesouls would post an idea or a joke. The conversation would continue around theidea or joke for a bit. After a couple of weeks the conversation 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.33 Second, helpers quickly developed, and those who received their help. Soon a class developed online—a real class that id entified itself assuch and spoke as a class in a way that a teacher dreams of in real space,and in a way
I had never known.

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Why this happened I could not really say. Una Smith may have been a catalyst. I
said that I taught this course three times. Each time (without my intervention at all)there was an Una Smith participating in the newsgroup. At Yale she was a real person, but after Yale I thought of her as a t ype.She was always a woman from outside
the class; she was always extremely knowl ed ge a ble about the Net and about
USENET; and she always wandered into my (virtual) class and began telling the others how they should behave. When someone violated a norm of the Net, Una would
correct them. Often this instruction was not taken terribly well (these were, after all,law students). Soon the class would rally to defend the instructed and to challenge
her to defend her rules. And of course, expert that she was, she usually had an answer that did defend the rules she had dictated. This exchange soon became a focusof the class. Una had drawn their anger, and the class gained cohesiveness 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 a spring afternoon I noticed that someone had posted the first line of a poem. By the end of theday, without any coordination, the class had finished the poem. There had beenrhythm to the exchanges; now there was rhyme. Things hummed in the newsgroup,and people were genuinely surprised about this space.
It was then that IBEX appeared. I think it was just after we had discussed
anonymity in class, so maybe his later claims to have been serving a pedagogical role
were true. But he appeared after one of our classes—appeared, it seemed, just to issue an attack on another member of the class. Not an attack on his ideas, but onhim. So vicious and so extensive was this attack that when 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 one said
anything, as if everyone were afraid that the monster that had entered our space
would turn his fury on one of them next. Until, that is, the victim responded, withan answer that evinced the wounds of the attack. IBEX’s words had cut. The victim
was angry and hurt, and he attacked back.
But his salvo only inspired another round of viciousness, even more vile than thefirst. With this, other members of the class could not resist joining in. IBEX was attacked by a string of characters in the class as cowardly for hiding behind a pseudonym and as sick for what he had said. None of this had any effect. IBEX came back,again and again, with an ugliness that was as 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 time more vicious
than the last, most simply left the space.(One time IBEX came back to protest that
he had been wronged; in the week before, he claimed, he had not posted anything,but someone wearing the white sheet of IBEX had posted in IBEX’s name,so that he,
the real IBEX, had been defamed. The class had little sympathy.)82

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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, though no one
could believe he was a student at the Yale Law School. This was their classmate,hiding behind a smile, or a joke, in real spa ce, but vicious in cyberspace. And the very
idea that this evil was hidden under a smile changed how people felt about smiles.
Some called this the “David Lynch effect,” an allusion to the film producer who
portrays the rot of society just under freshly painted facades. We felt in that class therot of our community just under the surface of smiling and functional students.
There was a (relatively tame) Jake Baker in our midst. The space had permitted behavior that destroyed community—community that the space itself had created.
Community had been created in part through the ability to hide—to hide behind abenign pseudonym; to hide hesitation, or editing, in the writing; to hide your reaction; to hide that you were not paying attention. These anonymities had made thecommunity what it was. But the same anonymity that created the community gavebirth to IBEX as w ell,and thus took the community away.

H O W

A R C H I T E C T U R E S

S P A C E S

M A T T E R

A N D

D I F F E R

I said this at the start, but now it should have some real meaning: cyberspace is nota place; it is many places. Its places don’t have one nature; the places of cyberspacehave many different “natures.” These natures are not given, they are made. They areset (in part at least) by the architectures that constitute these different spaces. Thesearchitectures are themselves not given; these architectures of code are set by the architects of cyberspace—code writers.
The spaces I have described here are different. These differences have been the
purpose of my description. My aim has been to remind you of the different character that these places have, and to remind you again of the reasons that these places
have these differences.
In some places there is community—that is, a set of norms that are selfenforcing within the group. Features such as visibility (as opposed to anonymity) andnontransience help create those norms; anonymity, transience, and diversity make itharder to create community.
In places where community is not ful ly self-enforcing, norms are supplemented
either by rules imposed through code or by rules recognized through democratic
procedures. These supplements may further some normative end, but at times they
are in tension with the goal of community building.
If we had to simplify this diversity of spaces by finding one dimension along
which we could rank them, that dimension might be their amenability to outsidecontrol. “Community” in the sense that I’ve used the word means a group able toenforce its own norms among its members. In this, the groups I’ve discussed arecyberspaces

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universally vulnerable—.law.cyber being the most vulnerable. But as we move from.law.cyber to CC to LamdaMOO to AOL,the ability to enforce a norm on the groupfrom the outside increases. In .law.cyber, people within the space can argue all theywant about introducing a new norm or changing an existing one, but a norm b ecomes a group norm only if the whole group comes to see it as valuable, and so
adopts it. No external control is possible.
The possibility of external control is greater in CC, though CC and AOL share amarket constraint. In both, management can change the code to bring about a particular end, but if that end is too far removed from what most members think thespace is about, they may simply leave. As a result, AOL has more control than CC;
because the range of behavior on AOL is wider, the range of possible rules in thisspace is greater as well.
In LamdaMOO the story is more complicated. Nothing really binds people to aparticular MOO. (There are thousands, and most are free.) But because charactersin a MOO are earned rather than bought,and because this takes time and characters
are not fungible, it becomes increasingly hard for members of a successful MOO tomove elsewhere. They have 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 particularworld.
The members of a MOO are in a sense the most vulnerable to changes imposedfrom the outside. Because the world of the MOO is (like AOL) completely constricted by code (whether collectively or individually), it is here that the control has
the potential to be the greatest.

T R A D E - O F F S

O F

C O N T R O L

Our look at these contrasting spaces should give depth to the idea that architecture
matters and highlight the different ways in which the code of a cyberspace might enable or disable certain forms of life. Cyberspaces differ not only in the amount ofregulation that each permits;they also differ in the values they embrace and the kindof regulation they permit. Some spaces can be regulated by norms; code can change
that. Some places cannot be regulated by norms; sometimes code can change that aswell. The regulating norms can be those of real space as well as of cyberspace. And,
as we saw in the discussion of Jake Baker, the architecture of cyberspace may permit
an escape from the regulations of real space into a space regulated very differently.
The choices are rich, but they are choices.34
If we let the invisible hand work unimpeded,these choices will be made according to the set of interests that are expressed by commerce on the Net. In some cases,
certainly, those interests will be constrained by government. But now we must thinkspecifically about how we could structure the choices we will confront and how we
could resolve the conflicts of values these spaces will present.

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Our choices in each case are two. We can try to make cyberspace the same as real
space, investing it with the same values, or we can g ive cyberspace values and properties that are fundamentally different.
There is no general answer as to which choice we should make. But if we decide
we should preserve values from real space, we need a way to think about how. And
if we decide we should change values from real space,then change them to what?
The next chapter is about how we might constitute values differently. It is
grounded in a broader sense of this idea of “regulation.” Using this broader sense, wewill see what control might be possible. And in chapter 8, we will see some of thelimits on that control.
Both chapters are about how we might exercise choice. This chapter has been
about the differences in cyberspaces that these choices make. In part 3, we will consider which differences we should want and which we should avoid. We will,in otherwords, practice this choice.

S E V E N
wha tt hing s

r egula te

Joh n St uar t Mil l was an Engl ish man, t h ough one of t h e most infl uent ial
political philosophers in America in the nineteenth century. His writings ranged
from imp ortant work on logic to a still striking text, The Subjection of Women. But
his continuing influence comes from a relatively short book titled On Liberty. Published in 1859, this powerful argument for individual liberty and diversity ofthought represents an important view of liberal and libertarian thinking in the second half of the nineteenth century.
“Libertarian,” however, has a specific meaning for us. It associates with arguments against government.1 Government, in the modern libertarian’s view, is thethreat to liberty; private action is not. Thus, the good libertarian is focused on reducing government’s power. Curb the excesses of government, the libertarian says,
and you will have ensured freedom for your society.
Mill’s view was not so narrow. He was a defender of liberty and an opponent offorces that suppressed it. But those forces were not confined to government.Liberty, inMill’s view, was threatened as much by norms as by government, as much by stigma
and intolerance as by the threat of state punishment. His objective was to argue against
these private forces of coercion. His work was a defense against liberty-suppressing
norms, because in England at the time these were the real threat to liberty.
Mill’s method is important, and it should be our own. It asks, What is the threat
to liberty, and how can we resist it? It is not limited to asking, What is the threat toliberty from government? It understands that more than government can threaten
liberty, and that sometimes this something more can be private rather than state action. Mill was not so concerned with the source. His concern was with liberty.
Threats to liberty change. In England norms may have been the problem in the latenineteenth century; in the United States in the first two decades of the twentieth century it was state suppression of speech.2 The labor movement was founded on the ideathat the market is sometimes a threat to liberty—not just because of low wages, but

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also because the market form of organization itself disables a certain kind of freedom.3
In other societies, at other times, the market is the key, not the enemy, to liberty.
Thus, rather than think of an enemy in the abstract, we should understand theparticular threat to liberty that exists in a particular time and place. And this is especially true when we think about liberty in cyberspace. For my argument is that cyberspace teaches a new threat to liberty. Not new in the sense that no theorist hasconceived of it before. Others have.4 But new in the sense of newly urgent. We arecoming to understand a newly powerful regulator in cyberspace, and we don’t yet
understand how best to control it.
This regulator is code—or more generally, the “built environment” of social life,
its architecture.5 And if in the middle of the nineteenth century it was norms thatthreatened liberty, and at the start of the twentieth state power that threatened liberty, and during much of the middle twentieth the market that threatened liberty,
my argument is that we understand how in the late twentieth century, and into thetwenty-first, it is a different regulator—code—that should be our concern.
But it is not my aim to say that this should be our new single focus. My argument
is not that there is a new single enemy different from the old. Instead, I believe weneed a more g eneral understanding of how regulation works. One that focuses onmore than the single influence of any one force such as government, norms, or themarket, and instead integrates these factors into a single account.
This chapter is a step toward that more general understanding.6 It is an invitation to think beyond the narrow threat of government. The threats to liberty havenever come solely from government, and the threats to liberty in cyberspace certainly will not.

A

D O T ’ S

L I F E

There are many ways to think about constitutional law and the limits it may impose
on government regulation.I want to think about it from the perspective of someone
who is regulated or constrained. That someone regulated is represented by this (pathetic) dot—a creature (you or me) subject to the different constraints that might
regulate it. By describing 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.

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How is this dot “regulated”?
Let’s start with something easy: smoking. If you want to smoke, what constraints
do you face? What factors regulate your decision to smoke or not?
One constraint is legal. In some places at least,laws regulate smoking—if you are
under eighteen, the law says that cigarettes cannot be sold to you. If you are undertwenty-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 tosmoke.7
But laws are not the most significant constraints on 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 cigarettein a private car without first asking permission of the other passengers. They alsosay, 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 that you never smoke during
a meal.
European norms are savagely different. There the presumption is in the smoker’s
favor; vis-à-vis the smoker, the norms are laissez-faire. But in the States the norms
effect a certain constraint, and this constraint, we can say, regulates smoking behavior.
Law and norms are still not the only forces regulating smoking behavior. The
market too is a constraint. The price of cigarettes is a constraint on your ability tosmoke. Change the price, and you change this constraint. Likewise with quality. If
the market supplies a variety of cigarettes of widely varying quality and price, yourability to select the kind of cigarette you want increases; increasing choice here reduces constraint.
Finally, there are the constraints created, we might say, by the technology of cigarettes, or by the technologies affecting their supply.8 Unfiltered cigarettes present agreater constraint on smoking than filtered cigarettes if you are worried about yourhealth. Nicotine-treated cigarettes are addictive and therefore create a greater constraint on smoking than untreated cigarettes. Smokeless cigarettes present less of aconstraint because they can be smoked in more places. Cigarettes with a strong odor
present more of a constraint because they can be smoked in fewer places. In all ofthese ways, how the cigarette is affects the constraints faced by a smoker. How it is,
how it is designed,how it is built—in a word, its architecture.
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.A complete view, however, should
consider them together.

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C O D ESo think of the four together like this:In this drawing, each oval represents one kind of constraint operating on our pathetic dot in the center. Each constraint imposes a different kind of 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 from the cost from law and thecost from the (cancerous) architecture of cigarettes.
The constraints are distinct, yet they are plainly interdependen t .E ach can support or oppose the others. Technologies can undermine norms and laws; they canalso support them. Some constraints make others possible; others make some impossible. Constraints work together, though they function differently and the effect of each is distinct. Norms constrain through the stigma that a community
imposes; markets constrain through the price that they exact; architectures constrain through the physical burdens they impose; and law constrains through thepunishment it threatens.
We can call each constraint a “regulator,” and we can think of each as a distinct
modality of regulation. Each modality has a complex nature, and the interaction
among these four is hard to describe. I’ve worked through this complexity more
completely in the appendix. But for now, it is enough to see that they are linked andthat,in a sense,they combine to produce the regulation to which our pathetic dot issubject in any given area.
The same model describes the regulation of behavior in cyberspace.

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Law regulates behavior in cyberspace. Copyright law, defamation law, and obscenity laws all continue to threaten ex post sanction for the violation of legal rights.
How well law regulates, or how efficiently, is a different question: in some cases itdoes so more efficiently, in some cases less. But whether better or not,law continues
to threaten a certain consequence if it is defied. Legislatures enact;9 prosecutors
threaten;10 courts convict.11
Norms also regulate behavior in cyberspace. Talk about democratic politics inthe alt.knitting newsgroup, and you open yourself to flaming; “spoof ” someone’s
identity in a MUD, and you may find yourself “toaded”;12 talk too much in a discussion list, and you are likely to be placed on a common bozo filter. In each case, a
set of understandings constrain behavior, again through the threat of ex post sanctions imposed by a community.
Markets regulate behavior in cyberspace. Pricing structures constrain access, andif they do not, busy signals do. (AOL learned this quite dramatically when it shiftedfrom an hourly to a flat rate pricing plan.)13 Areas of the Web are beginning tocharge for access, as online services have for some time. Advertisers reward popularsites; online services drop low-population forums. These behaviors are all a functionof market constraints and market opportunity. They are all,in this sense, regulationsof the market.
And finally, an analog for architecture regulates behavior in cyberspace—code. The
software and hardware that make cyberspace what it is constitute a set of constraints
on how you can behave. The substance of these constraints may vary, but they are experienced as conditions on your access to cyberspace. In some places (online services
such as AOL, for instance) you must enter a password before you gain access; in otherplaces you can enter whether identified or not.14 In some places the transactions you
engage in produce traces that link the transactions (the “mouse droppings”) back toyou; in other places this link is achieved only if you want it to be.15 In some places you
can choose to speak a language that only the recipient can hear (through encryption);16 in other places encryption is not an option.17 The code or software or architecture or protocols set these features; they are features selected by code writers; they
constrain some behavior by making other behavior possible, or impossible. The code
embeds certain values or makes certain values impossible. In this sense, it too is regulation, just as the architectures of real-space codes are regulations.
As in real space ,t h en , these four modalities regulate cyberspace. The same balance
exists. As William Mitchell puts it (though he omits the constraint of the market):Architecture, laws, and customs maintain and represent whatever balance has
been struck [in real space]. As we construct and inhabit cyberspace communities,
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.18

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Laws, norms, the market, and architectures interact to build the environmentthat “Netizens” know. The code writer, as Ethan Katsh puts it, is the “architect.”19
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 realspace values be carried over to the world of cyberspace? How might the mix bechanged if change is desired?

O N

G O V E R N M E N T S

T O

R E G U L A T E

A N D

W A Y S

I’ve described four constraints that I’ve said “regulate” an individual. But these separate constraints obviously don’t simply exist as g ivens in a social life. They are neither found in nature nor fixed by God.Each can be changed,though the mechanics
of changing each is complex. Law can have a significant role in this mechanics, andmy 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 seem necessary. One response might be to increase thepenalty for car radio theft until the risk faced by thieves made it such that this crime
did not pay. Life in prison for radio theft. 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 is not the only possible technique. A se cond might be tochange the radio’s architecture. Imagine that radio manufacturers program radios towork only with a single car—a security code that electronically locks the radio to thecar, such that if the radio is removed,it will 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 r adio’s theft, and like the threatened punishment of life
in prison, it could be effective in stopping the radio-stealing behavior.
Thus, the same constraint can be achieved through different means, and the different means are differently costly. The threatened punishment of life in prison may
be fiscally more costly than the change in the architecture 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 efficiency may also align with the expressive content of law—a punishment so extreme
would be barbaric 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, in this example or in others. Take theSupreme Court’s hypothetical example of life in prison for a parking ticket.20 It is
likely that whatever code c onstraint might match this law constraint, the law constraint would be more efficient (if reducing parking violations were the only aim).

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There would be very few victims of this law before people conformed their behavior
appropriately. But the “efficient result” would conflict with other values. If it is barbaric to incarcerate for life for the theft of a radio, it is all the more so as a penalty
for a parking violation. The regulator 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 answ er 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 these other regulators. It typically ignores how law canaffect their regulation. Many speak as if law must simply take the other three constraints as given and fashion itself to them.21
I say “as if ” because today it takes only a second’s thought to see that this narrowness is absurd. There were times when these other constraints were treated as
fixed—when the constraints of norms were said to be immovable by governmental
action,22 or the market was thought to be essentially unregulable,23 or the cost ofchanging real-space code was so high as to make the thought of using it for regulation absurd. 24 But we see now that these constraints are plastic.25 That they are, as
law is, changeable, and subject to regulation.
The examples are obvious and many. Think first about the market: talk of a “freemarket” notwithstanding, there is no more heavily regulated aspect of our life.26 The
market is regulated by law not just in its elements—it is law that enforces contracts,
establishes property, and regulates currency—but also in its effects. The law uses
taxes to increase the market’s constraint on certain behaviors and subsidies to reduce its constraint on other behaviors. We tax cigarettes in part to reduce their consumpti on , but we subsidize tobacco production to increase its su pp ly. We tax
alcohol to reduce its consumption. We subsidize child care to reduce the constraint
the market puts on raising children. In many such ways the constraint of law is used
to change the constraints of the market.
Law can also change the regulation of architecture. Think about the Americans
with Disabilities Act (ADA).27 Many of the “disabled” are cut off from access tomuch of the world. A building with only stairs is a building that is inaccessible to aperson in a wheelchair. The stairs are a constraint on the disabled person’s access tothat building. But the ADA in part aims to change that constraint by requiringbuilders to change the design of buildings so that the disabled are not excluded.
Here is a regulation of real-space code, by law, to change the constraint that realspace code creates.
Other examples get 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.28 Paris was rebuilt, with wide boulevards and multiple passages, making it impossible for insurgents to take control of the city.

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•

•

•

•

•

•

Every schoolchild learns of Lafayette’s design to make an invasion of Washington difficult. But more interesting is the placement of the White House
relative 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 president by making it marginally more difficult for them to connect—and
thereby more difficult for the executive to control the legislature.
This same idea has influenced the placement of constitutional courts in Europe. Throughout Europe constitutional courts were placed in cities other thanthe 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 theconstraint of geography: placing constitutional courts far away from legislatures and executives was meant to minimize both the pressure the latter twobodies 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 orstreets 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 ora norm against driving too fast. But they operate by modifying architecture sothat architecture regulates.
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 publicbeaches.29 That was regulation through architecture,invidious yet familiar.
Nor is it limited to governments.A major American airline noticed that passengers on early Monday morning flights were frustrated with the time it
took to retrieve bags from the plane. They were much more annoyed thanother passengers, even though it took no longer than average to retrieve thebags from these flights. The company began parking these flights at gates farther away from baggage claim, so that by the time the passengers arrived atbaggage claim, their bags were there. Frustration with the baggage handlingsystem was eliminated.
A large hotel in an American city received many complaints about the slowness of its elevators. It installed mirrors next to the elevator doors. The complaints ended.

In each example, a constraint of architecture is changed so as to realize a collective or social end. As a sign above one of the portals at the 1933 Chicago World’s Fair
put it (though it was speaking of science): “Science Explores: Technology Executes:
Man Conforms.”30
Law can change social norms as well, though much of our constitutional jurisprudence seems dedicated to forgetting just how.31 Education is the most obvious
example. As Thurgood Marshall put it, “Education is not the teaching of the three
R’s.Education is the teaching of the overall citizenship, to learn to live together with

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fellow citizens,and above all to learn to obey the law.”32 Education is,in part at least,a process through which we indoctrinate children into certain norms of behavior—
we teach them how to “say no” to sex and drugs. We try to build within them a senseof what is correct. This sense then regulates them to the law’s end.
Plainly, the content of much of this education is regulated by law. Conservatives
worry, for example,that by teaching sex education we change the norm of sexual abstinence. Whether that is correct or not,the law is certainly being used to change thenorms of children. If conservatives are correct, the law is eliminating abstinence. If
liberals are correct, the law is being used to instill a norm of safe sex. Either way,
norms have their own constraint, and law is aiming to change that constraint.
To say that law plays a role is not to say that it always plays a posit ive role. The
law can muck up norms as well as improve them, and I do not claim that the latter
result is more common than the former.33 The point is just to see the role, not topraise or criticize it. The aim is descriptive; the normative comes later.
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(whether normative or material) that the regulator must recognize? We can represent the point through a modification of the second figure:

The point should be familiar, and the examples can be multiplied.
Seatbelts: The government may want citizens to wear seatbelts more often.34 It
could pass a law to require the wearing of seatbelts (law regulating behavior di-94

C O D E

rectly).Or it could fund public e ducation campaigns to create a stigma against those
who do not wear seatbelts (law regulating social norms as a means to regulating behavior). Or it could subsidize insurance companies to offer reduced rates to seatbelt
wearers (law regulating the market as a way of regulating behavior). Finally, the law
could mandate automatic seatbelts, or ignition-locking systems (changing the codeof the automobile as a means of regulating belting behavior). Each action might besaid to have some effect on seatbelt use; each has some cost. The question for thegovernment is how to get the most seatbelt use for the least cost.
Discrimination against the disabled: The disabled bear the burden of significant social and physical barriers in daily life.35 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 so as to change social norms (regulating norms
to regulate behavior). It could subsidize companies to hire the disabled (regulating themarket to regulate behavior). It could regulate building codes to make buildings moreaccessible to the disabled (regulating “natural” or real-space codes to regulate behavior). Each of these regulations would have some effect on discrimination and would
have a cost. The government would have to weigh the costs against the benefits and select the mode that regulates most effectively.
Dru gs : The government is obsessed with reducing the con su m ption of illicit
drugs. Its main strategy has been direct regulation of behavior through the threat ofbarbaric p rison terms for violation of the drug laws. This policy has obvious costs
and non-obvious benefits. But most interesting for our pur poses 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 inwhich an individual lives.36 These are what I’ve called social norm constraints: standards of appropriate behavior enforced by the sanctions of a community—whether
through shame, exclusion, or force.
Just as government can act to strengthen these social norm constraints,it should
be obvious that government can also act to weaken them.37 One way to do this is by
weakening the communities within which these norms operate. This,says Meares,iswhat the extreme sanctions of the criminal law do.38 In their extremity and effect,
they undermine the social structures that would support this social policy. This is anindirect effect of the direct regulation of 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 consumption of drugs (regulatingsocial norms to regulate behavior). It seizes drugs at the border, thereby reducing the
supply, increasing the price,and presumably reducing demand (regulating the market to regulate behavior). And at times it has even (and grotesquely) regulated the“code” of drugs (by, for example, spraying marijuana fields with paraquat), making

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them more dangerous and thereby increasing the constraint on their consumption.39
All of these together influence the consumption of drugs. But as advocates of legalization argue, they also influence the incidence of other criminal behavior as well.
The policy maker must assess the net effect—whether on the whole these regulations reduce or increase social costs.
Abortion: One final example will complete the account. Since Roe v Wade, theCourt has recognized a woman’s constitutional right to an abortion.40 This right,
however, has not stopped government from seeking to eliminate or reduce the number of abortions. Again, the government need not rely on direct regulation of abortion (which under Roe would be unconstitutional). It can instead use indirect means
to the same end. In Rust v Sullivan, the Court upheld the power of the government
to bias the provision of family planning advice by forbidding doctors in “government-funded” clinics from mentioning abortion as a method of family planning.41
This is a regulation of social norms (within the social structure of medical care) toregulate behavior. In Maher v Roe, the Court upheld the right of the government selectively to disable medical funding for abortion.42 This is the use of the market toregulate b ehavior. And in Hodgson v Minnesota, the Court upheld the right of thestate to force minor women to wait forty-eight hours before getting an abortion.43
This is the use of real-space code (the constraints of time) to regulate access to abortion. In all these ways, Roe notwithstanding, the government can regulate the behavior of women wanting abortions.
In each of these examples, law functions in two very different ways.44 When its operation is direct,it tells individuals how to behave and threatens punishment if they
deviate from that behavior. When its operation is indirect, it aims at modifying oneof the other structures of constraint.45 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.
When we see regulation in this more general way, we can see more clearly how
the unregulability of cyberspace is contingent. We get a stronger sense of how thestate could intervene to make regulation work. And we should also get a sense of theincreased dangers presented by this more expansive sense of regulation. In particular, we should have a stronger sense of the danger it presents to constitutional values. The next section considers one such threat.

T H E

P R O B L E M S

O F

I N D I R E C T I O N

In 1985, after years of inaction, Congress passed the Low Level Radioactive Waste
Policy Amendments Act to deal with the problem of nuclear waste.46 Someone
needed to take and store nuclear waste. After sufficient prodding by the government,a number of states formed a compact, which Congress then ratified, implementing

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C O D Ea 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 onjust one part. To induce states to follow federal guidelines for regulating nuclear
waste, Congress gave them a choice: either enact certain regulations or “take title” tothe spent nuclear fuel. This was a “your money or your life” regulation, for the fuelto which the states would take title was not an asset but a great liability. In a very
heavy-handed way, Congress was essentially forcing states to pass the regulations it
wanted.
The Supreme Court struck down this part of the law. In effect, the Court 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 it did
not have the power to order states to enact laws. Indirection here was not allowed.
This case—New York v United States—does not stand for the broad principle thatgovernment must regulate only directly, or even for the principle that indirect regulation generally is disfavored. The case was focused quite narrowly on the questionof indirection as it involved the states. The most New York stands for is the idea thatstates, as independent sovereigns deserving of special constitutional respect, cannot
be co-opted to the federal government’s ends—that when the federal government
has a program it wants to car ry out, it must put its own name behind it.
But while New York doesn’t establish a general constitutional principle, it doessuggest why indirection should be a more general concern. And this general concern
is my focus here.
Indirection misdirects responsibility. When a government uses other structuresof constraint to effect a constraint it could impose directly, it muddies the responsibility for that constraint and so undermines political accountability. If transparency
is a value in constitutional government,indirection is its enemy. It confuses responsibility and hence confuses politics.
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.)47 Before 1988 these clinics gave advice ona wide range of birth-related topics, including abortion. Doctors in family planning
clinics would advise their patients about abortion 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 amethod 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.”48
The aim of this regulation was clear: to reduce the incidence of abortion. It did
this by using doctors to steer patients away from abortion.A doctor has a great dealof power over a patient in a context like this; the patient would most likely understand the doctor to be recommending against abortion.

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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 to bury its policy choice in the words of doctors. It thereby could tradeon the professional authority of the doctors 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, thegovernment 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 political broadcast from the government. She is most likely to hear it as a
medical opinion. Not only is there a confusion about who is responsible for theopinion 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; thecase proving Justice Scalia’s rule that any issue gets distorted once it gets near thequestion of abortion.49 But my argument here doesn’t depend up on whether Rustwas 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) thatthe property covered by the deed could not be sold to people of a particular r ace.
The purpose of these provisions was clear: to effect and preserve segregation. Theiruse was extensive. It was estimated, for example, that when Shelley v Kra em er50
struck these provisions down as unconstitutional under the equal protection clause,
25 percent of the properties in south Chicago had been prohibited from sale toAfrican Americans.51
As awful as such provisions were, they had a certain integrity. They clearly statedtheir purpose and were transparent about the values they affirmed. No one could
pretend that the segregation they effected was somehow an accidental by-product ofdecisions made elsewhere. Although they were private covenants,they were enforcedby the state and, indeed, derived their meaning from the state. They said: this society is racist.
When the Court struck these provisions down, however, the question became
what would replace them. Few expected that the attitudes behind these covenants
would suddenly disappear because of a single court judgment. So when the Court
ended direct segregation, we should have expected indirect segregation to emerge toreplace it.
Sure enough,after 1948 local communities shifted their technique for preserving
segregation. Rather than covenants, they used architecture. Communities were designed to “break the flow” of residents from one to another. Highways without easy
crossings were placed between communities. Railroad tracks were used to divide. A
thousand tiny inconveniences of architecture and zoning replaced the express preferences of covenants. Nothing formally prohibited integra ti on . But informally,much did.52

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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 segregation directly, they used zoning laws—geographical architecture, or real-space code—toeffect it indirectly. They built their communities and designed their streets to makeit hard for integration to occur. The tiny inconveniences of zoning regulations succeeded in keeping communities 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 consequence. The continuing
segregation of these communities is described as the product of “choice.” Individuals choose to live in one neighborhood rather than another. In a strict sense, that iscorrect, but their choices are made in the face of costs that the state has imposed. It
is easier to remain segregated, so people choose to do that. But it is only easier because government has moved mountains to make it that way.
Here the government is regulating indirectly, by using the structures of realspace code to effect its ends, but this regulation,again,is not seen as regulation. Herethe government gets an effect at no political cost. It gets the benefit of what would
clearly be an illegal and controversial regulation, that is, without even having to admit any regulation exists.
In all three cases, the government is commandeering the power of anothermodality—another structure of constraint—to effect its own ends.53 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 toreduce crime; it does so indirectly, by regulating the architecture of streets. No one
would think that regulation improper. Nor does all such regulation hide its pedigree.
Think again about speed bumps. They are examples of indirect regulation. Like awinding road, they use the code of streets to keep down the speed of a car. But noone is fooled about the source of this regulation; no one believes the bumps are a ccidental.
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 constitutional
democracy its regulations should be public. And thus, one issue raised by the practice of indirect regulation is the general issue of publicity. Should the state be permitted to use nontransparent means when transparent means are available?

W H E R E

T H I SL E A D S

After I published an essay in The Industry Standard, arguing that “code is law,”54 thefollowing letter was sent to the editor:
Typical for a Harvard Law Professor. . . . Lessig misses the entire forest while
dancing among the trees. . . . While his riff on West Coast Code (from Silicon

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Valley Programmers) 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
mechanisms and the efforts of government agencies to control the behavior of all
citizens through force of law.
So long as the creators and purveyors of West Coast Code (no matter how selfish, monopolistic, demonic or incompetent they may be) do not carry guns andbadges,I will choose them over the enforcers of East Coast Code any time.55

Whether or not I’ve missed the “real difference” between code and law, the genius in this letter is that its author clearly sees the real similarity. The author (thepresident of an Internet-related business) understands that “private enterprise” tries
to “control the behavior of their customers.” He w rites of “market mechanisms” toachieve 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 just has his own favorites(corporate executive that he is).
What this author sees is what we all must see to understand how cyberspace isregulated, and to see how law might regulate cyberspace. I’ve argued in this chapterthat government has a range of tools that it uses to regulate. Cyberspace expandsthat range. The code of cyberspace is becoming just another tool of state regulation.
Indirectly, by regulating code writing, the government can achieve regulatory ends,
often without suffering the political consequences that the same ends, pursued directly, would yield.
We should worry about this. We should worry about a regime that makes invisible regulation easier; we should worry about a regime that makes it easier to regulate. We should worry about the first because invisibility makes it hard to resist bad
regulation; we should worry the second because we don’t yet—as I argue in part 3—
have a sense of the values put at risk by the increasing scope of efficient regulation.
But the power that government has over cyberspace hangs on an important feature of cyberspace that I have not yet described. We can no longer take that feature for
granted—either in this argument or in the world. One feature of the code determinesmuch about the power of government. It is the topic of the chapter that follows.

E I G H Tt hel imits

in

op en

code

I’ve t ol d a st or y of h ow r egul at ion wor ks and of incr easing r egul abil it y—of changes in the architecture of the Net that will better enable government’s control. These changes, I have argued, will emerge even if government does nothing.
They are the by-product of changes made to enable e-commerce.
That was part 1. In this part ,I ’ve upped the stakes. My aim has been to give a deeper
account of the values built into a particular architecture of the Net, and thus a deeper
understanding of the ways in which government might act to shape those values.
But now the story changes. I want to introduce a complication on this road toregulability. While relatively new in Internet time, this complication promises (orthreatens) to bring about an important change in the character of the Net and thefeasibility of regulating it.
This complication is free software, or open source software or, more simply,
open code.1 Put too simply, everything I have said about the regulability of behavior in cyberspace—or more specifically, about government’s ability to affect regulability in cyberspace—crucially depends on whether the application space ofcyberspace is dominated by open code. To the extent that it is, government’s power
is decreased; to the extent that it remains dominated by closed code, government’s
power is preserved.2 Open code, in other words, can be a check on state power.
This is a lot to convince you of in a single chapter—especially since the conclusion will seem to be an important reversal on much that I have argued so far. To see
the point, we must back up and understand a bit more about the nature of the code
space that government might regulate and the nature of the actors who might control that space.
C O D E

T H E

N E T

I’ve spent lots of time talking about the code of cyberspace. For those who know
something about code in cyberspace (and who are still with me here), what I’ve said

the limits in open code101

will have been quite frustrating. As they know (and though they doubt it,as I know),there are many different kinds or layers of code on the Internet. When we talk about
regulating code, it matters deeply which code we are describing.
The Internet is defined by a set of protocols together referred to as TCP/IP. Thatlabel refers to a large number of protocols that feed different “layers” of the network.
The standard model for describing layers of a network is the open systems interconnect (OSI) reference model. It describes seven network layers, each representing a“function performed when data is transferred between cooperating applications
across” the network. But the TCP/IP suite is not as well articulated. According to
Craig Hunt,“most descriptions of TCP/IP define three to five functional levels in the
protocol architecture,” though it is simplest to describe four functional layers in a
TCP/IP architecture.3 From the bottom o f the stack up, we can call these the datalink, network, transport, and application layers.4
Very few protocols operate at the lowest layer—the data link layer—since that
handles local network interactions exclusively. 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 thenext layer up—the transport layer—two different protocols dominate, TCP and
UDP. These negotiate the fl ow of data between two network hosts. (The difference
between the two is reliability—UDP offers no reliability guarantee.)
These three layers are the essential plumbing of the Internet, hidden in the Net’s
walls. (The faucets work at the next layer; be patient.)
The protocols together function as a kind of odd UPS. Data are passed from theapplication to the transport layer. There the data are placed in a (virtual) box and a(virtual) label is slapped on. That label ties the contents of the box to particular
processes. (This is the work of the TCP or UDP protocols.) That box is then passed
to the network layer, where the IP protocol puts the package into another package,with its own label. This label includes the origination and destination addresses.
That box then can be further wrapped at the data link layer, depending on thespecifics of the local network (whether, for example, it is an Ethernet network).
The whole process is a bizarre packaging game: a new box is added at each layer,
and a label on each box describes the process at that layer. At the other end, thepackaging process is reversed: like a Russian doll, each package is opened at theproper 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.”5 These include the most familiar network application protocols,such as FTP (file transfer protocol, a protocol for transferring files), SMTP (simple
mail transport protocol, a protocol for transferring mail), and HTTP (hyper texttransfer protocol, a protocol to publish and read hypertext documents across theWeb). These are rules for how a client (your computer) will interact with a server(where the data are), and the other way around.
These four layers of protocols, then, constitute “the Internet.” Building on simple
blocks, the system makes possible an extraordinary range of interaction. It is per-102

C O D Ehaps not quite as amazing as nature—think of DNA—but it is built on the same
principle: keep the elements simple, and the compounds will astound. 6
When I speak about regulating the code, I do not mean that we regulate the
TCP/IP protocols. (Though in principle, of course,they could be regulated,and others have suggested that they should be regulated.)7 Instead, I’ve had in mind a different part of the code of cyberspace—the part that TCP/IP connects. In the termsof network theory, I’ve had the “ends” in mind.8 Not the code at its most basic levelof Internet exchange, but the applications (both in hardware and software) that use
or implement those protocols.
A different metaphor may help you see the difference. Tim Wu likens the Internet to the electric grid: TCP/IP is the architecture for that grid; programs then “pluginto” TCP/IP, or into the Internet. At the top layer, the protocol defines what the plug
looks like; lower down, it governs how power flows.9
This is a helpful picture. Just as a very large number of appliances can be plugged
into the electric grid, so too can a very large number of programs use the Internet.
Before doing so, this wide variety need only ag ree on a simple protocol of data exchange.
My focus is on the code that plugs into the Internet.I will call that code the “application 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, whatever elements you want. This application space code
would be the target of regulation in the story of regulability that I have told so far.
The question in this chapter is: What is the character of that code that makes it susceptible to regulation?

AS H O R T
T H E

H I S T O R Y

O F

C O D EN E T

In the beginning, of course, there were very few applications on the Net. The Net
was no more than a protocol for exchanging data,and the original programs simply
took advantage of this protocol. The file transfer protocol (FTP) was born early in
the Net’s history;10 the electronic message protocol (SMTP) was born soon after. It
was not long before a protocol to display directories 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 theWorld Wide Web.
Each protocol spawned many applications. Since no one had a monopoly 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 number of browsers.11
The protocols were open standards, gaining their blessing from the standards bodies such as the Internet Engineering Task Force (IETF) and W3C. Once a protocol
was specified, programmers could build programs that utilized it.

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Much of the software implementing these protocols was “open,” at least initially—that is, the source code for the software was available along with the object
code.* 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 thatmakes a web page appear as it does is called the hyper text markup language, orHTML.† With HTML, you can specify how a web page will appear, and to what it
will be linked.
The original HTML was proposed in 1991 by the CERN researcher Tim
Berners-Lee12 It was designed to make it easy to link documents at a research facility, but it quickly became obvious that documents on any machine on the Internet
could be linked. Berners-Lee and Cailliau 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 starting building web pages and linking them to others. HTML became one of
the fastest-growing computer languages in the history of computing.
Why? One imp ortant reason was that HTML was always “open.” Even today, on
the two major browsers still in distribution, you can always 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 ofa 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 look under the hood of an HTML document and learn how the author produced it.
Openness—not property or contract but free code and access—created theboom that gave birth to the Internet that we now know. And it was this boom thatthen attracted the attention of commerce. With all this activity, commerce rightly
reasoned, surely there was money to be ma de.
Historically the commercial model for producing software has been different.13 Though the history began even as the open code movement con ti nu ed ,commercial software vendors were not about to produce “free” (as in open source)
software. Commercial vendors produced software that was closed—that traveled*Source code is the code that programmers write. It is close to a natural language, but not quite a natural language.A program is written in source code, but to be run it must be converted into a language themachine can read. Some source code is converted on the fly—BASIC, for example, is usually interpretedby the c omputer as the computer runs a BASIC program. But most sour ce code—or the most powerfulsource code—is “compiled” before it is run. The compiler converts the sour ce code into either assembly
code (which mavens can read) or object code (which only geniuses and machines can read). Object code
is machine-readable. It is an undifferentiated string of 0s and 1s that instructs the machine about the tasks
it is to perform. Programmers do not directly write object code, even if some are able to decipher it; programmers write source code. Object code speaks to the computer; source code speaks to humans and tocomputers (compilers);assembly code speaks to mavens and computers.
† Hyper text 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 c omputer.

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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 Windows 95, which came bundled Internet-savvy—commercial software vendors began
producing “application space” code. This code was increasingly connected to the
Net—it increasingly became code “on” the Internet—but for the most part it remained closed.14 And as we prepare to weather Y2K, most of the most significant
software on the market is closed code that has nonetheless found a way to connect
to the Net.
It is this balance that we need to track—the balance between open and closed
code on the Net. Most of the application space that ordinary users now use is closed.
There are many exceptions: Apache, still the number-one server on the Internet
whether users realize it or not, and SENDMAIL, still the most widely used programfor forwarding mail, are both open code. But if we include within the application
space the operating systems that connect to the Net, application space code on the
Net is closed.

O P E N I N GC O D E

T H E

N E T

But this balance is changing. From the beginning the trend to enclose code on theInternet has bothered many—some because they believe closed code is less efficientthan open code, others b ecause they believe closed code interferes with importantvalues of the Internet.
Richard Stallman is in the latter camp. In 1985 Stallman began the Free Software Foundation, with the aim of fueling the growth of open and free software on
the Net. A MacArthur Fellow who gave up his career to commit himself to thecause, Stallman has devoted his life to “free” software. In 1984, years before the Net
really took off, he began developing an open source operating system .G N U* was tobe the basis of an open code world where, from the operating system on up, code
was open.
Despite its many admirers, GNU was a bit ahead of its time. In the world before
easy Internet access,it was hard to coordinate a major project, such as developing an
operating system. Early in the 1990s, after an injury had slowed Stallman’s progress,
a different project, devoted to similar ideals, overtook GNU.
In 1991, an undergraduate at the University of Helsinki posted on the Internet
the kernel of an operating system. This undergraduate was Linus Torvalds; his kernel was the first step in producing Linux. He posted his kernel and invited the world
to help him turn it into an operating system—a free and open operating system thatwould come with its source code bundled alongside. 15*GNU is a recursive acronym. The idea was to build an operating system that was not Unix. GNU
stands for “GNU’s Not Unix.” Cute,no?

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People took up the challenge, and slowly, through the early 1990s,they built thiskernel into an operating system. They did it in part by marrying Linux to Stallman’s
GNU (which is why it may be most accurate to call it GNU/Linux). But whatever its
genealogy, by 1998 it had become apparent to all that Linux was 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.
GNU/Linux is amazing in many ways. It is amazing first because it is theoreticallyimperfect but practically superior. Linus Torvalds rejected what computer science told
him was the ideal operating system design,16 and instead built an operating systemthat was designed for a single processor (an Intel 386) and not cross-platform-compatible. Its creative development, and the energy it inspired ,s l owly turned GNU/Linux
into an extraordinarily powerful system. As of this writing, it has been ported to manydifferent chip platforms—it can run on the Intel chip, the PowerPC chip (used by Apple), and the Sun SPARC chips. Although initially designed to speak only one language,GNU/Linux has become the lingua franca of open source operating systems.
What makes a system open source is a commitment among its developers tokeep its core code public—to keep the hood of the car unlocked. That commitment
is not just a wish. Stallman encoded it in a contract that sets the terms that control
the future use of much open source software. This is the Free Software Foundation’s
general public license (GPL), which requires that any code licensed with GPL (asLinux is) keep its source free. GNU/Linux was developed by an extraordinary collection of hackers worldwide only because its code was open for others to work on.
Its code, in other words, sits in the commons.17 Anyone can take it and use it as
he wishes. Anyone can take it and come to understand how it works. The code of
GNU/Linux is like a research program whose results are always published for others
to see. Everything is public; anyone, without having to seek the permission of anyone else, may join the project.
Although the GNU/Linux project is the most important element in the futureof open code on the Internet, it is not the only one. Another critical example is
Netscape, which in 1998 dedicated its code to the public by giving it over to acompany called Mozilla. Anyone can download the Netscape source code from
Mozilla; anyone can take it and improve it. With the backing of a company like
Netscape and the support of companies like IBM for Linux, it appears quite certain that the near future of application space code on the Internet will in important ways be open source.18

R E G U L A T I N GO P E NS O U R C E

So imagine a future in which a significant portion of the application space code isopen code. What would that mean for regulability? How would that affect the story
I’ve told of the increasing power of the state to order cyberspace?

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C O D EIn chapter 4, I sketched examples of government regulating code. But thinkagain about those examples: How does such regulation work?
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 code
writers can be controlled. If the state tells the phone company to do something, thephone company is not likely to resist. Resistance would bring punishment; punishment is expensive; phone companies, like all other companies, want to reduce theircost of doing business. If the state’s regulation is rational (that is, effective),it will set
the cost of disobeying the state above any possible benefit. If, in addition, the targetof regulation is within the reach of the state,and a rational actor, then the regulation
is likely to have its effect. CALEA’s regulation of the network architecture for t elephones is an obvious example of this (see chapter 5).
An unmovable, and unmoving, target of regulation, then, is a good start to regulability. And this statement has an interesting corollary: regulable code is closed
code. Think again about telephone networks. When the government induces thetelephone networks to modify their network software, users have no choice about
whether to adopt this modification or not. You pick up the phone, you get the dial
tone the phone company gives you. No one I know hacks the telephone company’scode to build a different network design. The same with the V-chip—I doubt thatmany people would risk destroying their television by pulling out the chip, and I am
certain that no one re-burns the chip to build in a different filtering technology.
In both cases the government’s regulation works because when the target of theregulation complies, customers can do little but accept it.
Open code is different. We can see something of the difference in a story told by
Netscape’s legal counsel, Peter Harter, about Netscape and the French.19
I’ve described SSL, Netscape’s protocol for exchanging encrypted data;it permits
secure exchange between a browser and a server. The French were not happy withthe security that SSL gave. They wanted to be able to crack SSL transactions. So they
requested that Netscape modify SSL to enable their spying.
There are plenty of constraints on Netscape’s ability to modify of SSL—not theleast of which being that Netscape has given SSL over to the public, in the form of apublic standard. But assume for a second that it had not.Assume Netscape really did
control the standards for SSL and in theory could modify the code to enable French
spying. Would that mean that Netscape could comply with the French demand?
No. Technically, it could comply by modifying the code of Netscape Communicator and then posting a new module that enabled hacking by a government. But
just because it posts such a module does not mean it will be adopted. Since
Netscape’s code is open code, users take only what they want. Although Netscape
could offer a feature that the French government wants,there is no reason to believethat users would want this same feature. Another supplier would undoubtedly provide an SSL module without the alteration demanded by the French government.

the limits in open code107

The point is simple, but its implication profound. To the extent that code is open
code, the power of government is constrained. Government can demand, government can threaten, but when the target of its regulation is plastic, it cannot rely on
its target remaining as it wants.
Say you are a Soviet propagandist, and you want to get people to read lots of information about Papa Stalin. So you declare that every book published in the Soviet
Union must have a chapter devoted to Stalin. How likely is it that such books will actually affect what people read?
Books are open source software: they hide nothing; they reveal their source—
they are their source! A user or adopter of a book always has the choice to read only
the 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 the reader’s power in this respect.
The same idea liberates open source code. The government’s rules are rules
only to the extent that they impose restrictions that adopters would want. The
government may coordinate standards (like “drive on the right”), but it certainly
cannot impose standards that constrain users in ways they do not want to be constrained. This architecture, then, is an important check on the government’s regulatory power. Open code means open control—there is control, but the user isaware of it.
Closed code functions differently. With closed code, users cannot easily modify
the control that the code comes packaged with. Hackers and very sophisticated programmers may be able to do so, but most users would not know which parts wererequired and which parts were not.Or more precisely, users would not be able to see
the parts required and the parts not required because the source code does not comebundled with closed code. Closed code is the propagandist’s best strategy—not a
separate chapter that the user can ignore, but a persistent and unrecognized influence that tilts the story in the direction the propagandist wants.

W H E R E

T H I SL E A D S

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 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 architecturefrom unregulable to regulable.
The final step in this progression of regulability is a constraint that is only now
becoming significant. Government’s power to regulate code, to make behavior
within the code regulable, depends in part on the character of the code. Open codeis less regulable than closed code; to the extent that code becomes open, government’s power is reduced.

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This is not, obviously, an absolute claim. I am discussing relative, not absolute,
regulability. Even with open code, if the government threatens punishments that are
severe enough, it will induce a certain compliance. And even with open code, thetechniques of identity, tied to code that has been certified as compliant, will still give
government plenty of power. Thus, much of the argument from part 1 sur vives thispoint about open code—if the world becomes certificate-rich, regulability still increases.*
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 Barlow puts it,they are thevalues of a certain bug being programmed into the architecture of the Net—a bugthat inhibits the power of government to control the Net perfectly, even if it does notdisable that power entirely.
For some, the objective is to build code that disables any possible governmental
control. That is not my objective. I certainly believe that government must be constrained, and I endorse the constraints that open code imposes, but it is not my objective to disable government generally. As I’ve argued already, and as the next part makes
plain, some values can be achieved only if government intervenes. Government has arole, even if not as substantial a role as it would wish. We need to understand this role,
as well as how our values might be advanced in the context of the Web.
One constraint seems clear in this account. As I argue more extensively later inthe 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 Information Act for network regulation. 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 ofgovernment. But whether or not one is for transparency generally, my aim so far isjust 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 defeating the power to regulate, but changing it. 20*Another constraint would arise ifmore code were burned into hardware rather than existing as software. Then, even if the code were open,it would not be modifiable.I am grateful to Hal Abelson for thispoint.

P A R T

T H R E E

a p p l i c a t i o n s

Nature doesn’t determine cyberspace. Code does. Code is not constant. It changes. It
is changing now in a way that will make cyberspace more regulable. It could change
in a way that makes cyberspace less regulable. How it changes depends on the code
writers. How code writers change it could depend on us.
If we do nothing, the code of cyberspace will change. The invisible hand willchange it in a predictable way. To do nothing is to embrace at least that. It is to accept the changes that this change in code will bring about. It is to accept a cyberspacethat is less free, or differently free, than the space it was before.
But then, how should the future develop? What values should the space have?
I’ve emphasized the need for choice but have done little to show what that choiceshould be.
In this part, I practice that choice. I begin with a technique that is familiar toAmerican constitutionalists in cases where constitutional law confronts changed circumstances. This technique, which I call translation, decides the present in terms of
the past. Its aim is to choose in a way that is faithful to the choices of the past, totranslate the commitments of the past into a fundamentally different context. Just as
a language translator constructs a text that is different from the source but has thesame meaning as the source, so too does the constitutional translator construct anapplication that,though different from the original application,has the same meaning in the current context as the original did in its context.
Translation will guide in important cases. It will show us how we can go on, consistent with traditions we respect. But in the cases I focus on most extensively, trans-

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lation alone will not be enough; the past will not resolve the future. The questions
raised by the future are issues that were not decided in the past.
These are the latent ambiguities that I spoke of at the start, illustrated withsearches by worms. My argument in part 3 is that these cases of ambiguity will force
us to choose where the framers did not. Cyberspace will make the necessity of thischoice patent.

N I N Et r a n s l a t i o n

At t he h eight of our l ast war on dr u gs—Pr o h ibit ion , in t h e l at e 1920s—t h efederal government began using a technique of police work that startled many but
proved quite effective. The technique was wiretapping.1 Telephones had become adominant mode of communication, life had just begun to move onto the wires, andin an effort to take advantage of the evidence that this new medium might yield,thegovernment, without warrants, began to tap phones.
Because law enforcement officials themselves were conflicted about the ethics ofwiretapping, taps were used sparingly. Nonetheless, for threats perceived to be extremely grave, the technique was deployed. Illegal alcohol, as the obsession of theage, was just such a threat.
The most famous of these taps led to the 1928 Supreme Court case Olmstead v
United States. The government was investigating one of the largest illegal liquor import,distribution,and sales organizations in the nation. As part of the investigation,
the government began to tap the telephones used by dealers and their agents. These
were private phones, but the taps were always secured without trespassing on theproperty of the targets.2 Instead, the taps were placed on the wires in places where
the government had rightful access to the phone lines. Though wiretapping was illegal under many states’ laws,the government had not illegally trespassed on the defendants’ property while tapping phones.
Using these taps, the government recorded many hours of conversations (775typewritten pages, according to Justice Louis Brandeis’s dissent)3, and it used theserecordings to convict the defendants in the case. The defendants challenged the useof these recordings, claiming that the government had violated the Constitution insecuring them. The Fourth Amendment protects “persons, houses, papers, and effects, against unreasonable searches and seizures,” and this wiretapping, the defendants argued, was a violation of their right to be protected from unreasonablesearches.

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Under then-existing law, it was plain that to enter the apartments of Mr. Olmstead and his accomplices and search them (at least while they were gone), the government investigators would have needed a warrant,that is,they would have needed
the approval of a judge or magistrate before invading the defendants’ privacy. This iswhat the Fourth Amendment had come to mean—that certain places (persons,houses,papers,and effects) 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.
We might pause to ask why. If we read the text of the Fourth Amendment 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 violat ed,and (b) no
Warrants shall issue, but upon probable cause, supported by Oath or affirmation,and particularly describing the place to be searched, and the persons or things to
be seized.

The Fourth Amendment is really two commands. (I’ve added “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 state a relationship between
the first part and the second part. And it certainly does not say that a search is unreasonable if it is not supported by a warrant. 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 someone entered your property and rifled through your stuff, that person 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
Even without a warrant, however, a trespassing police officer might have a number of defenses. These boil down to whether the search was “reasonable.” But there
were two important facts about this reasonableness. First, the determination of reasonableness was made by a jur y. Neighbors and peers of the officer judged whether
his behavior had been proper. Second, in some cases reasonableness was found as amatter of law—that is, the judge would instruct the jury to find that the search had
been reasonable.(For example, when the officer found contraband on the propertyof the defendant, whether there was sufficient suspicion before the search or not, thesearch was reasonable.)7
This regime created obvious risks for an officer before he searched someone’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.

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But the regime also offered insurance against this liability—the warrant. If theofficer secured a warrant from a judge before he made his search, the warrant immunized him against trespass liability. If he then found no contraband or his searchturned 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 uncertain, or wanted
to avoid all risk o f liability, he could first check his judgment by asking a judge. But
if the officer was sure, or wanted to hazard the gamble, then not getting a warrant
did not make the search automatically unreasonable. 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. Under
British rule judges had been appointed by the Crown, and by the time of the Revolution the Crown was the enemy. Having seen much abuse of the power to issue
warrants, the framers were not keen to give judges control in determining whether
the government’s searches were reasonable.
In particular (as I described in chapter 2),the framers had in mind some famous
cases in which judges and the executive had issued “general warrants” giving government officers the p ower to search generally for objects of contraband.9 In modern terms, these were “fishing expeditions.” Because the officers had warrants, they
could not be sued; because the judges were largely immune from suit,they could not
be su ed . Because no one could be su ed , there was a tem pt a ti on for abuse. The
framers wanted to avoid just such judge-made abuse. If there was to be immunity, it
would come from a jury, or from a successful search.
This is the origin of clause (b) of the Fourth Amendment. The framers requiredthat judges, when issuing warrants,name particularly “the place to be searched, andthe persons or things to be seized,” so that judges would not be able to issue warrants
of general power. The immunity of the warrant would be limited to particularpeople and places, and only when probable cause existed to issue the war rant.
This constitutional regime was designed to balance the people’s interests in p rivacy against the legitimate need for the government to search. The officer had an incentive to get a warrant (to avoid the risk of personal liability); the judge had a rulethat restricted the conditions under which he could issue a warrant; and together
these structures limited official invasions of privacy to cases that presented a strong
reason to invade.
So much is background. But notice what follows.
The original regime presupposed a great deal. Most obviously, it presupposed acommon law system of trespass law—it was the threat of legal liability from trespass
law that created the incentives for officers to seek warrants in the first place. This presupposition placed property at the core of the Constitution’s original protections.
Equally important, the r egime presupposed much about the technology of thetime. The Fourth Amendment focuses on trespass because that was the primary

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C O D Emode of searching at the time. If it had been possible simply to view the contents ofa house without going inside,the restrictions of the Fourth Amendment would havemade little sense. But the protections of the amendment did make sense as a way todraw the balance between government’s power to search and the people’s right toprivacy given the regime of trespass law and privacy-invading technologies that prevailed at the end of the eighteenth century.
Pre su ppositions—what is taken for granted or considered undebatable—change.10 How do we respond when such presuppositions change? How do we reada text w ritten against a background of certain presuppositions when those presuppositions no longer apply?
For Americans, or for any nation with a constitution some two hundred years
old, this is the central problem for constitutional interpretation. What if the state,for example, were simply to abolish rights against 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 to know just what
is kept there? Should the amendment 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, always competing for the
Court’s attention. One strategy is focused on what the framers or founders would
have done—the strategy of one-step originalism. The second 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 d efendants without any warrant, the Court had todecide whether the use of this kind of evidence was p ermissible or consistent withthe principles of the Fourth Amendment. The defendants said: the government
must get a warrant to tap phones. The government said: the Fourth Amendment
simply does not apply.
The government’s argument was quite simple. The amendment presupposedthat the government would be trespassing to search, and it was regulating the conditions under which officers could trespass. But because wiretapping is an invasionof privacy without a trespass, the government is able to tap the defendants’ phones
without ever entering their property; the amendment therefore does not apply. It
simply does not reach to protect invasions that are invasions without trespass.
The Supreme Court agreed. In an opinion written by Chief Justice William H.
(and former President) Taft, the Court followed the government.
The amendment does not forbid what was done here. There was no searching.
There was no seizure. The evidence was secured by the use of the sense of hearing and that only. . . . The language of the amendment cannot be extended andexpanded to include telephone wires, reaching to the whole world from the defendant’s house or office.12

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This conclusion was received with some surprise, and also with shock. Alreadymuch 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 system toprotect 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 notwithstanding, 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 the dissent written by Justice Brandeis (the re was also a dissent by Justices
Holmes,Stone,and Butler) had a different view. Like Taft,the focus was fidelity. But
his fidelity was quite differently conceived.
Brandeis acknowledged that the Fourth Amendment, as originally w ritten, applied only to trespass.14 But it did so, he argued, because when it was written trespass
was the t echnology for invading privacy. That was the framers’ presupposition, butthat 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. The aim must be to translate the original protections into a context in which the technology for invading privacy hadchanged.15 This would be done, Brandeis argued, by applying the Fourth Amendment’s protection to invasions that were not themselves trespasses.
These two opinions mark two different modes of constitutional interpretation.
Taft finds fidelity by simply repeating what the framers did; Brandeis finds fidelity byfinding the current equivalent to what the framers did. If we followed Taft, Brandeis
argued, we would defeat the protections for privacy that the framers originally set; if
we followed Brandeis, Taft implied, we would be adding to the Constitution something that the framers had not written.
Partisans on both sides claimed that the opinion of the other would have“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?
To answer this question, you would first have to ask: Change relative to what?
What is the baseline against which this change is a change? Certainly Brandeis would
have agreed that in 1791, just after the amendment was passed, any finding by the
Court that the amendment reached beyond trespass would have been improper. But
when something presupposed by the original amendment has changed, is it clearthat the Court’s proper response is to act as if nothing has changed at all?
Brandeis’s method accounted for the changed presupposition. He offered a reading that changed the scope of the amendment in order to maintain the amendment’s
protection of privacy. Taft, on the other hand, offered a reading that maintained thescope of the amendment but changed its protection of privacy. Each reading kept
something constant; each also changed something. The question is: Which reading
preserved what fidelity demands should be preserved?

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C O D EWe might better see the point through a somewhat stylized re-creation. Imagine
that we could quantify privacy: we could thus describe the change in the quantity ofprivacy 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 then that in 1791 protecting against
physical trespass protected 90 percent of personal privacy. The government could
still stand on the street and listen through open windows, but the invasion presented
by that threat was small, all things considered. For the most part, a regime that protected against trespass also protected privacy.
When telephones came along, however, this protection changed.A lot of private
information was put out across the phone lines. Now, if tapping was not trespass,much less of private life was protected from government snooping. Rather than 90
percent being protected by the amendment, only 50 percent was protected.
Brandeis wanted to read the amendment so that it protected what it originallyprotected—the 90 percent, 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.
This form of argument is common in our constitutional history, and central tothe 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 justices on both the right and theleft.18 It is a way to keep life in a constitutional provision—to make certain thatchanges in the world do not change the meaning of the Constitution’s text. It is anargument, we can say, that aims at translating the protections that the Fo u rt h
Amendment gave in 1791 into the same set of protections at any time later in our
history. It acknowledges that to do this the Court may have to read the amendment
differently. But it is not reading the amendment differently to improve the amendment or to add to its protections. It is reading the amendment differently to accommodate the changes in protection that have resulted from changes in technology. It
is translation to preserve meaning.
If there is a justice who deserves c-world’s praise, if there is a Supreme Court
opinion that should be the model for cyberactivists in the future, if there is a firstchapter in the fight to protect cyberspace,it is this Justice,this opinion,and this case.
Brandeis gave us a model for reading the Constitution to preserve its meaning, andits values, across time and context. It is a method that recognizes what has changed
and accommodates that change to preserve something of what the framers originally gave us. It is a method,again,that translates the Constitution’s meaning acrossfundamentally different contexts—whether they are as temporally distant as we arefrom 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 Fourth
Amendment that prevailed. It took forty years for the Supreme Court to embrace
Brandeis’s picture of the Fourth Amendment—forty years before Olmstead wasoverruled. The case overruling it was Katz v United States.19

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Charles Katz was suspected o f transmitting gambling information to clients inother states by telephone. Federal agents recorded his half of several of his telephone
calls by attaching an eavesdropping device to the outside of a public phone boothwhere he made his calls. Katz was convicted on the basis of this evidence, and thecourt of appeals upheld the conviction on the basis of Olmstead.
Harvard Law School Professor Laurence Tribe was involved in the case at the beginning of his legal career:
As a [law] clerk to Supreme Court Justice Potter Stewart,I found myself working
on a case involving the government’s electronic surveillance of a suspected criminal in the form of a tiny device attached to the outside of a public telephonebooth. Because 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 there had been no “search” or “seizure” andtherefore the Fourth 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,there were only four votes to overrule Olmstead and to hold the Fourth
Amendment applicable to wiretapping and electronic eavesdropping. I’m proud
to say that, as a 26-year-old kid,I had at least a little bit to do with changing that
number from four to seven—and with the argument, formally adopted by aseven-Justice majority in December 1967,that the Fourth Amendment “protects
people, not places” [389 US at 351]. In that decision, Katz v. United States, theSupreme Court finally repudiated Olmstead and the many decisions that had relied upon it, reasoning that, given the role of electronic telecommunications inmodern life,the [First Amendment] purposes of protecting free speech as well as
the [Fourth Amendment] purposes of protecting privacy require treating as a“search” any invasion of a person’s confidential telephone communications, withor without physical trespass.20

The Court in Katz followed Brandeis rather than Taft. It sought a reading of the
Fourth Amendment that made sense of the amendment in a changed context. In theframers’ context of 1791, protecting against trespass to property was an effective way
to protect against trespass to privacy, but in the Katz context of the 1960s it was not.
In the 1960s much of intimate life was conducted in places where property rules did
not reach (in the “ether,” for example, of the AT&T telephone network). And so a
regime that made privacy hang on property did not protect privacy to the same degree that the framers had intended. Justice Stewart in Katz sought to remedy that bylinking the Fourth Amendment 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 an expectation of privacy, andwhere that expectation is reasonable. Where people have a reasonable expectation of118

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privacy, the government cannot invade that space without satisfying the requirements of the Fourth Amendment.
There is much to admire in Stewart’s opinion,at least to the extent that he 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 also much to question.22 But
we can put those questions aside for the moment 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 made a
conscious choice to protect privacy. This was not an issue off the table 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 theright to be free from state intrusion into the “sanctity” of a private home. Stateenforced threats to individual privacy were at the center of the movement that led to
the republic. Brandeis and Stewart simply aimed to effect that choice in contexts
where the earlier structure had grown ineffectual.
Translations like these are fairly straightforward. The original values chosen are
fairly clear; the way in which contexts undermine the original application is easily
grasped; and the readings that would restore the original values are fairly obvious.
Of course, such cases often require a certain interpretive courage—a willingness topreserve interpretive fidelity by changing an interpretive 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 carrying values
from one context into another. When we know what values we want to preserve, weneed only be creative about how to preserve them in a different context.
Cyberspace will present many such easy cases. When courts confront them,theyshould follow the example of Brandeis: they should translate, and they should push
the Supreme Court to do likewise. Where circumstances have changed to nullify theprotections 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.
Sometimes the values that translation would track are values we no longer want topreserve. And sometimes we cannot tell which values translation would select. This
was the problem in chapter 2 with the worm, which made the point about latentambiguities. 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 original value. Since either way could be said
to be right, we cannot say that the original context (whether now or two hundredyears 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 theConstitution in cyberspace that aims to make the Constitution “technologicallytranslation

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neutral.” The objective is to adopt readings (or perhaps even an amendment) thatmake it plain that changes in technology are not to change the Constitution’s meaning. We must always adopt readings of the Constitution that preserve its original values. When dealing with cyberspace, judges are to be translators; different
technologies are the different languages; and the aim is to find a reading of the Constitution that preserves its meaning from one world’s technology to another.25
This is fidelity as translation. This kind of translation speaks as if it is just carrying over something that has already been said. It hides the creative in its act;it feigns
a certain polite or respectful deference. This way of reading the Constitution insiststhat the important political decisions have already been made and all that is required is a kind of technical adjustment. It aims at keeping the piano in tune as it is
moved from one concert hall to another.
But Tribe then offers an example that may make this method seem empty. The
question is about the meaning of the confrontation clause of the Sixth Amendment—the defendant’s right in a criminal trial “to be confronted with the witnesses
against him.” How, Tribe asks, should we read this clause today?
At the time of the founding, he argues, the technology of confrontation was simple—confrontation was two-way. If a witness confronted the accused, the accused,of necessity, confronted the witness. This was a necessity given to us by the technology of 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 clause regime that
permits only one-way confrontation, at least when there are strong interests in not
requiring two, is a fair translation of the original clause. 27
As a matter of political choice, I certainly like this answer. But I do not see its
source. It seems to me that this is a question the framers did not decide, and a question that if presented to them might well have divided them. Given the technologyof 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 how they would have decided
it. Thus, to speak as if there were an answer here that the framers simply gave us is a
bit misleading. The framers gave no answer here,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 ambigu 28
ity. Constitutional law in cyberspace will reveal many such latent ambiguities. And
these ambiguities offer us a choice: How will we go on?

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Choices are not terrible. It is not a disaster if we must make a decision—so long,that is, as we are capable of it. But here is the nub of the problem that I see. As I argue in more detail in part 4, given the current attitudes of our courts, and our legal
culture generally, constitutional ch oi ces are costly. We are bad at making thesechoices; 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. One response is passive: the court simply lets the legislature decide as it will. This is the response that Justice Scalia presses in the context of the Fourteenth Amendment. On
matters that, to the framers, were “undebatable,” the Constitution does not speak. 29
In this case, only the legislature can engage, and press, questions of constitutional
value and thus say what the Constitution will continue 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 thisconversation—to focus a debate that may ultimately be resolved elsewhere. The first
response is a way of doing nothing; the second is a way of exciting a dialogue about
constitutional values as a means to confronting and resolving new questions.
My fear about cyberspace is that we will respond in the first way—that the institutions most responsible for articulating constitutional values will simply standback while issues of constitutional import are legislatively determined. The institutions most responsible for articulating constitutional values today are the courts.My
sense is that they will step back because they feel (as the balance of this book argues)that these are new questions that cyberspace has raised. Their newness will makethem feel political, and when a question feels political, courts step away from resolving it.
I fear this not because I fear legislatures, but because in our day constitutional
discourse at the le vel of the legislature is a very thin sort of discourse. The philosopher Bernard Williams has argued that because the Supreme Court has taken socentral a role in the articulation of constitutional values, legislatures no longer do.30
Whether Williams is correct or not, this much is clear: the constitutional discourseof our present Congress is far below the level it must be at to address the questions
about constitutional values that will be raised by cyberspace.
How we could reach beyond this thinness of discourse is unclear. We are in atime when constitutional thought has been for too long the domain of lawyers andjudges. We have been trapped by a mode of reasoning that pretends that all the important questions have already been answered, that our job now is simply to translate them for modern times. As a result, we do not quite know how to proceed when
we think the answers are not already there. As nations across the world struggle toexpress and embrace constitutional values, we, with the oldest written constitutional
tradition, have lost the practice of embracing, articulating, and deciding on constitutional values.

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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 wayof 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 could make?

T E Ni nte ll ec tu al

pr op ert y

Har ol d Reeves is among t h e best r esear ch assist ant s I h ave h ad. He wor ked
with me to develop the first course I taught on the law of cyberspace.Early into his
second year at the University of Chicago Law School,he came to me with an idea hehad for a student comment—a student article that would be published in the law review.1 The topic was trespass law in cyberspace—whether and how 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 “owners” 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 contained an
insight that was quite genius,and that should be central to thinking about law in cyberspace.
The idea—much more briefly and much less elegantly than Reeves has put it—is
this: the question that law should ask is what means would bring about the most efficient set of protections for property interests in cyberspace. Two sorts of protections
are possible. One is the traditional protection of law—the law defines a space whereothers should not enter and punishes people who nonetheless enter. The other protection 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—laws andfences that supplement law. No doubt there is some optimal mix between fences andlaw. 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 economics-speak, we would want a mix such that the marginal cost of an additional unit of protection is equivalent to the marginal benefit.)
The implication of this idea in real space is that it sometimes makes sense to shift
the burden of protection to citizens rather than the state. If, for example, a farmer
wants to store some valuable seed on a remote part of his farm, it is better for him
to bear the cost of fencing in the seed than to require the police to patrol the area

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more consistently or to increase the punishment for those they catch. The question,
then, 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 illegitimate uses of cyberspaces. There are many“agents” that might “use” the space of cyberspace. Web spiders, which gather data forweb search engines; browsers, who are searching across the Net for stuff to see;hackers (of the good sort) who are testing the locks of spaces to see that they are lo cked;
and hackers (of the bad sort) who are breaking and entering to steal. It is hard, exante, for the law to know which agent is using the space legitimately and which isnot. Legitimacy depends on the intention of the person granting access.
So that led Reeves to his idea: since the intent of the “owner” is so crucial here,
and since the fences of cyberspace can be made to reflect that intent cheaply, it isbest to put all the incentive on the owner to define access as he wishes. The right tobrowse should be the norm, and the burden to lock doors should be placed on theowner.4
Now put Reeves’s argument aside, and think for a second about something thatwill seem completely different but is very much the same idea. Think about “theft”
and the protections that we have against it.
I have a stack of firewood behind my house. No one steals it. If I left my bike out
overnight,it would be gone.
A friend told me that, in a favorite beach town, the city used to find it impossible to plant flowers—they would immediately be picked. But, he now 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.

Many things protect property against theft—differently. The market protects myfirewood (it is cheaper to buy your own than it is to haul mine away); the market isa special threat to my bike (which if taken is easily sold). Norms sometimes protect
flowers in a park; sometimes they do not. Nature sometimes 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-spacecode to make it harder to steal. There could be a shortage of firewood,increasing demand and making it harder to protect. Public campaigns about civic beauty mightstop flower theft; selecting a distinctive flower might do the same. Sophisticated124

C O D Elocks might make stolen cars useless; sophisticated bank fraud might make skyscrapers vulnerable. The point is not that protections 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,themarket, and real-space code yield. This is just an application of the point made inchapter 7. From the point of view of the state, we need law only when the other threemodalities leave property vulnerable. From the point of view of the citizen, realspace code (such as locks) is needed when laws and norms alone do not protect
enough. Understanding how property is protected means understanding how thesedifferent protections work together.
Reeves’s idea and these reflections on firewood and skyscrapers point to the different ways that law might protect “property” and suggest the range of kinds ofproperty that law might try to protect. They also invite a question that has beenasked by Justice Stephen Breyer and many others: Should law protect some kinds ofproperty—in particular, intellectual property—at all?5
Among the kinds of property law might protect, my focus in this chapter will beon just one—“intellectual property,” or more particularly, the property protected bycopyright. Of all the different types of property, this type is said to be the most vulnerable to the changes that cyberspace would bring. Intellectual property, it is said,cannot be protected in cyberspace. And in the terms that I’ve sketched, we can begin
to see why—and more important, why what is said must be wrong.

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Roughly put, copyright gives a copyright holder the right to control the copying ofthat to which the right extends.6 I have a copyright in this book. That means, subject
to some important exceptions, you cannot copy this book without my permission.
The right is protected to the extent that laws (and norms) support it,and it is threatened to the extent that technology makes it easy to copy. Strengthen the law, holding
technology constant, and the right is stronger. Strengthen the technology, holding
the law constant, and the right is weaker.7
In this sense, copyright has always been at war with technology. Before the printing press (and especially the availability of paper8),there was not much need to protect an author’s copyright. Copying was so expensive that nature itself protected thatright. But as the cost of copying decreased, the threat to the author’s control increased. As each generation has delivered a technology better than the last, the ability of the copyright holder to protect her intellectual property has been weakened.
But up to now, the law could respond quite easily. If photocopying machines inlibraries posed a new threat to the right, then the law could be modified to better
deal with photocopying machines.9 If videotape allowed TV viewers to tape a show
to view at a different time, the law could be modified to deal with time shifting.10 In

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all these cases,the real protection accorded to property is the sum of these different
kinds of constraints; we can see that increases in legal protection, in response to increased threats to copying,11 may on balance simply restore the power an author
once held rather than increase the author’s right. 12
Fortunately, from law’s perspective at least, technological changes have always
been gradual. Copies have become better and cheaper, but only by degrees, andover a relatively extended period. There have been shocks to the system, but thelaw has had time to react when the old system seemed out of step—by slowly
modifying its protections and extending them where technology seemed to beeroding them.13
It is said by some that cyberspace changes not only the technology of copying
but also (and more important) the power of law to protect against illegal copying.14
It does both simultaneously, and extremely quickly. Not only does the Net promise
perfect copies of digital originals at practically no cost,15 but it also threatens to impose an almost impossible task on law enforcers: tracing and punishing copyrightviolators. In the terms of chapter 7: the effective constraint of law (against copying)
disappears just at the time when the constraints of technology disappear as well. The
threat posed by technology is maximal, while the protection promised by law isminimal. For the holder of the copyright,cyberspace appears to be the worst of bothworlds—a place where the ability to copy could not be better, and where the protection of law could not be worse.
Talk like this gave birth to the panic of copyright holders, who wanted to see legislative changes made to better protect the copyright. For of course, the predictionsof cyberspace mavens notwithstanding, not everyone was willing to concede thatcopyright law was dead. Intellectual property lawyers and interest groups pushed
early on to have law shore up the protections of intellectual property that cyberspace
would erase.

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The product of the original push was a White Paper produced by the Commerce
Department in 1995 after soliciting comments for more than two years about how
cyberspace threatened copyright.16 The White Paper outlined a series of modifications aimed, it said, at restoring “balance” in intellectual property law. Entitled“ In tellectual Property and the Na ti onal Information Infrastructu re ,” the reportsought to restate existing intellectual property law in terms that anyone could understand, as well as recommend changes in the law in response to the changes the
Net would bring. But as scholars quickly pointed out, the first part was a bust.17
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 protection, but it pretended that its tilt was
the natural lay of the land.

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C O D EFor our purposes, however, it is the recommendations that are most significant.
The government proposed four responses to the threat presented by cyberspace. In
the terms of chapter 7, these responses should be familiar.
The first response was traditional. The government proposed changes in the lawof copyright to “clarify” the rights that it was to protect.18 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 theirviolation.
But the proposal went far beyond these traditional means.A second recommendation was for increased educational efforts, both in the schools and among the general public, about the nature of intellectual property and the importance ofprotecting it. In the terms of chapter 7,this is the use of law to change norms so that
norms will better support the protection of intellectual property. It is an indirect
regulation of behavior by direct regulation of norms.
Education was not, however, the most significant indirect regulation. More interesting for our pur poses was the government’s financial and legal support for thedevelopment of copyright management schemes—software that would make it easier to control access to and use of copyri gh ted material. We will explore theseschemes at some length later in this chapter, but I mention it now as another example of indirect regulation—using the market to subsidize the development of acertain software tool, and using law to regulate the properties of other softwaretools. Copyright manag ement systems are supported by government funding, andthe threat of felony conviction hangs over anyone interested in designing software to
crack them.19
The 1995 package of proposals was a scattershot of techniques—some changes
in law, some support for changing norms,and lots of support for changing the codeof 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 balance brought on by cyberspace.
Balance is attractive. Moderation seems right. But something is missing fromthis approach. The White Paper proceeds as if the problem of protecting intellectual
property in cyberspace were just like the problem of protecting intellectual property
in real space. It proceeds as if the four constraints 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 has changed. Code can, and increasingly will, displace
law as the primary defense of intellectual property in cyberspace. Private fences, notpublic law.
The White Paper does not see this. Built into its scattershot of ideas is one that is
crucial to its approach but fundamentally wrong—the idea that the nature of cyberspace is anarchy. The White Paper promises to strengthen law in every area it can.
But it approaches the question like a ship battening down for a storm: whatever hap-

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pens, the threat to copyright is real, damage will be done, and the best we can do isride it out.
This is fundamentally wrong. We are not entering a time when copyright is morethreatened than it is in real space. We are instead entering a time when copyright ismore effectively protected than at any time since Gutenberg. The power to regulate
access to and use of copyrighted material is about to be perfected. Whatever themavens of the mid-1990s may have thought, cyberspace is about to give holders of
copyrighted property the biggest gift of protection they have ever known.
In such an age—in a time when the protections are being perfected—the realquestion for law is not, how can law aid in that protection? but rather, is the protection too great? The mavens were right when they predicted that cyberspace willteach us that everything we thought about copyright was wrong.20 But the lesson in
the future will be that copyright is protected far too well. The p roblem will center
not on copy-right but on copy-duty—the duty of owners of protected property tomake that property accessible.
That’s a big claim. To see it, however, and to see the consequences it entails, weneed consider only two small examples. The first is a vision of a researcher from Xerox PARC (appropriately enough), Mark Stefik, and his idea of “trusted systems.”21
The second is an implication of a world dominated by trusted systems. Both examples will throw into relief the threat that these changes present for values that our
tradition considers fundamental. Both should force us to make a choice about thosevalues,and about their place in our future.

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It all depends on whether you really understand the idea of trusted systems. If you
don’t understand them, then this whole approach to commerce and digital publishingis utterly unthinkable. If you do understand them ,t h en it all follows easily.
Ralph Merkle, quoted in Stefik,“Letting Loose the Light” (1996)

Given the present code of the Internet, you can’t control well who copies what. If
you have a copy of a copyrighted photo, rendered in a graphics file, you can makeunlimited copies of that file with no effect on the original. When you make the onehundredth copy, nothing indicates that it is the one-hundredth copy rather than thefirst. There is very little in the code as it exists now that regulates the distribution ofand access to material on the Net.
This problem is not unique to cyberspace. We have already seen a technologythat presented the same problem; a solution to the problem was subsequently built128

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into the technology.22 Digital audio technology (DAT) tape was a threat to copyright, and 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 argued for a tax on blank tapes, with the proceeds compensating copyright holders(indirect regulation of the market by law). Some argued for better education to stop
illegal copies of tapes (indirect regulation of norms by law). But some argued for achange in the code of tape machines that would block unlimited perfect copying.
With the code changed, when a machine is used to copy a particular CD, a serial
number from the CD is recorded in the tape machine’s memory. If the user tries tocopy that tape more than a limited number of times, the machine adjusts the quality of the copy. As the copies increase, the quality is degraded. This degradation isdeliberately created. Before DAT, it was an unintended consequence of the copying
technologies—each copy was unavoidably worse than the original. Now it has been
reintroduced to restore a protection that had been eroded by technology.
The same idea animates Stefik’s vision, though his idea is not to make the quality of copies decrease but rather to make it possible to track and control the copies
that are made.23
Think of the proposal like this. Today, when you buy a book, you may do any
number of things with it. You can read it once or one hundred times. You can lend
it to a friend. You can photocopy pages in it or scan it into your computer. You canburn it, use it as a paperweight, or sell it. You can store it on your shelf and neveronce open it.
Some of these things you can do because the law gives you the right to dothem—you can sell the book, for example, because the copyright law explicitly gives
you that right. Other things you can do because there is no way to stop you.A bookseller might sell you the book at one price if you promise to read it once, and at adifferent price if you want to read it one hundred times, but there is no way for theseller to know whether you have obeyed the contract. In principle, the seller could
sell a police officer with each book to follow you around and make sure you use thebook as you promised, but the costs would plainly be prohibitive.
But what if each of these rights could be controlled, and each unbundled andsold separately? What if, that is, the software itself could regulate whether you readthe book once or one hundred times; whether you could cut and paste from it orsimply read it without copying; whether you could send it as an attached document
to a friend or simply keep it on your machine; whether you could delete it or not;whether you could use it in another work, for another purpose, or not; or whether
you could simply have it on your shelf or have it and use it as well?
Stefik describes a network that makes such unbundling of rights possible. He describes an architecture for the network that would allow owners of copyrighted materials to sell access to those materials on the terms they want and would enforce
those contracts.
The details of the system are not important here24 (it builds on the encryption
architecture I described in chapter 4), but its general idea is easy enough to describe.

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As the Net is now, basic functions like copying and access are crudely regulated in an
all-or-nothing fashion. You generally have the right to copy or not, to gain access ornot.
But a more sophisticated system of rights could be built into the Net—not intoa different Net, but on top of the existing Net. This system would function by discriminating in the intercourse it has with other systems.A system that controlled access in this more fine-grained way would grant access to its resources only toanother system that controlled access in the same way. A hierarchy of systems would
develop, and copyrighted material would be traded only among systems that p roperly controlled access.
In such a world,then, you could get access, say, to the New York Times and pay adifferent price depending on how much of it you read. The Times could determine
how much you read, whether you could copy portions of the newspaper, whether
you could save it on your hard disk,and so on. But if the code you used to access theTimes site did not enable the control the Times demanded,then the Times would not
let you onto its site at all. In short, systems would e xchange information only withothers that could be 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 ofbonded couriers. Sometimes you want to mail a letter with something particularly
valuable in it. You could simply g ive it to the post office, but the post office is not aterribly reliable system; it has relatively little control over its employees, and theftand loss are not uncommon. So instead of going to the post office, you could give
your letter to a bonded courier. Bonded couriers are insured, and the insurance is acost that constrains them to be reliable. This reputation then makes it possible forsenders of valuable material to be assured about using their se rvices.
This is what a structure of trusted systems does for owners of intellectual property. It is a bonded courier that takes the thing of value and controls access to anduse of it according to the orders given by the principal.
Imagine for a moment that such a structure emerged generally in cyberspace.
How would we then think about copyright law?
An important point about copyright law is that, though designed in part to protect authors, its protection was not to be absolute—the copyright is subject to “fairuse,” limited terms, and first sale. The law threatened to punish violators of copyright laws—and it was this threat that induced a fairly high proportion of people tocomply—but the law was never designed to simply do the author’s bidding. It had
public purposes as well as the author’s interest in mind.
Trusted systems provide authors with the same sort o f protection. Because authors can restrict unauthorized use of their material, they can extract money in exchange for access. Trusted systems thus a chieve what copyright law achieves. But it
can achieve this protection without the law doing the restricting. It permits a much
more fine-grained control over access to and use of protected material than law permits, and it can do so without the aid of the law.

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What copyright seeks to do using the threat of law and the push of norms,
trusted systems do through the code. Copyright orders others to respect the rights ofthe copyright holder before using his property. Trusted systems g ive access only ifrights are respected in the first place. The controls needed to regulate this access arebuilt into the systems,and no users (except hackers) have a choice about whether toobey these controls. The code displaces law by codifying the rules, making themmore efficient than they were just as rules.
Trusted systems in this scheme are an alternative for protecting intellectual property rights—a privatized alternative to law. They need not be exclusive; there is no
reason not to use both law and trusted systems. Nevertheless, the code in effect isdoing the work that the law used to do. It implements the law’s protection, throughcode, far more effectively than the law did.
What could be wrong with this? We do not worry when people put double bolts on
their doors to supplement the work of the neighborhood cop. We do not worry when
they lock their cars and take their keys. It is not an offense to protect yourself rather
than rely on the state. Indeed, in some contexts it is a virtue. Andrew Jackson’s mother,for example, told him,“Never tell a lie, nor take what is not your own ,n or sue anybody
for slander, assault and battery. Always settle them cases yourself.”25 Self-sufficiency isoften seen as a sign of strength, and going to the law as a sign of weakness.
There are two steps to answering this question. The first rehearses a familiar but
forgotten point about the nature of property; the second makes a less familiar, but
central, point about the nature of intellectual property. Together they suggest why
perfect control is not the control that law has given owners of intellectual property.

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The realists in American legal history (circa 1890–1930) were scholars who (in part)emphasized the role of the state in what was called “private law.”26 At the time theywrote,it was the “private” in private law that got all the emphasis. Forgotten was the“law,” as if “property”and “contract” existed independent of the state.
The realists’ aim was to undermine this view. Contract and property law, they argued, was law that gave private parties power.27 If you breach a contract with me, I
can have the court order the sheriff to force you to pay; the contract gives me accessto 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 you refuse
to leave. If your lease forbids you to have cats, then the landlord can use the powerof the courts to evict you if you do not get rid of the cats. These are all instanceswhere contract and property, however grounded in private action, give a private person an entitlement to the state.
No doubt this power is justified in many cases; to call it “law”is not to call it unjust. The greatest prosperity in history has been created by a system in which private

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parties can order their lives freely through contract and property. But whether justified in the main or not, the realists argued that the contours of this “law”should bearchitected to benefit society.28
This is not communism. It is not an attack on private property. It is not to saythat 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 somecollective good. If a private right is harmful to a collective good,then the state has no
reason to create it. The state’s interests are general, not particular. It has a reason tocreate rights when 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.29
But even with ordinary property—your car, or your house—property rights arenever absolute. There is no property that does not have to yield at some point to theinterests of the state. Your land may be taken to build a highway, your car seized tocarry an accident victim to the hospital, your driveway crossed by the postman,yourhouse inspected by health inspectors. In countless ways, the system of property wecall “private property” is a system that balances exclusive control by the individual
against certain common state ends. When the latter conflict with the former, it is theformer 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 personal property. “Information,” as Boyle puts it,“is different.”30 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. Whenthe law gives me an exclusive right to my apple, that too makes sense. If you eat myapple, 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 my time trying to keep
you away. It is better for everyone, the argument goes, if I have an exclusive right tomy (rightly acquired) property, because then I have an incentive to produce it and
not waste all my time t rying to defend it.31
Things are different with intellectual property. If you “take” my idea, I still haveit. If I tell you an idea, you have not deprived me o f it.32 An unavoidable feature ofintellectual property is that its consumption,as the economists like to put it,is “nonrivalrous.” Your consumption does not lessen mine. If I write a song, you can sing it

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without making it impossible for me to sing it. If I write a book, you can read it(please do) without disabling me from reading it. Ideas, at their core, can be sharedwith no reduction in the amount the “owner” can consume. This difference 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 the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it isdivulged,it forces itself into the possession of every one, and the receiver cannot
dispossess himself of it. Its peculiar character, too, is that no one possesses theless, because e very other possess the whole of it. He who receives an idea fromme, receives instruction himself without lessening mine;as he who lites his taperat mine, receives light without darkening me. That ideas should freely spreadfrom one to another over the globe, for the moral and mutual instruction ofman, and improvement of his condition, seems to have been peculiarly andbenevolently designed by nature, when she made them,like fire, expansible overall space, without lessening their density at any point,and like the air in which webreathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.33

Technically, Jefferson is confusing two different concepts. One is the possibilityof excluding others from using or getting access to an idea. This is the question
whether ideas are “excludable”; Jefferson suggests that they are not. The other concept is whether my using an idea lessens your use of the same idea. This is the question of whether ideas are “rivalrous”;34 again, Jefferson suggests that they are not.
Jefferson believes that nature has made ideas both nonexcludable and nonrivalrous,
and that there is little that man can do to change this fact.35
But in fact, ideas are not both nonexcludable and nonrivalrous. I can exclude
people from my ideas or my writings—I can keep them secret, or build fences tokeep people out. How easily, or how effectively, is a technical question. It depends on
the architecture of protection that a given context provides. But given the proper
technology, there is no doubt that I can keep people out.
What I cannot do, however, is change the nature of my ideas as “nonrivalrous”
goods. No technology (that we know of) will erase an idea from your head as it
passes into my head. No technology will make it so that I cannot share your ideas
with no harm to you. My knowing what you know does not lessen your knowing of
the same thing. That fact is given in the world,and it is that fact that makes intellectual property different. Unlike apples, and unlike houses, ideas are something I cantake from you without diminishing what you have.
It does not follow, however, that there is no need for property rights over expressions or inventions.36 Just because you can have what I have without lesseningintellectual property

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what I have does not mean that the state has no reason to create rights over ideas, orover the expression of ideas.
If a novelist cannot stop you from copying (rather than buying) her book, thenshe has very little incentive to produce more books. She may have as much as she
had before you took the work she produced, but if you take it without paying, she
has no monetary incentive to produce more.
Now in fact, of course, the incentives an author faces are quite complex, and it is
not possible to make simple generalizations about the incentives authors face.37 But
generalizations do not have to be perfect to make a point: even if some authors write
for free,it is still the case that the law needs some intellectual property rights. If thelaw did not protect the author at all, there would be fewer authors. The law has areason to protect the rights of authors, at least insofar as doing so gives them an in centive 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 the difference between these two very different kinds of property, and thisdifference affects fundamentally the nature of intellectual property law. While we
protect real and personal property to protect the owner from harm and give theowner an incentive, we protect intellectual property only to ensure that we create asufficient incentive to produce it. “Sufficient incentive,” however, is something lessthan “perfect control.” And in turn we can say 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 p roperty was recognized by our Constitution, which in article I,section 8, clause 8, gives
Congress the power “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
Note the special structure of this clause. First, it sets forth the precise reason forthe power—to promote the progress of science and useful arts. It is for those reasons,and those reasons only, that Congress may grant an exclusive right—otherwise
known as a monopoly. And second, note the special t emporality of this right: “forlimited Times.” The Constitution does not allow Congress to g rant authors and inventors permanent exclusive rights to their writings and discoveries, only limited
rights. It does not give Congress the power to give them “property”in their writingsand discoveries, only an exclusive right over them for a limited time.
The Constitution’s protection for intellectual property then is fundamentallydifferent from its protection of ordinary property. I’ve said that all property 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 the
copyright term at fifteen years, there would be no claim that the government pay

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compensation after the fifteen years were up. Intellectual property rights are a monopoly that the state gives to producers of intellectual property in exchange for theirproducing intellectual property. 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 theordinary sense of that term.
And this is true for reasons better than tradition as well. Economists have longunderstood that granting property rights over information is dangerous (to say theleast).38 This is not because of leftist leanings among economists. It is because economists are pragmatists, and their objective in granting any property right is simply
to facilitate production. But there is no way to know, in principle, whether increasing or decreasing the rights granted under intellectual property law will lead to anincrease in the production of intellectual property. The reasons are complex, but the
point is not: increasing intellectual property’s protection is not guaranteed to “promote the progress of science and useful arts”—indeed, often doing so will stifle it.
The balance that intellectual property law traditionally strikes is between theprotections granted the author and the public use or access granted everyone 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.39
A classic example of these limits and of this public use dimension is the right of“fair use.” Fair use is the right to use copyrighted material, regardless of the wishesof the owner of that material.A copyright gives the owner certain rights; fair use isa limitation on those rights. Under the right of fair use, you can criticize this book,cut sections from it, and reproduce them in an article attacking me. In these ways
and in others, you have the right to use this book independent of how I say it should
be used.
Fair use does not necessarily work against the author’s interest—or more accurately, fair use does not necessarily work against the interests of authors as a class.
When fair use protects the right of reviewers to criticize books without the permission of authors, then more critics criticize. And the more criticism there is, the better the information is about what books people should buy. And the better the
information is about what to buy, the more people there are who will buy. Authors
as a whole benefit from the system of fair use, even if particular authors do not.
The law of copyright is filled with such rules. Another is the “first sale” doctrine.
If you buy this book, you can sell it to someone else free of any constraint I might
impose on you.40 This d octrine differs from the tradition in, for example, Europe,
where there are “moral rights” that give the creator power over subsequent use.41 I’ve
already mentioned another example—limited term. The creator cannot extend theterm for which the law will provide protection; that is fixed by the statute and runs
when the statute runs.42
Taken together, these rules give the creator significant control over the use ofwhat he produces, but never perfect control. They give the public some access, butintellectual property

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not complete access. They are balanced by design,and different from the balance thelaw strikes for ordinary property. They are constitutionally structured to help build
an intellectual and cultural commons.
The law strikes this balance. It is not a balance that would exist in nature. Without the law, and before cyberspace, authors would have very little protection; withthe law, they have significant, but not perfect, protection. The law gives authors
something they otherwise would not have in exchange for limits on their rights, secured to benefit the intellectual commons as a whole.

P R I V A T E
P U B L I C

S U B S T I T U T E S

F O R

L A W

But what happens when code protects the interests now protected by copyright law?
What happens when Mark Stefik’s vision is realized,and when what the law protects
as intellectual property can be protected through code? Should we expect that any ofthe limits will remain? Should we expect code to mirror the limits that the law imposes? Fair use? Limited term? Would private code build these “bugs” into its protections?
The point should be obvious: when intellectual property is protected by code,nothing requires that the same balance be struck. Nothing requires the owner togrant the right of fair use. She might, just as a bookstore allows individuals tobrowse for free, but she might not. Whether she grants this right depends onwhether it profits her. Fair use becomes subject to private gain.43
As privatized law, trusted systems regulate in the same domain where copyright
law regulates, but unlike copyright law, they do not guarantee the same public use
protection. Trusted systems give the producer maximum control—admittedly at acheaper cost, thus permitting many more authors to publish. But they give authors
more control (either to charge for or limit use) in an area where the law gave lessthan perfect control. Code displaces the balance in copyright law and doctrines suchas 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 ofclick-wrap, or shrink-wrap, licenses, authors are increasingly demanding that purchasers, or licensees, waive rights that copyright law gave them. If copyright law
gives the right to reverse-engineer, then these contracts might extract a promise
not to reverse-engineer. If copyright law gives the right to dispose of the bookhowever the purchaser wants after the first sale, then a contract might require thatthe user waive that ri gh t . And if these terms in the contract attached to every
copyright work are enforceable merely by being “attached” and “knowable,” thenalready we have the ability to rewrite the balance that copyright law creates. Already, through contract law, copyright holders can defeat the balance that copyright law intends.

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C O D EI agree that this race to privatize copyright law through contract is already far
along, fueled in particular by decisions such as Judge Frank Easterbrook’s in ProCDv Zeidenberg44 and by the efforts in some quarters to push a new uniform code thatwould facilitate these contracts.45
But contracts are not as bad as code. Contracts are a form of law. If a term of acontract is inconsistent with a value of copyright law, you can refuse to obey it andlet the other side get a court to enforce it. The ultimate power of a contract is a 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 side makes its case very clear, courts could shift direction again.46
The same is not true of code. Whatever problems there are when contracts replace copyright law, the problems are worse when code displaces copyright law.
Again—where do we challenge the code? When the software protects in a particular
way without relying in the end on the state,where can we challenge the nature of theprotection? Where can we demand balance when the code takes it away?
The rise of contracts modifying copyright law (due in part to the falling costs ofcontracting) and the rise of code modifying copyright law (promised as trusted systems become all the more common) raise for us a question that we have not had toanswer before. We have never had to choose whether authors should be permitted
perfectly to control the use of their intellectual property independent of the law, forsuch control could only be achieved through law.47 The balance struck by the law
was the best that authors could get. But now the code gives authors a better deal.
And thus we must now decide whether this better deal makes public sense.
Some argue that it does, and that this increased power to control use in fact is
not inconsistent with fair use.48 Fair use, these commentators argue, defined therights in an area where it was not possible to meter and charge for use. In that context,fair use set a default rule that parties could always contract around. The default
rule was that use was free.
But as the limits of what it is possible to meter and charge for changes, the scopeof fair use changes as well.49 If it becomes possible to license every aspect of use,then no aspect of use would have the protections of fair use. Fair use, under thisconception, was just the space where it was too expensive to meter use. By eliminating that space, cyberspace merely forces us to recognize the change in the context
within which fair use functions.
There are then, from this view, two very different conceptions of fair use.50 One
conception views it as inherent in the copyright—required wh et h er technology
makes it possible to take it away or not; the other views it as contingent—needed
where technology makes it necessary. We can choose between these two conceptions,if indeed our constitutional commitment is ambiguous.
A nice parallel to this problem exists in constitutional law. The framers gave
Congress the power to regulate interstate commerce and commerce that affects interstate commerce.51 At the founding, that was a lot of commerce, but because of theintellectual property

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inefficiencies of the market,not all of it. Thus,the states had a domain of commercethat they alone could regulate.52
Over time,however, the scope of interstate commerce has changed so that muchless commerce is now within the exclusive domain of the states. This change has
produced two sorts of responses. One is to find other ways to give states domains of
exclusive regulatory authority. The justification for this response is the claim thatthese changes in interstate commerce are destroying the framers’ vision about state
power.
The other response is to concede the increasing scope of federal authority, but todeny that it is inconsistent with the framing balance.53 Certainly, at the founding,some commerce was not interstate and did not affect interstate commerce. But that
does not mean that the framers intended that there must always be such a space.
They tied the scope o f federal power to a moving target; if the target moves completely to the side of federal power, then that is what we should embrace.54
In both contexts, the change is the same. We start in a place where balance isgiven to us by the mix of frictions within a particular regulatory domain: fair use isa balance given to us because it is too expensive to meter all use; state power overcommerce 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 scope of one side of each balance should
faithfully track the index to which 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 context of federal
power, we believe either that the states were meant to keep a domain of exclusive authority55 or that the federal government was to have whatever power affected interstate commerce.56 In the context of fair use, we believe that either fair use is to be aminimum of public use, guaranteed regardless of the technology,57 or that it is justan inefficient consequence of inefficient technology, to be removed as soon as efficiency can be achieved.58
But in both cases, this may make the problem too easy. The best answer in bothcontexts may be that the question was unresolved at the time: perhaps no one
thought of the matter, and hence there is no answer to the question of what theywould have intended if some central presupposition had changed. And if there wasno original answer, we must decide the question by our own lights. As Stefik says oftrusted systems—and, we might expect, of the implications of trusted systems—“Itis a tool never imagined by the creators of copyright law, or by those who believe
laws governing intellectual property cannot be enforced.”59
The loss of fair use is a consequence of the perfection of trusted systems.
Whether you consider it a problem or not depends on your view of the value of fairuse. If you consider it a public value that should exist regardless of the technologicalregime, then the emergence of this perfection should trouble you. From your per-138

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spective, there was a value latent in the imperfection of the old system that has now
been erased.
But even if you do not think that the loss of fair use is a problem, trusted systems
threaten other values latent in the imperfection of the real world. Consider now asecond.

T H E

A N O N Y M I T Y

T H A TI M P E R F E C T I O N

A L L O W S

I was a student in England for a number of years,at an English university. In the college I attended,there was a “buttery”—a shop that basically sold alcohol. During thefirst 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 these purchases, I received asummons from my tutor to come talk with him in his office. When I arrived, the tutor asked me about my purchases. 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, I was shocked at the question. Of course, formally, I had made apurchase at the college,and I had not hidden my name when I did so (indeed, I had
charged it on my college account), so formally, I had revealed to the college and its
agents my alcohol purchases. Still, it shocked me that this information would bemonitored by college authorities and then checked up on. I could see why they did
it, and I could see the good that might come from it. It just never would have occurred to me that this data would be used in this way.
If this is an invasion, of course it is a small one. Later it was easy for me to hide
my binges simply by buying from a local store rather than the co ll ege 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, 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 about ourselves that we ordinarily expect theworld not to use.
Trusted systems depend on such data—they depend on the ability to know how
people use the property that is being protected. To set prices most efficiently, the system ideally should know as much about individuals and their reading habits as possible. It needs to know this data because it needs an efficient way to track use and soto charge for it.60
But this tracking involves a certain invasion. We live now in a world where wethink 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 t rack. We would beshocked if we learned that the library was keeping tabs on the books that people
checked out and then using this data in some monitoring 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? The question isintellectual property

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parallel to the question of fair use. In a world where this monitoring could not effectively occur, there was, of course, no such right 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.61 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 anonymously, without fearthat others will know or watch or change their behavior based on what we read.This
is an element of intellectual freedom. It is a part of what makes us as we are. 62
Yet this element is potentially erased by trusted systems. These systems need tomonitor, and this monitoring destroys anonymity. We need to decide whether, andhow, to preserve values from today in a context of trusted systems.
This is a matter of translation.63 The question is, how should changes in technology be accommodated to preserve values from an earlier context in a new context? It is the same question that Brandeis asked about wiretapping.64 It is thequestion the Court answers in scores of contexts all the time. It is fundamentally aquestion about preserving values when contexts change.
In the context of both fair use and reading, Cohen has a consistent answer to thisquestion of translation. She argues that there is a right to resist, or “hack,” trusted
systems to the extent that they infringe on traditional fair use. (Others have called
this the “Cohen Theorem.”) As for reading, she argues that copyright management
schemes must protect a right to read anonymously—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 old architecture but now threatened by a new architecture,and then argues in favor of an affirmative right to protect the original value.

T H E

P R O B L E M S

T H A TP E R F E C T I O N

M A K E S

These two examples reveal a common problem—one that will reach far beyond
copyright. At one time we enjoy a certain kind of liberty, but that liberty comes fromthe high costs of control.65 That was the conclusion we drew about fair use—that
when the cost of control was high, the space for fair use was great. So too withanonymous reading: we read anonymously in real space not so much because laws
protect that right as because the cost of tracking what we read is so great.
When those costs fall,the liberty is threatened. That threat requires a choice—do
we allow the erosion, or do we erect other limits to re-create the original space forliberty?
The law of intellectual property is the first example of this general point. The architectures of property will change; they will allow for a greater protection for intellectual property than real-space architectures allowed; and 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

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C O D Ethe architecture an incompleteness that guarantees a certain aspect of public use? Ora certain space for individual freedom?
Ignoring these questions will not make them go away. Pretending that theframers answered them is no solution either. In this context (and this is just the first)
we will need to make a judgment about which values the architecture will protect.

C H O I C E S

I’ve argued that cyberspace will open up at least two important choices in the context of intellectual property: whether to allow intellectual property in effect to become completely propertized (for that is what a perfect code regime for protecting
intellectual property would do), and whether to allow this regime to erase theanonymity latent in less efficient architectures of control. These choices were notmade by our framers. They are for us to make now.
I have a view, in this context as in the following three, about how we should exercise that choice. But I am a lawyer, trained to be shy about saying “how things
ought to be.” Lawyers are taught to point elsewhere—to the framers, to the United
Nations charter, to an act of Congress—when arguing about how things ought to be.
Having said that there is no such authority here, I feel as if I ought therefore to besilent.
Cowardly, not silent, however, is how others might see it. I should say, they say,what I think. So in each of these four applications (intellectual property, privacy, freespeech, and sovereignty), I will offer my view about how these choices should be
made. But I do this under some duress and encourage you to simply ignore what I
believe. It will be short, and summary, and easy to discard. It is the balance of thebook—and, most importantly, the claim that we have a choice to make—that I really want to stick.
A n o n y m i t y

Cohen,it seems to me,is plainly right about anonymity, and the Cohen Theorem inspirational. However efficient the alternative may be, we should certainly architect
cyberspaces to ensure anonymity—or more precisely, pseudonymity—first. If thecode is going to monitor just 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 suchand such; I am deeply troubled if that number is tied back to my name.
Cohen is plainly right for a second reason as well: all of the good that comesfrom monitoring could be achieved while protecting privacy as well. It may take a
bit more coding to build in routines for breaking traceability; it may take more planning to ensure that privacy is protected. But if those rules are embedded up front,
the cost would not be terribly high. Far cheaper to architect privacy protections in
now rather than retrofit for them later.

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C om mo ns

An intellectual commons I feel much more strongly about.
We can architect cy berspace to preserve a commons or not. (Jefferson thoughtthat nature had already done the architecting, but Jefferson wrote before there wascode.66) We should choose to architect it with a commons.Our past had a commonsthat could not be designed away; that commons gave our culture great value. Whatvalue the commons of the future could bring us is something we are just beginningto see. Intellectual property scholars saw it—long before cyberspace came along—
and laid the groundwork for much of the argument we need to have now.67 The
greatest work in the law of cyberspace has been written in the field of intellectual
property. In a wide range of contexts, these scholars have made a powerful case f or
the substantive value of an intellectual commons.68
James Boyle puts the case most dramatically in his extraordinary book Shamans,
Software,and Spleens.69 Drawing together both cyberspace and noncyberspace questions,he spells out the challenge we face in an information society—and particularly
the political challenge we face.70 Elsewhere he identifies our need for an “environmental movement” in information policy—a rhetoric that gets people to see thebroad range of values put at risk by this movement to propertize all information.71
We are far from that understanding just now, and this book, on its own, won’t get
us much closer. It is all that I can do here to point to the choice we will have to make,and hint, as I have, about a direction.

E L E V E N
p r i v a c y

Th e c oncl usion o f par t 1 was t h at code coul d enabl e a mor e r egul abl e cyberspace and that this is cause for concern. The conclusion of the last chapter wasthat code could enable a more regulable regime of intellectual property, and again,that this is cause for concern. In both cases, code resets a traditional balance between
freedom and constraint, and we need to ask whether the new balance is consistent
with our tradition or with how we want the space to be.
With “privacy,” the story is a bit different. Here the code has already upset a traditional balance. It has already changed the control that individuals have over facts
about their private lives. The question now is: Could code re-create something ofthat traditional balance? I argue that it can.1
There’s a story from early MUD history that will introduce this debate about privacy.2 You recall that MUDs are text-based virtual realities where people build characters and those characters come to represent who their creators are. In the early
history of MUDs the community of MUDers was relatively small, and certain characters became well known across MUD communities. Famous characters became
known to everyone.
There is a behavior in MUDs and MOOs called “tinySex”—text-based virtual sex
in which (at least) two people talk through a sexual encounter. Sometimes this talking is just talk. Sometimes something more is going on. But in any case, tinySex is asignificant part of the history of MUDs, as its cognates are in other parts of cyberspace and in real space as well.3
In an early and prominent MUD, there appeared a character who was particularly interested in tinySex, and especially in tinySex with famous MUD characters.
This character (a man in real space) “was” a woman, and he proceeded to “seduce”(tinySeduce?) a string of famous characters. Off they would go to some “privateroom” and engage in a tinySex affair. Many famous MUDers were seduced by thischaracter, who engaged in quite a bit of tinySex.

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We know this because the character recorded these tinySex t rysts, both the seduction and the sex that followed. After collecting a large number of victims, heposted the recordings. Now sitting in the MUD space of this previously flourishingcommunity were the transcripts of sexual encounters by some of the most prominent members of the community. All Monica,all the time, but long before any Monica existed.
Now of course, there have always been affairs. People have always raced off tosome corner to engage in sex, whether tiny or not. And there have always been
people who just love to kiss and tell. But rather than the similarities, think aboutsome of the differences. It is not just the fact that an affair has occurred, but thatevery twist of the event is replayed. And it is not just that a recording exists, but that
this “recording” is posted in a prominent and searchable space. The private goingson were monitored, in a space that makes monitoring extremely easy. The productof this monitoring is then searchable—the design makes that easy as well. Everymove is captured; only some are discarded;the rest remain out there to be searched.
This event destroyed this MUD community. People could not quite face eachother in the same way again. They moved on, took different characters, or left MUD
space entirely. No laws had been broken, but the space was destroyed.
And so it should be, you might be tempted to say. Perhaps it is best that a bit oflight flushed out this sort of “deviant” behavior, that we live in a world where our actions accord with our words, where we are who we seem to be. Perhaps we are better
off living in such a world, and maybe it is good that cyberspace makes this possible.
There is a part of anyone’s life that is monitored, and there is a part that can besearched. The monitored is that part of one’s daily existence that others see or noticeand that others can respond to, if response is appropriate. As I walk down the street,
my behavior is monitored. If I walked down the street in a small village in western
China, my behavior would be monitored quite extensively. This monitoring in bothcases would be transitory. People would notice, for example, if I were walking with
an elephant or walking in a dress, but if there were nothing sp ecial about my walk,
if I simply blended into the crowd, then I might be noticed for the moment but forgotten soon after—more quickly in Cambridge, perhaps, than in China.
The searchable is the part of your life that leaves, or is, a record. Scribblings inyour diary leave a record of your thoughts. Stuff in your house is a record of what
you possess. The recordings on your telephone answering machine are a record of
who called and what they said. These parts of your life are not so ephemeral. They
instead remain to be reviewed—if technology and the law permit.
Privacy, as Ethan Katsh defines it, is the power to control what others can cometo know about you. 4 People gain knowledge about you in only two ways—throughmonitoring or searching (or by reports relying on the results of monitoring andsearching). One can do little about gossip, and the law can do little about reporting.
So to understand the real privacy that you have, we must understand something
about these two ideas of monitoring and searching. What are the constraints in real144

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space on others’ ability to monitor and search,and how do those constraints change
as we move to cyberspace?
I begin by examining these two questions separately, marking out the changes
that cyberspace might bring and identifying the latent ambiguities that thesechanges reveal.5 Then,as in the last chapter, I will consider arguments on both sidesof these ambiguities. Again, in the end I will push one side. But whether you accept
my position is not as important to me as whether you accept the idea that an argument for a position is required. Here too we do not have a decision of the framers tofollow. We must make our own.

S P A C E S

P R O T E C T E D

B Y

L A W

Recall the worm from the start of this book:a bit of code works itself onto your machine, scans your disk, and reports back to some central place facts about your machine. “Illegal copy of Word 98,” or, “Multiple copies of Now Utilities,” or, “NSA
Document 5G67K13”—such facts are reported if they are true; nothing is reported
if they are not.
This example may have seemed oddly removed from the mainstream of privacy
issues. After all, we do not really think the government has a set of worms working
themselves across the Net, spying on people (though it is alleged by some that the
NSA installs sniffers at various network switches).
But whether or not the specifics of the example convince you, the general formshould. We can imagine a host of contexts where the burdens of a search have been
eliminated and its perfection increased, and where the constitutional question
raised by the search is thus made all the more difficult.
In each of these contexts, the same question presents itself: Is the constitutional
value a protection against unjustified burdens imposed by the state, or is it a substantive value of privacy? When the burden decreases, does the protected privacy decrease? Is the protection against state trespass or against incursions into a particularspace? This is the same question that Louis Brandeis and William Howard Taft confronted in the wiretapping case of 1928.6 It is a question we must now ask in an increasingly large range of our own private lives.
I consider some of that range in the section that follows. My aim is to explore theconstitutional question that this change presents; I am not talking about statutory
protections, which are in fact quite rich. My question is: What would the Constitution protect absent the protections of a statute?7
I am also not considering any technological steps that the individual might taketo protect privacy on her own.I consider that in a section that follows.

E-mailElectronic mail is a text-based message stored in digital form. It is like a transcribed telephone call. When sent from one person to another, e-mail is copied andprivacy145transmitted 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 unlike atelephone call, this content is saved, and once saved, it is monitorable, archivable,
and searchable. Companies can build routines that watch the interactions between
employees, that watch what is said to others, and that collect and organize what issaid, to be used as the company sees fit.
Can,and do. The single greatest invasion of any sensible space of privacy that cyberspace has produced is the extraordinary monitoring of employees in which corporations now en ga ge . On the theory that they “own the computer,” employers
increasingly snoop in the e-mail of employees, looking for stuff they deem improper.
To be sure, in principle, such monitoring and searching are possible with telephone calls or letters. But in practi ce ,t h ey are not. To monitor telephones or regularmail requires time and money—that is, human intervention. And this cost meansthat most won’t do it. Here again, the costs of control yield a certain kind of freedom.
This freedom is reduced as the costs of searching fall. More content can besearched without imposing any burden on the target of the search. Should protections against searching therefore fall as well?

V-mail
If e-mail, why not v-mail? Voice mail systems archive messages and record thecommunication attributes of the conversations.8 As technologies for voice recognition improve, so does the ability to search voice records. These records exist inarchives and could be searched, just as the NSA scans international telephone calls,
for example.9 And thus, we could well imagine technologies that would allow us toscan v-mail, looking for key words or topics and pulling out from a general archive
only those keys.
This search would also impose no burden on the user. It could be targeted on
and limited to sp ecific topics, and it could operate in the background without anyone ever knowing. Does a constitutional privacy speak to these practices?
Video
A picture might be worth a thousand words, but Hewlett-Packard has found a
way to represent a face in less than a hundred bytes.10 A face can be captured,stored, and matched against video archives of l oc a ti on s . Hewlett-Packard estimates that even at one hundred yards its technologies could identify the face in avideotape. Using video cameras located around a city, the government could begin
to monitor where people go by attempting to identify the people captured by thecameras.
But that is the future. Even now video technologies are used to identify license
plates in the Channel Tunnel11 or vehicles entering airport parking garages. 12 Using

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C O D Ethese technologies, and others, it will become increasingly easy to monitor movements in public.

Telephones
Cell phones need to locate themselves so that transmitters can follow the caller
as she moves from one zone to another. These data about location are collected bysystems that service the call. But obviously these data could be put to other uses,
such as monitoring and tracking. And as I described in chapter 5, the FBI is now
pushing for this data to be made readily available so that the government, if it wants,
can track who it wants.
Of course, the FBI justifies such tracking not by arguing that it wants the ability
to spy but by citing public safety reasons. If we could track your cell phone’s location, the argument goes, then when you call 911, it would be easier for emergency
relief services to be dispatched to find you. True enough, though of course, the system could also be programmed to report locations only when 911 was dialed. The
FBI, not surprisingly, overlooked that possibility.13
In each case, there is a question about whether to protect the space against invasions by the government (the constitutional question). Textually, the Constitution
seems to require that we answer that question by asking what is “reasonable.” Historically, we have determined what is reasonable by weighing the burdens,taking thetechnologies that produce them for granted. It was a given that searching a house isinvasive, and a given that listening to phone calls is too expensive. These givens havegoverned what kind of privacy seemed reasonable. We took the world as we foundit, and then built our privacy around that.
But in the digital world these burdens are not givens. Burdens are determined by
the architectures of the spa ce, and these architectures are plastic. If the protection
turns on how burdensome a search is,then we can design the space to eliminate theburden. And if we do that,then the question rightly becomes whether the protection
for privacy is eliminated as well.
The answer to that question depends, of course, on the conception of privacy atstake. The kind of privacy I have spoken of already—as a way to minimize intrusion—is only the first of at least three conceptions.
P ri vacytoM in im iz e

Bur de n

The first conception, which we could call the utility conception, seeks to minimize
intrusion. We want to be left alone, not interfered with, not troubled. And so wewant a protection that minimizes the extent to which tranquillity is disturbed.
Sometimes the state will have reason to search us or to interfere with our peace. But
we want this interference kept at a minimum. The test then is the burden of thestate’s intervention; when an intervention can be made less burdensome,the protection against it decreases as well.

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P ri vac y

as

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D ign ity

The second conception tracks dignity. Even if a search does not bother you at all, oreven if you do not notice the search, this conception of privacy holds that the very
idea of a search of your possessions is an offense to your dignity. From this perspective, if the state wants to search your house, it had better have a good reason. Its
search 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 tragicallycommon encounter in Washington, D.C.A friend and I had arranged a “police ridealong”—riding with District police during their ordinary patrol. The neighborhood
we patrolled was among the poorest in the city, and around 11:00 P.M. a report camein that a car alarm had been tripped in a location close to ours. When we arrived
near the scene,at least five police officers were attempting to hold three youths; threeof the officers were holding the suspects flat against the wall, with their legs spreadand their faces pressed against the brick.
These three were “suspects”—they were near a car alarm when it went off—andyet,from the looks of things, you would have thought they had been caught holding
the Hope diamond.
And then an extraordinary disruption broke out. To the surprise of everyone,
and to my terror (for this seemed a tinder box, and what I am about to describe
seemed a match), one of the three youths, no older than seventeen, turned aroundin a fit of anger and started screaming at the cops.“Every time anything happens inthis neighborhood, I get thrown against the wall,and a gun pushed against my head.
I’ve never done anything illegal, but I’m constantly being pushed around by copswith guns.”
His friend then tu rn ed 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 e verything will becool.”“I’m not going to cool it. Why the fuck do I have to live this way? I am not acriminal. I don’t deserve to be treated like this. Someday one of these guns is goingto go off by accident—and then I’ll be a fucking statistic. 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 aminute. If you check out, you’ll be free to go. Just relax.”
In the voice of rage of the first youth was the claim 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. I was reminded of an opinion by Justice Scalia (an odd association, I realize, but I had worked for the man), who wondered whether the framersof the Con s ti tution would have considered constitutional the police practiceknown as a “Terry stop”—stopping and frisking any individual whenever the police
have a reasonable suspicion. As Justice Scalia wrote: “I frankly doubt . . . whether

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C O D Ethe fiercely proud men who adopted our Fourth Amendment would have allowed
themselves to be subjected, on mere suspicion of being armed and dangerous, tosuch indignity.”14
And yet, on the other hand, there is the argument of minimal intrusion. If privacy is a protection against unjustified and excessive disruption,then this was no invasion 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 burdensome intrusions,and this search,
the second youth argued, was not so unreasonable and burdensome as to justify thefit of anger (which also risked a much greater danger).
Pr ivac yas

S ub st an tiv e

These two conceptions of privacy, however, are distinct from a third, which is aboutneither preserving dignity nor minimizing intrusion but instead is substantive—
privacy as a way to constrain the power of the state to regulate. Here the work of
William Stuntz is a guide.15 Stuntz argues that the real purpose of the Fourth and
Fifth Amendments is to make some types of regulation too difficult to effect bymaking the evidence needed to prosecute violations unavailable.
This is a hard idea for us to imagine, for in our world the sources of evidence are
many—credit card records, telephone records, video cameras at 7-Elevens, and soon. But put yourself back two hundred years, when the only real evidence was testimony and things. Imagine that in that time the state wanted to punish you for “sediti on .” The only good evidence of sedition would be your writings or your own
testimony about your thoughts. If those two sources were eliminated,then it would
be practically impossible to prosecute sedition successfully.
As Stuntz argues, this is just what the Fourth and Fifth Amendments do. Combined, they make collecting the evidence for a crime like sedition impossible,
thereby making a crime like sedition impossible. And not just sedition—as Stuntz
argues, the effect of the Fourth, Fifth, and Sixth Amendments was to restrict thescope of regulation that was practically possible. As he captures the idea: “Just as alaw banning the use of contraceptives would tend to encourage bedroom searches,
so also would a ban on bedroom searches tend to discourage laws prohibiting contraceptives.”16
But were not such searches already restricted by, for example, the First Amendment? Would not a law punishing seditious libel have been unconstitutional in any
case? In fact, it was not 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.17 Many thought these laws unconstitutional. But the Fourth and Fifth
Amendments would have been effective limits on their enforcement, whether thesubstantive laws were constitutional or not.

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On this conception, privacy is a substantive limit on government’s power.18 As a
restriction on the power of government to enforce certain laws, it provides a substantive limit on the kinds of regulation that government can effectively impose.
Understood this way, privacy does more than protect dignity or limit intrusion; privacy limits what government can do.
C hoo si ngaC once pt i onofP r iva cy

In principle,these three distinct conceptions of privacy could yield different results
depending on the case.A search, for example, might not be intrusive but might offend dignity. In that case, we would have to choose a conception of privacy that we
believed best captured the Constitution’s protection.
At the time of the founding, however, these different conceptions of privacy
probably would not, for the most part, have yi el ded different conclusions. Any
search that reached beyond the substantive limits of the amendment, or beyond thelimits of dignity, would also have been a disturbance. Half of the framers could haveheld the dignity conception and half the utility conception, but because every searchwould have involved a violation of both, all the framers could have endorsed theprotections of the Fourth Amendment.
Today, however, these three conceptions could yield different results. The utility
conception could permit efficient searches that are forbidden by the dignity andsubstantive conceptions. The correct translation (as Brandeis employed the term in
the Olmstead wiretapping case) depends on selecting the proper conception totranslate.
In this sense, our original protections were the product of what Cass Sunsteincalls an “incompletely theorized agreement.”19 Given the technology of the time,
there was no reason to work out which theory underlay the constitutional text; allthree were consistent with existing technology. But as the technology has changed,
the original context has been challenged. Now that technologies such as the worm
can search without disturbing, there is a conflict about what the Fourth Amendment
protects.
This conflict is the other side of Sunstein’s incompletely theorized agreement.
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 rendered patent by theevolution of technology. And this in turn forces us to choose.
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 constitutional jurisprudence, but it is not very helpful here. I do not think the framers worked out
what the amen d m ent would pro tect in a world wh ere perfect ly non i nva s ive
searches could be conducted. They did not establish a constitution to apply in all
possible worlds. They established a constitution for their world. When their world

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differs from ours in a way that reveals a choice they did not have to make, then weneed to make that choice.20

C O N T R O L L E D

U S E

Two years ago I received in my mailbox a letter from AT&T. It was addressed to an
old girlfriend, but the letter had not been forwarded. The address was my thencurrent apartment. AT&T wanted to offer her a new credit card. They were a bit late:
she and I had broken up eight years before. Since then,she had moved to Texas, andI had moved to Chicago, to Washington,back to Chicago, on to New Haven, back to
Chicago, and finally to Boston, where I had moved twice. My peripateticism, however, did not deter AT&T. With great faith in my constancy, it believed that livingwith me in this apar tment was a woman I had not even seen in three years.
How did AT&T maintain such a belief? Well, floating about in cyberspace is lotsof data about me. It has been collected 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.
What exactly should we think about this constant electronic monitoring?21
The lawyer’s unthinking response might be this: it has always been possible forpeople to be monitored and profiled. Governments do it all the time; so do corporations. More important, so do small communities. Not long ago most people lived
in communities that constantly monitored everyone’s behavior. Your comings andgoings, who you were with, how much you spent at the market—all this was knownby your neighbors, nosey or not. There may have been no video camera wat ching
you when you went to the market to buy groceries. But something worse—yourneighbors—did. They saw when you went, and with whom, and they, unlike video
cameras, could gossip. So what we have now is just the same as what we had then.
Maybe more entities are able to monitor, and maybe more activity is monitored. But
the fact that monitoring goes on has not changed at all.
This type of argument is ubiquitous in law—“it’s the same sort of thing as in
1791, so nothing is different”—and as an argument it is universally bad. The question is not whether there was something the n like what happens now. The questionis whether what happens now is substantially different. (A tiger is like a kitten, but
unlike a kitten a tiger is not a pet.) I f it is different, then we must ask whether weought to treat it differently.
The monitoring of modern life is indeed different in substance from the monitoring at the time of the founding. There is no doubt that life then was monitored,that it was hard to hide yourself from others, but that monitoring was different. It
was done by people whose memories were imperfect and who were likely to notice
only behavior out of the ordinary. These memories, moreover, could not besearched, or collected, or produced as records. A private eye might interview theprivacy151

neighbors to learn what they saw, but as any investigator knows, what people saw is
an extraordinarily imperfect record of what a ctually happened. Gossipy neighbors
might have watched, but their watching produced nothing as lasting or as reliable asvideotape, a toll booth’s electronic records of when you entered and when you left,a credit card system’s endless collection of data about your purchases, or the telephone system’s records of who you called when and for how long.
Today’s monitoring is different because the technologies of monitoring—theirefficiency and their power—are different. In the 1790s the technology was humans;
now it is machines. Then the technology noticed only what was different;now it notices any transaction. Then the default was that searchable records were not collected; now the default is that all monitoring produces searchable records.
These differences add up.22 Together they constitute monitoring of potentially
far greater significance. What exactly is the threat posed by this greater monitoring? Why is it troubling if all the information in the world about me is collected?
What possible harm could it do to me—assuming (and of course you should assume this) that I have done nothing bad? What are the consequences of a perfectly
monitorable world?
I am considering here only collecting that is perfectly legal. I am not talking
about breaking into someone’s house and reading her diary, or stealing informationfrom bank records.I am not discussing invasions of privacy in the traditional sense.
My focus here is on the data collected about an individual in day-to-day interactions,data that an individual,in a sense,displays to the world. What could be wrong
with collecting what is publicly displayed?
Arguments rage on both sides of this question, one side arguing that there is noharm from this sort of monitoring, the other side arguing the opposite.
The latter argument assumes that the balance of privacy is struck at the line
where you reveal information about yourself to the public. Sure, information kept
behind closed doors, or written in a private diar y, should be protected by the law.
But when you go out in public, when you make transactions there or send material
there, you give up any right to privacy. Others now have the right to collect data
about your public behavior and do with it what it suits them to do.23
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 then collects data about what you buy. With that data,
the store may market different goods to you or figure out how better to price its
products; it may even decide that it should offer different mixes of discounts tobetter serve customers. These responses, the argument goe s ,a re 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 data about you are not usable by others, then it is as if you were requiringothers to discard what you have deposited on their land. If you do not likeothers using information about you, do not put it in their hands.

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Third,these data actually do some good.I do not know why Nike thinks I ama 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 aboutme. I would love it if Nike knew enough to leave me alone. And if these data
were better collected and sorted, it would.
Finally, no one spends money collecting these data to a ctually learn anything
about you. They want to learn about people like you. They want to know yourtype. In principle,they would be happy to know your type even if they could
not then learn who you are. What the merchants want is a way to discriminate—only in the sense of being able to tell the difference between sorts ofpeople.

The other side of this argument,however, also has a point.24 It begins,as we havedone elsewhere, by noticing the values that were originally protected by the imperfection of monitoring technology. This imperfection helped preserve important
substantive values. One such value is the benefit of innocence. At any given time,
there are innocent facts about you that may appear, in a particular context or to aparticular set, guilty. Peter Lewis, in a New York Times article called “Forget Big
Brother,” puts the point well:
Surveillance cameras followed the attractive young blond woman through thelobby of the midtown Manhattan hotel, kept a glassy eye on her as she rode theelevator 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 the digital readout superimposed on 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 East Village woman young
enough to be his daughter.

“As a matter of fact,” Lewis writes, “she is my daughter.”25
One lesson of the story is the burden of these monitored facts. The burden is onyou, the monitored, first to establish your innocence, and second, to assure all who
might see these ambiguous facts that you are innocent. Both processes, however, areimperfect; say what you want, doubts will remain. There are always some who will
not believe your plea of innocence.
Modern monitoring only exacerbates this problem. Your life becomes an everincreasing record; your actions are forever held in storage, open to being revealed at
any time, and therefore at any time demanding a justification.
A second value follows directly from this modern capacity for archiving data. We
all desire to live in separate communities, or among or within separate normative
spaces. Privacy, or the ability to control data about yourself, supports this desire. Itprivacy153

enables these multiple communities and disables the power of one dominant community to norm others into oblivion. Think, for example,about a gay man in an intolerant small town.
The point comes through most clearly when contrasted with an argument recently advanced by David Brin.26 Brin argues against this concern with privacy—atleast if privacy is defined as the need to block the production and distribution ofdata about others. He argues against it because he believes that such an end is impossible; the genie is out of the bottle. Better, he suggests, to find ways to ensure that
this data-gathering ability is generally available. The solution to 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 distribution of spying
techniques?
The other is more telling. Brin assumes that this counterspying would be useful
to hold others “accountable.” But according to whose norms? “Accountable” is a benign term only so long as we have confidence in the community doing the accounting. When we live in multiple communities, accountability becomes a way for one
community to impose its view of propriety on another. And 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 imp erfection 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 on “mortgage”
in a web search engine, advertising for mortgages appears on your computer screen.
The same for sex and for cars. Advertising is linked to the search you submit. Data
about the search are collected—and not just about the search. The site collects every
bit of personal information about you that it can. 27
Data collection is the dominant activity of commercial web sites. Some 92 percent of them collect personal data fr om web users, which they then aggregate, sort,and use.28 Oscar Gandy calls this the “panoptic sort”—a vast structure for collecting
data and discriminating on the basis of that data—and it is this discrimination, hesays,that ought to concern us.29
But why should it concern us? Put aside an important class of problems—themisuse of the data—and focus instead on its ordinary use. As I said earlier, themain effect is simply to make the market work more smoo t h ly: produ cts arematched to people, and interests to people, in a way that is better targeted and lessintrusive than what we have today. Imagine a world where advertisers could tellwhich venues paid and which did not; where it was inefficient to advertise withbillboards and on broadcasts; where most advertising was targeted and specific.
Advertising would be more likely to go to those people for whom it would be useful information. Or so the argument goes. This is discrimination, no doubt, but154

C O D Enot the discrimination of Jim Crow. It is the wonderful sort of discrimination thatspares me Nike ads.
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 is about manipulation. You might be skeptical about the power of
television advertising to control p eople’s desires. Television is so obvious, the motives so clear. But what happens when the motive is not so obvious? When options
just seem to appear right when you happen to want them? When the system seems
to know what you want better and earlier than you do, how can you know wherethese desires really come from?
Whether this possibility is a realistic one, or whether it should be a concern, arehard and open questions. Steven Johnson argues quite effectively that in fact theseagents of choice will facilitate a much greater range and diversity—even, in part,chaos—of choice.30 But there’s another possibility as well—profiles will begin tonormalize the population from which the norm is drawn. The observing will affectthe observed. The system watches what you do; it fits you into a pattern; the patternis then fed back to you in the form of 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 UnitedStates economic thought was animated by an ideal of equality. In the civil space individuals were held to be equal. They could purchase and sell equally; they could approach others on equal terms. Facts about individuals might be known,and some ofthese facts might disqualify them from some economic transactions—your priorbankruptcy, for example, might inhibit your ability to make transactions in the future. But in the main, there were spaces of relative anonymity, and economic transactions could occur within that anonymity.31
Over time this space of equality has been displaced by economic zonings that
aim at segregation.32 They are laws,that is,that promote distinctions based on social
or economic criteria.33 The most telling example is zoning itself. It was not until thiscentury that local law was used to put people into segregated spaces.34 At first, thislaw was racially based, but when racially based zoning was struck down, the techniques of zoning shifted.35
It is interesting to recall just how contentious this use of law was.36 To many, richand poor alike,it was an affront to the American ideal of equality to make where youlive depend on how much money you had. It always does, of course, when property
is something you must buy. But zoning laws add the 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.
There was a time when we would have defined our country as a place that aimed
to erase these distinctions. The historian Gordon Wood describes this goal as an important element of the revolution that gave birth to the United States.37 The enemy

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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 information before they can make discriminationsof rank. Having enough information about people required,historically, fairly stablesocial orders. Making fine class distinctions—knowing, for instance, whether a welldressed young man was the gentleman he claimed to be or only a dressed-up tradesman—required a knowledge of local fashions, accents,customs, and manners. Only
where there was relatively little mobility could these systems of hierarchy be imposed.
As mobility increased, then, these hierarchical systems were challenged. Beyond
the extremes of the very rich and very poor, the ability to make subtle distinctions ofrank disappeared as the mobility and fluidity of society made them too difficult t o
track.
Profiling changes all this. An efficient and effective system for monitoring makes
it possible once again to make these subtle distinctions of rank. Collecting data
cheaply and efficiently will take us back to the past. Think about frequent 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.
When a frequent flyer makes a reservation, the reservation carries with 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 thisperson flies. Some airlines would then discriminate on the basis of this information.
The most obvious way is through seat location—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 ismore general. Frequent flyer systems permit the re-creation of systems of status.
They supply information about individuals that organizations might value,and use,
in dispensing services.38 They make discrimination possible because they restore information that mobility destroyed. They are ways of defeating one benefit ofanonymity—the benefit of equality.
Economists will argue that in many contexts this ability to discriminate—in effect, to offer goods at different prices to different people—is overall a benefit.39 On
average, people are better off if price discrimination occurs than if it does not. So weare 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 thevalues 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 practice 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:

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C O D EIn the early 1900s, as tipping became increasingly popular, it provoked great
moral and social controversy. In fact, there were nationwide efforts, some successful, by state legislatures to abolish tipping by turning it into a punishable misdemeanor. In countless newspaper editorials and magazine articles, in etiquettebooks, 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 and enlisted men of the United States Navy to include tips as an item in their travel
expense vouchers,the decision was denounced as an illegitimate endorsement ofgraft. Periodically, there were calls to organize anti-tipping leagues. 40

There is a conception of equality animating the history that Zelizer recounts thatwould be corrupted by the efficiency that profiling embraces. In both cases, there isa value that is weighed against efficiency. Although I believe this value is relatively
weak in American life, who am I to say? The important point is not about what isstrong or weak, but about the tension or conflict that lay dormant until revealed by
the emerging technology of profiling.
The pattern should be familiar by now, for the change is the change we have seenelsewhere. Once again, the code changes, throwing into relief a conflict of values.
Whereas before there was relative equality because the information that enabled discrimination was too costly to acquire, now it pays to discriminate. The difference—
what makes it pay—is the emergence of a code. The code changes, the behavior
changes, and a value latent in the prior regime is displaced.
We could react by hobbling the code,thus preserving this world. We could create
constitutional or statutory restrictions that prevent a move to this world. Or we
could find ways to reconcile this emerging world with the values we think are fundamental.

S O L U T I O N S

I’ve identified two distinct threats to the values of privacy that we might imagine cyberspace presenting. No doubt there are others. And no doubt it is an open question
how seriously we will take these threats. But I want to end by considering a few responses. How might we,if convinced of the danger or committed to privacy values,
act to restore in the individual a kind of control over these personal data that arecollected and searchable by the architectures of cyberspace?
The problems are of two sorts. The first is the question of “efficient invasion”:
technologies now enable searching with none of the burdens that searches ordinarily entailed. Second is the question of monitoring, and the control over data thatmonitoring produces. These two problems invite different solutions.I touch on thefirst, and then focus on the second.

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One note in advance: even this distinction is ambiguous. It presumes some natural division between searching and monitoring. No doubt, given a particular archi tecture, there is such a division. But when architectures are plastic, the line between
monitoring and searching is plastic as well. An architecture can be designed to makea certain behavior monitorable, or it can be designed to necessitate a search to findthat behavior.
Telephones are an easy example.One could design telephone networks to reportwith each call who was called, where that person lives, how long the call lasted, andfrom which line it was made. Indeed, this is how telephone networks today are designed. Given this design, this information is now monitorable, whereas under an
earlier design obtaining the same information required a search.
If changing the architecture can change data from searchable to monitorable,
then the values that are being protected in both contexts must be consistent. My aim
in the next two sections is to articulate a structure that might support this consistency.

S E A R C H A B L E :P R O M I S E

O F

T H E

P O W E R

O F

C O D E

A N D

T H E

P R O C E D U R E

Remember the problem: systems that can invade, or search, without anyone knowing or being disturbed. To this (and any) problem, we might imagine two sorts ofsolutions.One solution is code-based:make it harder to search effectively. The othersolution is law-based: add legal protections to inhibit improper searches. I consider
the code-based solution first, since it is the more familiar and more easily summarized.
Encryption. As we saw in chapter 4, the primary use of technologies of encryption is to hide your words from the eyes of others. Encrypted communication creates a p rivate language between the listener and the speaker. While arguments rage
about whether an encrypted communication can actually be cracked,41 for most ofwhat most of us would want to say, existing encryption is perfectly adequate.
But it is not common. Thus, one solution to improve privacy is a far greater deployment of encryption code. This is already happening, though the deployment
has been hampered by the government’s efforts to control encryption. But slowly—
and again, as a (good) by-product of commerce—the Net is becoming encryptionrich.
But encryption will not solve the problem of privacy. Encrypted communication
would be harder for the government to overhear, but it would not disable the government’s legitimate demands for data. If the government has the right to force you
to reveal the contents of a document,then it also has the right to force you to reveal
the key that locks the document.42 Moreover, not all electronic communication iseasily encrypted. Some people therefore will demand a solution beyond code.

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This solution should track two particular values protecting real-space privacy.
First,any burden must be minimal,and any search that creates more than a minimalburden must be justified by individualized suspicion. 43 Second, any search must be
disclosed—individuals must be given notice that their space has been searched.44
It might be said that the principle behind the second idea is to ban all of these inoffensive and invisible searches. Perhaps that should be done. But if we understandthis second idea to be about checking the abuse of power (since by giving notice you
give someone opportunity to complain), then we might imagine substitutions that
protect the same value without sacrificing the benefit these technologies mightbring.
A translation, therefore, might well look like this. Although the technology
would enable these costless searches, they should be deployed only when adequate
and strong procedural limits have been met. And adequate and strong procedural
limits would include the requirement that two branches of government (not just theexecutive) concur before any invasion occurs.45
But what would invasion mean? Again, architectures could be designed to makedata accessible without an invasion; they could be designed, that is, to make data
monitorable, so that a search of the records of monitoring would involve no invasion at all.
The choice we must make is between two conceptions of law enforcement thattoday are mixed. One conception is reactive, responding to an event; the other ispreventive, predicting an event. The reactive model would define invasion as any
sifting to identify a culprit; this sifting, the argument goes, should be allowed only
when there is cause to suspect. Scanning the innocent, on this view, would not be
permitted,though collecting data to enable a subsequent scan might be.
The preventive conception would allow constant monitoring. The values of procedure here would simply control how much you would have to know about thepeople you are monitoring in order to commence monitoring; but you could still
design this space to enable monitoring, and you could monitor for patterns suggesting misbehavior.
For a real-space example not far from present technology, think about airport
searches. Technology is now being developed to enable something called bodyscans. These would enable an official to peer through your clothes to see whether
you are concealing weapons. We might imagine any number of ways to deploy thistechnology. In a purely reactive mode, we might say that only the suspicious canbe subjected to the body scan, though a fear about selective suspiciousness mightpush us to make the scan general. There is no insult in being scanned, the argument goes, if everyone else is; there is only an insult if you have been picked out
from the crowd.
But even if everyone were scanned, there would be questions about how the system should be designed. Would the officials see the people whose bodies they were
scanning? Imagine, in one version, officers watching people enter a booth, seeing
what is under their clothes, and then watching (leering) as they leave. Contrast thatprivacy159

system with one in which the officers are located elsewhere, the images they see are
cut up by the computer, and though they still see what is under people’s clothes,theycannot automatically connect what they are seeing to particular individuals.
Whatever you think about this procedure in general,the second design is a more
effective balance of interests than the first. Still, even with this second design there
remains this latent question of how far we will push the preventive over the exceptional. Airports are exceptional, though this technology could be extended beyond
airports. Whether it should be is the choice pressed on us by these changes in code.

M O N I T O R I N G :T H E

R E - S O L U T I O N

T H R O U G H

P R O P E R T Y

Control over the results of monitoring is a more ambitious project. The traditional
solution is to enact laws to deal with the problem. That has been Europe’s solution,for example—extensive and sustained support for legal protections against the misuse of data. The substance of such law is, I think, uncontroversial. Its values are essentially “notice” and “choice”—companies will inform consumers about how data
will be used and not use it for any other purpose. Its aim is to restore to the individual control over the use of data about herself.46
But in the United States we have turned to law less often. Although sensational
abuses have at times produced targ eted federal laws, they have not led to comprehensive legal protection.47
This is not to say, of course, that we have no protections for privacy. As we haveseen throughout, there are other laws besides federal ones, as well as regulators besides the law. At times these other forms of protection may protect privacy better
than law does. Obviously, if we want to understand the protections for privacy, we
should understand how these interventions matter.
The U.S. government has argued for a type of industry “self-regulation” expressed through industrial codes of conduct. An old idea strangely called “new”(thesame practices were popular during the New Deal),self-regulation lets industries set
the rules about how data ought to be protected. Once they set the rules, the argument goes, pressure from other members of the industry, or from the market itself,
could force a sustained compliance.
Of course, norms can be effective regulators. But a necessary condition of theirsuccess is that the community of norm enforcers include those who bear the cost of
the behavior being regulated. And I confess to being skeptical that this is in fact happening here. The industry that would develop the norms to regulate itself does notbear the relevant costs of the use of the data it co ll ects. That cost—the privacy
cost—is borne by individuals,not corporations; they are not part of the community
building the norm.
So rather than norms,I want to suggest a different regulatory mechanism—one
that relies on code rather than good behavior. In a world where the dimensions of160

C O D Edecision have been so r adically multiplied, we need a more effective way to control
what we collectively do.
The standard response to this question of data practices is choice—to give theindividual the right to choose how her data will be used. And the standard way wehave pushed individuals to choose is through text—through privacy statements thatreport a site’s privacy practices and then give the consumer the right to opt in or outof those practices.48
But the processing costs for text are wildly high. No one has the time or patience
to read through cumbersome documents describing obscure rules for controllingdata. What is needed is a way for the machine to negotiate our privacy concerns forus, a way to delegate the negotiating process to a smart agent—an electronic butler—who, like the butler, knows well what we like and what we do not like.
What is needed, that is, is a machine-to-machine protocol for negotiating privacy protections.49 The user sets her preferences once—specifies how she would negotiate privacy and what she is willing to give up—and from that moment on, when
she enters a site, the site and her machine negotiate. Only if the machines can agree
will the site be able to obtain her personal data.
The kernel to this architecture is a project sponsored by the World Wide Web
Consortium.50 Dubbed P3P, the project’s aim is to facilitate an architecture within
which users can express their preferences and negotiate the use of data about them.
“P3P products will allow users to be informed of site practices (in both machine andhuman readable formats), to delegate decisions to their computer when appropriate, and allow users to tailor their relationship to specific sites.”51
My aim is not to endorse this particular privacy architecture. P3P has its problems, not all of them clearly resolvable.52 My point instead is the same one madethroughout this book: we could imagine an architecture, tied to a market, that protects privacy rights in a way that real space cannot, but that architecture will not
emerge on its own. It needs the push of law.
The law would be a kind of property right in privacy. Individuals must have boththe ability to negotiate easily over privacy rights and the entitlement to privacy as adefault. That is property’s purpose: it says to those who want, you must negotiate
before you can take. P3P is the architecture to facilitate that negotiation; the law is
the rule that says negotiation must occur.
But why property? What is the benefit of a property regime? Why is it superior
to a regime that simply enforces rules (as the Europeans do)?
A property regime is fundamentally different from what we have now.53 Privacy
now is protected through liability rules—if you invade someone’s privacy, they cansue you and you must then pay. There are two important differences between liability rules and property rules.
The first difference is that a property regime requires negotiation before taking;a liability regime allows a taking, and payment later. The key to a property regime is
to give control, and power, to the person holding the property right; the key in a liability regime is to protect the right but facilitate the transfer of some asset from one

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person to another. There can be holdouts (people who will not agree to transfer)with a property regime; there can be no holdouts in a liability regime. There is individual control or autonomy with a property regime, but not with a liability regime.
Property protects choice; liability protects transfer.
The second difference follows directly from the first. With a liability rule, a court,
jury, or statute determines how valuable certain privacy is to you. Ordinarily, you arecompensated only for what a reasonable person would have suffered. It is like a regime
for buying and selling cars in which, rather than negotiating up front,
people simply take other people’s cars and a court later determines what they must pay.
Property regimes work very differently. When you have a p roperty right, before
someone takes your property they must negotiate with you about how much it isworth. If you have a sentimental attachment to your 1974 Nova, there is little thebuyer can do about it. The car’s market value might be $200, but if you will not sell
it for less than $1,000,the buyer is stuck. You cannot be forced to give up your Nova
unless you get your minimum price.
A property regime thus protects both those who value their privacy more thanothers and those who value it less, by requiring that someone who wants to take agiven resource must ask. Such a regime gives us c onfidence that if a trade occurs, itwill be at a price that makes neither party worse off.
There are those, especially on the left, who are radically skeptical about a property regime to protect privacy.54 Property is said to commodify, to marketize, tomonetize relations that are valuable on a very different scale. The last thing weneed, these skeptics argue, is to have another sphere of our lives ruled by the market.55
My impulse is to sympathize with this argument. But I am not convinced thatanything is ultimately gained by this insistence on theory. We are not debating
whether to move into a world where data are collected, used, and sold. We alreadylive in that world. Given that we are here, how can we ensure that at least some control is granted to those whom these data are about? I advocate a property regime notbecause of the sanctity of property as an ideal, but because of its utility in serving a
different but quite important ideal.
Those who take this ideal of privacy to an extreme have a very different view
about how the architecture should support it. The action group Privacy Now!, forexample,threatens terrorist action to disable the systems of data gathering and control.56 Marc Rotenberg of the Electronic Privacy Information Center (EPIC) argues
strongly against any architecture that enables the trading or exchange of privacy
rights.57 Both groups view privacy as a kind of inalienable right—one whose dignity
deserves the respect that we give the right to vote or the freedom to engage in sexual
relations. They believe that none of these rights ought to be sold, and that exchangeof any of them should be criminalized.
We could certainly construct a world where privacy was so viewed, and we could
build walls that the police defended. But I doubt that this extreme is actually ourview—or more important, that it ought to be.

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C O D EA world where privacy is commodified in this sense might turn out to be radically inferior. Or it might be fine. My argument is not from first principles; it is intended only as a pragmatic response to an emerging issue. If the world turns out not
to our liking, then of course we should modify the architectures.
But the key is to see the relationship between these architectures and the possibilities for exchange. As Justice Breyer argued about intellectual property, it may wellbe that constructing the architectures for exchange is all we need to do to ensure theprotection appropriate to the context.58 We will just have to see.

P R I V A C Y

C O M P A R E D

The reader who was dissatisfied with my argument 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?”
The charge is accurate enough. I have endorsed an architecture here that is essentially the same architecture I questioned for intellectual property. Both are
regimes for trading information; both make information “like” “real” property. Yetwith 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”;59 whatever it wants, we should
read the bargain that the law strikes with holders 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 treated differently. You do not strike a deal with the law about personal or private information.
The law does not offer you a monopoly right in exchange for your publication ofthese 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 r egime that allows us such peace by giving us control overprivate information is a regime consonant with public values. It is a regime thatpublic authorities should support.
This conclusion is subject to important qualifications, only two of 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 can buy. The
P3P regime would in principle enable upstream control of privacy rights as well as
individual control. If we lived, for example, in a regime that identified individualsprivacy163

based on jurisdiction, then transactions with the P3P regime could be limited basedon the rules for particular jurisdictions.
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 notpermitted to hide; more important, there may be claims about yourself that you are
not permitted to make (“I am a 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.
I started this chapter by claiming that with privacy the cat is already out of 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. 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 caninstruct their machines about the privacy they want to protect.
But how will we get there? How can this architecture be erected? Individuals may
want cyberspace to p rotect their privacy, but what would push cyberspace to buildin 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.

T W E L V E
fre e

speec hTh e r igh t t o f r ee speech is not t he r igh t t o speak for f r ee. It is not t he r igh t
to free access to television, or the right that people not hate you for what you haveto say. Strictly speaking—legally speaking—the right to free speech in the UnitedStates means the right to be free from punishment by the government in retaliation
for at least some (probably most) speech. You cannot be jailed for criticizing thepresident, though you can be jailed for threatening him; you cannot be fined for
promoting segrega ti on , though you will be shunned if you do; you cannot be
stopped from speaking in a public place,though you can be stopped from speaking
with an FM transmitter. Speech in the United States is protected—in a complex,andat times convoluted, way—but its constitutional protection is a protection against
the government.
Nevertheless, a constitutional a ccount of free speech that thought only of government would be radically incomplete.1 Two societies could have the same “First
Amendment”—the same protections against government’s wrath—but if within
one dissenters are tolerated while in the other they are shunned, the two societies
would be very different free speech societies. More than government constrains
speech, and more than government prote ct s free speech. A complete account of
this—and any—right must consider the full range of burdens and protections.
Consider, for example,the “rights” of the disabled to protection against discrimination. The law protects the disabled; social norms don’t, neither does the market,
and until the law intervened, neither did architectures. The net of these four modalities would describe the protection,in any particular context,that the disabled have.
Law might intervene to strengthen the protection—regulating architecture, for example, so that it better protects against discrimination in access. But for any given
mix we could understand these four modalities working together to protect (however slightly) the disabled from discrimination.
In the terms of chapter 7, we could then use the same four modalities to consider
within each context the protection from constraint, as well as the imposition of reg-

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ulatory constraints. Modalities of constraint (powers) function as a sword against
the object regulated; modalities of protection (rights) function as a shield for the
regulated against constraint. 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 would otherwise placeon the individual. I have not separated the four in the sphere of the shield because
obviously there is no direct match between the modality of constraint and themodality of protection. When law as protector conflicts with law as constraint, constitutional law overrides ordinary law.
These modalities function together. Some might undercut others, meaning thatthe sum of protections might seem to be less significant than the 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 the decriminalizationof drugs. The state cannot lock you up if,like George Soros, you start a campaign forthe decriminalization of marijuana or if, like the Nobel Prize–winning economist
Milton Friedman or the federal judge Richard Posner, you write articles suggesting
it. If the First Amendment 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 consequences forpromoting legalization of drugs. My neighbors would be appalled at the idea, andsome no doubt would shun me. Nor would the market necessarily support me. It166

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would be quite difficult to buy time on television for a speech advocating such a reform. Television stations have the right to select their ads (within some limits); they
do not like controversial or tasteless ads.2 Mine would most likely be deemed too
controversial. Stations also have the FCC—an active combatant in the war on
drugs—looking over their shoulders. And even if I were permitted to advertise,I am
not George Soros.I do not have millions to spend on such a campaign.I might manage a few off-hour spots on a local station, but I could not afford, for instance, acampaign on the networks during prime time.
Finally, architecture wouldn’t protect my speech very well either. In the UnitedStates 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 thinking you
a nut or a nuisance. There is no speakers’ corner in every city; most towns do nothave a town meeting. “America offline,” in this sense, is very much like America
Online—not designed to give individuals access to a wide audience to address
public matters. Only professionals get to address Americans on public 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 thegulag of social lunacy.
Thus, the protection for controversial speech is more conditional than a nar row
legal view would suggest. The right to be a dissenter is on balance less protected thanit could be when more than law is reckoned.
Let’s take this example now to cyberspace. How is the “right” to promote the legalization of drugs in cyberspace protected? Here too, of course,the law protects myright of advocacy—at least in the United States. It is quite possible that the same
speech would be illegal elsewhere and that perhaps I could be prosecuted for uttering such speech in cyberspace “in” another country. Speech promoting the Nazi
Party, for example, is legal in the Unit ed States but not in Germany.3 Uttering suchspeech in cyberspace may make one liable in German space as well.
The law therefore is an imperfect pro tecti on . Do norms help to pro tectspeech? With the relative anonymity of cyberspace and its growing size, norms do
not functi on well there to re s train con troversial speech . Even in cybers p ace s
where people know each other well, they are likely to be more tolerant of dissident views when they know (or believe, or hope) the dissident lives thousands ofmiles away.
The market provides a major protection to speech—relative to real space, market constraints on speech in cyberspace are tiny. Recall how easily Jake Baker becamea publisher, with a potential readership greater than the readership of all law books(like this one) published in the last decade.
But on top of this list of protectors of speech in cyberspace is architecture. Relative anonymity, decentralized distribution, multiple points of access, no necessary
tie to geography, no simple system to identify content, tools of encryption4—allthese features and consequences of the Internet protocol make it difficult to control
speech in cyberspace. The architecture of cyberspace is the real protector of speechfree speech

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there; it is the real “First Amendment in cyberspace,” and this First Amendment is
no local ordinance.5
Just think about what this means. For over fifty years the United States has been
the exporter o f a certain political ideology, at its core a conception of free sp eech.
Many have criticized this conception:some found it too extreme,others not extreme
enough. Repressive regimes—China, North Korea—rejected it directly; tolerant
regimes—France, Hungary—complained of cultural decay; egalitarian regimes—
the Scandinavian countries—puzzled over how we could think of ourselves as freewhen 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 undercover of night, we have now wired these nations with an architecture 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 monopoly of state-run television stations but can betransmitted from a simple modem. We have exported to the world, through the architecture of the Internet, a First Amendment in code more extreme than our own
First Amendment in law.
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 possible, and about thesignificance of law in the construction of that architecture. It is to get you to see how
this freedom is built—the constitutional politics in the architectures of cyberspace.
I say “politics” because this building is not over. As I have argued (over and overagain), there is no single architecture for cyberspace; there is no given or necessary
structure to its design. The first-generation Internet might well have breached wallsof control. But there is no reason to believe that architects of the second generation
will do so, or not to expect a second generation to build in 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.
We can already see the beginnings of this reconstruction. Already the architecture is being remade to reregulate what real-space architecture before made regulable. Already the Net is changing from free to controlled.
Some of these steps to reregulate are inevitable; some shift back is unavoidable.
Before the change is complete, however, we must understand the freedoms the Net
now provides and determine which freedoms we mean to preserve.
And not just preserve. The architecture of the Internet, as it is right now, is perhaps the most important model of free speech since the founding. This model has
implications far beyond e-mail and web pages. Two hundred years 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.

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But all that is to get ahead of the story. In the balance of this chapter, I want totell three stories—one about publication, one about access, and one about distribution. With each, I want to consider how “free speech” is regulated.
These stories do not all have the same constitutional significance. My aim in thefirst is to illustrate a relationship between architectures and institutions of freespeech; the second identifies another latent ambiguity in our constitutional regime;
and the third is a straightforward translation of the framing design. It is the thirdstory that, if correct, would prove the most fundamental, though all three illustrate
the relationship between values, architectures, and the choices they now present.

T H E

R E G U L A T O R S

O FS P E E C H :P U B L I C A T I O N

Floyd Abrams is one of America’s leading First Amendment lawyers. In 1971 he wasa young partner at the law firm of Cahill, Gordon.6 Late in the evening of Monday,
June 14, he received a call from James Goodale, in-house counsel for the New YorkTimes. Goodale asked Abrams, together with Alexander Bickel, a Yale Law School
professor, to defend the New York Times in a lawsuit that was to be filed the very nextday.
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 Vietnam Policy,” evaluated U.S.
policy during the Vietnam War.8 Their evaluation was extremely negative, and theirconclusions were devastating. The papers made the government look extremely badand 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;
who at first did not believe the war was unwinnable but who over time had come tosee the impossibility that the Vietnam War was.
This someone was Daniel Ellsberg. Ellsberg smuggled one of the fifteen copies ofthe papers from a safe at the RAND Corporation to an offsite photocopier. There,heand 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 themread into the Congressional Record. He eventually contacted the New York Times reporter Neil Sheehan in the hope that the Times would publish them. Ellsberg knewthat this was a criminal act, but for him the war itself was a criminal act;his aim wasto let the American people see just what kind of a crime it was.
For two and a half months the Times editors pored over the pap ers, working toverify their authenticity and accuracy. After an extensive review, the editors determined that they were authentic and resolved to publish the first of a ten-part seriesof excerpts and stories on Sunday, June 13, 1971.10

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On Monday afternoon, one day after the first installment appeared, Attorney
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 ar rangements for the return of these documents 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 documents.12
The government’s claims were simple: these papers contained government secrets; they were stolen from the possession of the government; to publish themwould put many American soldiers at risk and embarrass the United States in theeyes of the world. This concern about embarrassment was more than mere vanity:
embarrassment, the government argued, would weaken our bargaining position in
the efforts to negotiate a peace. Because of the harm that would come from further
publication, the Court should step in to stop it.
The argument was not unprecedented. Past courts had stopped the publicationof life-threatening texts, especially in the context of war. As the Supreme Court saidin Near v Minnesota, for example, “no one would question but that a government
might prevent actual obstruction to its recruiting service or the publication of thesailing dates of transports or the number and 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 thatthe government generally cannot exercise the power of prior restraint.14 “Prior restraint” is when the government gets a court to stop publication of some material,rather than punish the publisher later for what was 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.
The Court struggled with the question, but resolved it quickly. It struggled because the costs seemed so high, 16 but when it resolved the question, it did so quite
squarely against the government. In the Court’s reading, the Constitution gave the
New York Times the right to publish without the threat of prior restraint.
The Pentagon Papers is a First Amendment classic—a striking reminder of how
powerful a constitution can be. But even classics get old. In a recent speech, Abrams
asked an incredible question: Is the case really important anymore?
For the government 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 the showing depends on the publication not occurring—if the Pentagon Papers had already been published by the Chicago Tribune,
the government would 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 cannot prevent the cat from getting out of the bag.

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This point is made clear in a case that came after New York Times—a case that
could have been invented by a law professor. The Progressive was a left-wing magazine that in the late 1970s commissioned an article by Howard Morland about theworkings of an H-bomb. The Progressive first submitted the manuscript to the Department of Energy, and the government in turn brought an injunction to block its
publication. The government’s claim was compelling: to give to the world the secretsof how to build a bomb would make it possible for any terrorist to annihilate anycity. On March 26, 1979, Judge Robert Warren of the Western District of Wisconsin
agreed and issued a temporary restraining order enjoining The Progressive frompublishing the article.18
Unlike the Pentagon Papers case, this case 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. And for two
and a half months he thought. The publishers went to the Court o f Appeals, and to
the Supreme Court, asking each to hurry the thinking along. No one did anything.
Until Chuck Hansen, a computer programmer, ran a “Design Your Own HBomb” contest and circulated an eighteen-page letter in which he detailed his understanding of how an H-Bomb works. On September 16, 1979, the Press-Connection ofMadison, Wisconsin, published the letter. The next day the government moved towithdraw its case, conceding that it was now moot. The compelling interest of thegovernment ended once the secret was out.19
Note what this sequence implies. There is a need for the constitutional protection that the Pentagon Papers case represents only because there is a real constraint
on publishing. Publishing requires a publisher, and a publisher can be punished by
the state. But if the essence or facts of the publication are published elsewhere first,
then the need for constitutional protection disappears. Once the piece is published,
there is no further legal justification for suppressing it.
So, Abrams asks, would the case be important today? Is the constitutional protection of the Pentagon Papers case still essential?
Surprisingly, Floyd Abrams suggests not.20 Today there’s a way to ensure that the
government never has a compelling interest in asking a court to suppress 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. More quickly than its own newspaper is distributed, the papers would then be published in millions of places across the world. The need forthe constitutional protection would be erased, because the architecture of the systemgives anyone the power to publish, quickly and anonymously.
The architecture of the Net, Abrams argues, eliminates the need for the constitutional protection; even better, the Net protects against prior restraint just as theConstitution did—by ensuring that strong controls on information can no longer
be achieved. Abrams argues that the Net does what publication of the Pentagon Papers was designed to do—ensure that the truth does not remain hidden.

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But there’s a second side to this story.
On July 17, 1996, TWA Flight 800 fell from the sky ten miles off the southerncoast of Center Moriches, New York. Two hundred and thirty people were killed.
Immediately after the accident the United States launched the largest investigationof an airplane crash in the history of the Na ti onal Transportation Safety Board(NTSB), spending $27 million to discover the cause of the crash, which eventually
was determined to have been a mechanical failure.21
This was not, however, the view o f the Internet. From the beginning stories circulated about missiles—people said they saw a streaking light shoot toward theplane just before it went down. There were also stories about missile tests conductedby the Navy seventy miles from the crash site.22 And then there were reports of acover-up by the U.S. government to hide its involvement in one of the worst civil air
disasters in American history.
The government denied these reports, yet the more the government denied
them, the more contrary “evidence” appeared on the Net.23 There were repeated reports of sightings of missiles by witnesses on the ground. These reports, writers on
the Net claimed, were being “suppressed” by the government. The witnesses werebeing silenced. 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 suggested that friendly fire had shot down TWA 800.24
A former press secretary to President John F. Kennedy believed it. In a speech inFrance, Pierre Salinger announced that his government was hiding the facts of thecase, and that he had the proof.
I rem em ber this event well. I was talking to a colleague just after I heard
Salinger’s report. I recounted Salinger’s report to this colleague, a leading c onstitutional scholar from one of the top American law schools. We both were at a loss
about what to believe. There were cross-cutting intuitions about credibility. Salinger
was no nut, but the story was certainly loony.
Salinger, it turns out,had been caught by the Net. He had been tricked by the flipside of the point that everyone can publish. In a world where everyone can publish,
it is very hard to know what to believe. For publishers are also editors, and editors
make decisions about what to publish—decisions that ordinarily are driven at leastin part by the question, is it true? Statements cannot verify themselves. We cannot
always tell, from a sentence reporting a fact about the world, whether that sentenceis 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 the publisher. If the New York Times says that aliens havekidnapped the president, that is a different story from a story with the identicalwords published 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172

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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
would indeed be diminished. But if speech on the Net lacks credibility, the protections of the Constitution again become important.
“Credibility,” however, is not a quality that is legislated; nor is it coded. It comesfrom institutions of trust that help the reader separate reliable from unreliable
sources. Flight 800 thus raises an important question: How can we reestablish credibility in this space so that it is not lost to the loons?26
Two solutions are possible.One,a top-down solution, would empower editors—
people who select what should be published based on a host of considerations, including the truth of what is said. The other, bottom-up, would facilitate theconstruction of reputation—a measure of the significance of the speech that turns
on who is actually uttering it. In real space, of course, the two go together—editing
goes with publishing, and hence, because of the selections made by the editors at the
New York Times, the reputation of the New York Times is different from the reputation of the National Enquirer. We might have thought that the New York Times soldnewspapers. But cyberspace is teaching us that it sells editing services that happen to
be delivered on paper.
In cyberspace, these two functions could be distinct. Editing could be separate
from distribution, which means that there could be a greater competition among
editors. And credibility would be one of the values that editing services would sell.
Traditionally such credibility has been created by an institution of some stability—the New York Times, for example—serving a credentialing function. Being
hired as a reporter by the New York Times says something important about your status; the Times then has an interest in policing you—your misadventures would reflect negatively on the Times. The public gets the benefit of a clear structure of
responsibility.
We could see just this kind of reintermediation—restoration of intermediaries—
on the Net.27 But it could happen in other ways too. Imagine a kind of rating service
that, as with bonds or with medical malpractice insurance, rates the reputation ofeach reporter and source through some formula of its own determination. We could
imagine any number of such agencies, each providing reporters with ratings thatserve as their credential. The reporter’s rating would become part of every story
published on the Net. And the same with any source, anonymous or not, since any
source could also receive a rating.
In this example, an architecture of trust would replace institutions of trust.28 A
reporter could gain credibility as a good and accurate reporter whether employed by
the New York Times or not. Hence, reintermediation on the Net need not involve there-creation of the relatively few trusted publishers in real space but instead could fo-free speech173

cus on the relocation of the credentialing service from the publisher to independentagencies.
The difference between these reregulations is a difference in the power of institutions. Without preferring one over the other, we may note the trade-off between
an architecture and a market structure.

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O FS P E E C H :A C C E S S

Pornography, in real space, is regulated extensively. Porn—not obscenity and not
child porn, but what the Supreme Court calls sexually explicit speech that is “harmful to minors.”29 Obscenity and child porn are regulated too, but their regulation isdifferent from that of porn. Obscenity and child porn are banned for all people inreal space (United States); porn is banned only for kids.
We can understand porn’s regulation by considering the four modalities of regulation. All four are directed to a common end: to keep porn away from kids while(sometimes) ensuring adults’ access to it.
First, laws do this. Laws in many jurisdictions require that porn not be sold tokids.30 Since at least 1968, when the Supreme Court decided Ginsberg v New York,31
such regulation has been consistently upheld. States can require vendors of porn tosell it only to adults; they can also require vendors to check the ID of buyers.
But not only laws channel. Social norms do as well. Norms restrict the sale ofporn generally—society for the most part sneers at consumers of porn, and thissneer undoubtedly inhibits its sale. Norms also sup port the policy of keeping pornaway from kids. Porn dealers don’t like to think of themselves as people who corrupt. Selling porn to kids is universally seen as corrupting, 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,
on average, do not have much money. Because sellers discriminate on the basis of
who can pay, they thus help to discourage children from getting porn.
But the regulations of law, market,and norms all presuppose another regulationthat makes the first three possible: the regulation of real-space architecture. In real
space it is hard to hide that you are a child. A kid can don a mustache and climb
onto stilts, but it would still be pretty hard for him to convince a salesperson thathe’s not a kid. 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 andnorms to be effective.
This constellation of regulations in real space has the effect of controlling, to areasonable degree, the distribution of porn to kids. It is not perfect—any child who
really wants the stuff can get it—but regulation does not need to be perfect to be effective. It is enough that these regulations make porn generally unavailable—as they
do in real space.

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C O D EIn cyberspace the regulation of porn is different. 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 $1,000,000. In
cyberspace distribution is practically free. So long as you have access to cyberspace
and a scanner, you can scan a picture of “the girl next door”and then distribute thedigital image across USENET to many more than one million people for just thecost of an Internet connection.
With this market for supply, much more porn can be produced for cy berspacethan for real space. But there is also the market for demand. Porn in cyberspace canbe retrieved—often and in many places—for free. Not from commercial porn sites,
but from USENET servers, for example. Thus, the constraint of the market is absent
in cyberspace.
More imp ortant than the market, however, is the difference in architectures. A
crucial feature that makes regulation in real space possible is the difficulty of disguising who you are. In cyberspace there is no fact about your identity to disguise.
You enter without an identity, and you identify only what you want to identify.
Thus, a kid in cyberspace need not disclose that he is a kid. And therefore he neednot suffer the discriminations applied to a child in real space. No one needs to knowthat Jon is Jonny; therefore no one needs to know the necessary preconditions for
applying the restrictions of law, norms, and the market.
The result is what we all know: there are few limits on the distribution of porn
to children in cyberspace. And this fact, in turn, gave birth to the “porn scare.”32
Just about the time the Net was coming into the popular consciousness, a particularly seedy part of the Net came into view first. This was the extraordinary
growth of sex available on the Net. This concern became widespread in the UnitedStates early in 1995.33 Its source was an extraordinary rise in the number of ordinary
users of the Net, and therefore a rise in use by kids and an even more extraordinaryrise in the availability of what many call porn on the Net. An extremely controversial (and deeply flawed) study published in the Georgetown University L aw Review
reported that the Net was awash in porn.34 Time ran a cover story about its availability.35 Senators and congressmen were bombarded with demands to do something to regulate “cybersmut.”
Congress responded in 1996 with the Communications Decency Act (CDA). A
law of extraordinary stupidity, it practically impaled itself on the First Amendment.
The law made it a felony to t ransmit “indecent” material on the Net to a minor, orto a place where a minor could observe 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.”36
There were at least three problems with the CDA, any one of which should havedoomed it to well-deserved extinction.37 The first was the scope of the speech it addressed:“indecency”is not a category of speech that Congress has the power to regulate (at least not outside the context of broadcasting.)38 As I have already described,

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Congress can regulate speech that is “harmful to minors,” or Ginsberg speech, butthat is very different from speech called “indecent.” Thus,the first strike against thestatute was that it reached too far.
Strike two was vagueness.39 The form of the allowable defenses was clear: so longas there was an architecture for screening out kids, the speech would 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 unclear whether, to satisfy thestatute,they had to be extremely effective or just reasonably effective given the stateof 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 theSupreme Court in 1997, the government did little either to narrow the scope ofthe speech being regulated or to expand the scope of the defenses. It stuck with thehopelessly vague, overbroad definition Congress had given it,and it displayed a poor
understanding of how the technology might have provided a d efense. As the Court
considered the case, there seemed to be no way that an identification system could
satisfy the statute without creating an extreme burden on Internet speakers.
But let’s step back from the CDA for a moment and clarify just what is possible
in a regulation of this kind. Since the case of Ginsberg v New York, it has been assumed that there is a class of speech that adults have a right to but children do not.
States can regulate that class to ensure that such speech is channeled to the proper
user.
Conceptually, then, before such a regulation could be applied, two questions
must be answered:
1. Is this speech within the class of “regulable” speech?
2. Is this listener under a minimum age?

Clearly, the sender is in a better position to answer question one,and the receiveris in a better position to answer question two. Yet the CDA imposed the full burdenof the regulation on the sender—he must determine both whether his speech is subject to regulation and whether the recipient is above the minimum age.
An alternative would be to place the burden on the receiver—or more precisely,
on his parents. Parents know whether they have children who should be protectedfrom porn; if they do, they arguably should take steps to block out speech they consider inappropriate for their children.
Both solutions—placing the burden on the recipient or on the sender—require
a new architecture for the Net,not at the level of the TCP/IP protocol, but in the application space (see chapter 8). Both require that changes be built into the mostcommon suite of applications in a way that users can depend on.
What might these applications look like? Let’s call the first a zoning solution.
Speakers are zoned into a space from which children are excluded. The second is a

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C O D Efiltering solution. Listeners are empowered to block speech they want to block. We
could describe each as a version of the other—with zoning, people are filtered; withfiltering, the listener zones speech. But let’s keep the kinds distinct and consider
what each would require.
Ar chi t ect ur e s

Tha t

Z o neS pe ec h

Two kinds of zoning solutions are conceptually equivalent, but constitutionally distinct. One, that is, is constitutional; the other, not. Both solutions require a change
in the architecture of the Net to facilitate the production of a certain kind of information. One solution requires a signal that the user is a kid (call this a “kids-ID”).
The other requires a signal that the user is an adult (call this an “adult-ID”).
The difference is crucial, but let’s see first how each might work. With the kidsID solution, we could imagine the government requiring browser manufacturers tomodify their browsers to p ermit users to set up profiles. One option in that profile
would be a check-off box where the user signals that he is a minor. If this check-off
box is selected in a profile on a given machine, the other profiles on the machine
would require a password. Many people could share a single machine, but if any ofthem were minors,the adult profiles would be secured with a password.
Take an example from a hypothetical family. Say a family of three shares a single
computer. One member of that family is a minor. Using this modifi ed browser, theadults would set up a profile for each member of the family. With the child’s profile,
the kids-ID box would be checked,and a password would be used to access that profile. Any member of the family using the system would select his or her o wn profileand browse according to the rules of that profile. (Netscape already provides something close to this. With Navigator Communicator 4.5, for example, you can set up
profiles just as I have described, though they do not have a kids-ID option.)
Armed with such a browser, a kid-identified user would then transmit this fact toa web site when accessing the site. This scheme would require that the web site block
Ginsberg speech to any self-identified minor.40 The burden on the child (or more accurately, the burden on his parents) would be slight, and the burden on the web sitewould also be slight.
That is one kind of zoning solution. A second would require the opposite identification: rather than guaranteeing everyone access except those who identify themselves as children, this version would grant access to adult material only to thoseusers who could certify that they were adults.
We have seen such a system already: an architecture of digital certificates. Users
wanting to enter a regulable site would have their credentials checked automatically.
Those holding the right certificate would be permitted to enter; those without one
would be denied entry. Web sites would then bear the burden of verifying that certificates were authentic, and would also bear the burden of determining which elements, if any, of their speech were regulable. But they would bear this burden only
when the site had Ginsberg speech.

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This second zoning solution is the model of the first CDA and Congress’s more
recent (and constitutionally troubled) Child Online Protection Act (COPA).41 The
burden is placed on both the adult site and the adult who wants adult speech. He
must secure an ID; the site must verify the ID.
These two ID systems both effect zoning, but at different costs. One burdens theparents of children slightly and web sites practically not at all; the other burdens
adults significantly and web sites significantly as w ell.
This difference should be constitutionally significant. It should incline the Court
against upholding a statute like COPA, while disposing it to uphold a statute that requires kid-IDs. If a zoning solution is selected,the Court should uphold the solutionthat imposes the least cost on free speech interests.
But both statutes are different from a filtering solution. Both zone the Net according to features of the users.A filtering solution zones the Net according to features of the speech. Would a zoning solution impose fewer costs on free speechinterests than a filtering solution?
A rchi t ec ture sTha t

F ilter

S pe ec h

The filtering system is a bit more complex, though a rea dy model exists: the architecture of the World Wide Web Consortium’s platform for Internet content selection(PICS).42
We have already seen a relative (actually, a child) of PICS in the chapter abou t
privacy. P3P, like PICS, is a protocol for rating and filtering content on the Net. In
the context of privacy, the content was assertions about privacy practices, and theregime was designed to help individuals negotiate those practices.
With online speech the idea is much the same. PICS divides the problem of filtering into two parts—labeling (rating content) and then filtering the content according
to those labels. Software authors would compete to write software that could filter according to the ratings; content providers and rating organizations would compete torate content. Users would then pick their filtering software and rating system. If you
wanted the ratings of the Christian Right, for example, you could select its rating system; if I wanted the ratings of the Atheist Left, I could select that. By picking ourraters, we would pick the content we wanted the software to filter.
This regime requires a few assumptions. First, software manufacturers would
have to write the code necessary to filter material. (This has already been done—
both Netscape and Microsoft have PICS-compliant filters within their browser software.) Second, rating organizations would actively have to rate the Net. This, ofcourse, would be no simple task; organizations are only slowly taking up the challenge.43 Third, organizations that rated the Net in a way that allowed for a simple
translation from one rating system to another would have a competitive advantage
over other raters. They could, for example, sell a rating system to the government of
Taiwan and then easily develop a slightly different rating system for the “government” of IBM.

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C O D E

If all three assumptions held true,any number of ratings could be applied to theNet. As envisioned by its authors, PICS would be neutral among ratings 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.44
Neutrality sounds like a good thing. It sounds like an idea that policymakers
should embrace. Your speech is not my speech; we are both free to speak and listen
as we want. We should establish regimes that protect that freedom; PICS seems to bejust such a regime.
But PICS contains more “neutrality” than we might like. PICS is not just hori zontally neutral—allowing individuals to choose from a range of rating systems theone he or she wants; PICS is also vertically neutral—allowing the filter to be imposed at any level in the distributional chain. Most people who first endorsed thesystem imagined the PICS filter sitting on a user’s computer, filtering according to
the desires of that individual. But nothing in the design 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—the user, the company through which
the user gains access, the ISP, or even the jurisdiction within which the user lives.
Nothing in the design of PICS requires that such filters announce themselves.Filtering in an architecture like PICS can be invisible, and indeed, in some of its implementations invisibility is part of its design. 45
From a free speech perspective, how should we evaluate these two architectures?
One regime—either the zoning regime of the CDA or the alternative kids-ID
regime—requires those who have zonable speech to place that speech behind walls;
the second regime permits listeners to adopt filters that block offending speech. The
blockings of the first follow requirements in a law; the filterings of the second, while
perhaps induced by law, follow from individual choice. One (zoning) looks like“censorship”; the other looks like “choice” (PICS). Thus, most p eople emb race thesecond while trashing the first.46
But from a free speech perspective, this is exa ctly backward. As a (p erhaps) unintended consequence, the PICS regime not only enables nontransparent filteringbut, by producing a market in filtering technology, engenders filters for much morethan Ginsberg speech. That, of course, was the complaint against the original CDA.
But here the market, whose tastes are the tastes of the community, facilitates the filtering. Built into the filter are the norms of a community, which are broader than
the narrow filter of Ginsberg. The filtering system can expand as broadly as the users
want, or as far upstream as sources want.
The zoning solution is narrower. There would be no incentive for speakers toblock out listeners; the incentive of a speaker is to have more, not fewer, listeners.
The only requirements to filter out listeners would be those that may constitutionally be imposed—Ginsberg speech requirements. Since they would be imposed by
the state, these requirements could be tested against the Constitution, and if thestate were found to have reached too far, it could be checked.

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The difference,then,is in the generalizability of the regimes. The filtering regime
would establish an architecture that could be used to filter any kind of speech, andthe desires for filtering then could be expected to reach beyond a constitutional
minimum; the zoning regime would establish an architecture for blocking thatwould 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 can beused to rate,and filter, any Internet content. And the zoning regime is not limited tofacilitating zoning only for Ginsberg speech. The CDA zoning solution could be used
to certify any number of attributes of the user—not only age but citizenship or
credit-worthiness. The kids-ID zoning solution could be used to advance other childprotective schemes. Both have applications far beyond the specifics of porn on theNet.
In principle at least. We should be asking, however, what the incentives are to extend the solution beyond the problem. In addition, what resistance is this extended
solution likely to encounter?
Here we begin to see an 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 to exclude ischecked at least by the person being 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.47
Filtering is different. If you cannot see the content, you cannot know what is being blocked. In principle at least, content could be filtered by a PICS filter somewhere upstream and you would not necessarily know this was happening. Nothing
in the PICS design requires truth in blocking in the way that the zoning solution
does. Thus, upstream filtering becomes easier, less transparent, and less costly with
PICS.
This effect is even clearer if we take apart the components of the filtering process.
Recall the two elements of filtering solutions—labeling content, and then blocking
based on that labeling. We might well argue that the labeling is the more dangerousof the two elements. If content is labeled, then it is possible to monitor who gets
what without even blocking access. That might well raise greater concerns thanblocking, since blocking at least puts the user on notice.
These possibilities should trouble us only if we have reason to question the valueof 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 is an undeniable value in filtering. We all filter out much more than weprocess, 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180

C O D Eam selecting a filter according to my understanding of the values both newspapers
bring to the process of filtering. 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 wantto avoid issues of poverty or of inequality, and so we might prefer to tune those facts
out of our universe. But from the standpoint of society, it would be terrible if citizens could simply tune out problems that were not theirs. Those same citizens haveto select leaders to manage these very problems.48
In real space we do not have to worry about this problem too much because filtering is usually imperfect. However much I’d like to ignore homelessness, I cannot
go to my bank without confronting homeless people on the street; however much
I’d like to ignore inequality, I cannot drive to the airport without passing throughneighborhoods that remind me of how unequal a nation the United States is. Allsorts of issues I’d rather not think about force themselves on me. They demand myattention in real space, regardless of my filtering choices.
This is not true for everyone. The very rich can cut themselves off from what
they do not want to see. Think of the butler on a nineteenth-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 on balance,most of us do not. We must confront the problems of others andthink about problems that affect our society. This exposure makes us better citizens.49 We can better deliberate and vote on issues that affect others if we have somesense of the problems they face.
What happens,then,if the imperfections of filtering disappear? What happens if
everyone can,in effect,have a butler? Would such a world be consistent with the values of the First Amendment?
Some believe that it would not be. Cass Sunstein, for example, has argued quite
forcefully that the framers embraced what he calls a “Madisonian” conception of theFirst Amendment.50 This Madisonian conception rejects the notion that the mix ofspeech we see should solely be a function of individual choice. It insists, Sunsteinclaims, 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 is not a bad circumstance in the Madisonian 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? What will it mean if the agenda of national fads and concerns 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 bymass conformism. The cohesion and effective functioning of a democratic society depends upon some sort of public agora in which everyone participates andwhere all deal with a common agenda of problems, however much they may argue over the solutions.51

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On the other side are scholars such as Geoffrey Stone, who insists just as strongly
that any such paternalistic ideal is nowhere found in the conception of free speechembraced by our framers.52 The amendment, he says, is merely concerned with banning state control of private choice. Since enabling private choice is no problem under this regime, perfect filtering is likewise no problem.
This is another latent ambiguity, and as with others,I do not think we get far byappealing to Madison. To use Sunstein against Sunstein, the framers’ First Amendment was an incompletely theorized agreement, and it is better simply to confessthat it did not cover the case of perfect filtering.53 The framers couldn’t imagine a
PICS-enabled world; they certainly didn’t agree upon it. If we are to support one
regime over another, we must do so by asserting the values we want to embracerather than claiming they have already been embraced.
So what values should we choose? In my view, we should not opt for perfect filtering. We should not design for the most efficient system of censoring—or at least, weshould not do this in a way that allows invisible upstream filtering. Nor should we opt
for perfect filtering so long as the tendency worldwide is to overfilter speech. If there is
speech the government has an interest in controlling, then let that control be obvious
to the users. Only when regulation is transparent is a political response possible.
Thus, between the two, my vote is for the least transformative regime. 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 the existing architecture of the Net and does not easily generalize to a far
more significant regulation.
I would opt for a zoning regime even if it required a law and the filtering solution required only private choice. If the state is pushing for a change in the mix oflaw and architecture, I do not care that it is pushing with law in one context andwith norms in the other. From my perspective, the question is the result, not themeans—does the regime produced by these changes protect free speech values?
Others are obsessed with this distinction between law and private action. 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 constitutionallaw is on their side.
But as I’ve hinted before, and defend more below, I do not think we should getcaught up in the lines that lawyers draw. Our question should be the values we wantcyberspace to protect. The lawyers will figure out how.
The annoying skeptic who keeps noting my “inconsistencies” will like to pester meagain at this point. In the last chapter, I embraced an architecture for privacy that isin essence the architecture of PICS. P3P, like PICS, would enable machine-tomachine negotiation about content. With P3P the content 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?

182

C O D EThe answer is the same as before: the values of speech are different from the values of privacy; the control we want to vest over speech is less than the control wewant to vest over privacy. For the same reasons that we disable some of the control
over intellectual property, we should disable some of the control over content.A little bit of messiness, or friction, is a value, not a cost.54
But are these values different just because I say they are? No. They are only different if we say they are different. In real space we treat them as different, and myonly argument is that we choose what we want in cyberspace.

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O FS P E E C H :D I S T R I B U T I O N

So far my arguments about architectures have been about architectures in cyberspace. In this final story, I blur the borders a bit.I want to use the architecture of cyberspace to show something important about the regulation of broadcasting.
The Federal Communications Commission regulates speech. If I wanted tobroadcast a political speech on FM radio at a frequency of 98.6 MHz in Boston, theFCC would have me prosecuted.55 To speak on 98.6 in Boston I need a license; I do
not have such a license; to speak without a license is a crime. It is a crime despite thefact that the Constitution says, “Congress shall make no law . . . abridging the freedom of speech, or of the press.” What gives?
The answer rests on a deeply held assumption at the core of our jurisprudence
governing broadcasting technologies: only a fixed amount of spectrum is available
for broadcasting, and the only way to facilitate broadcasting is to allocate slices ofthe spectrum to users, who are then solely entitled to use their allocated spectrum.
Without allocation, there would be chaos, in which event there would be no broadcasting.
This view first came on the constitutional scene after Congress passed the RadioAct of 1927.56 In 1926 Secretary of Commerce Herbert Hoover gave up the practiceof controlling broadcasting after a number of circuit courts held that he did nothave the power to do so. If he did not have the power, he said, then the invisible
hand would have to govern. But Hoover was no friend of the invisible hand. He predicted what would happen if radio were left to the invisible hand (chaos), and somesuggest that he helped bring about what he predicted.Stations would override otherstations, he said; broadcasting would be a mess. When some confusion did arise,
Hoover used this to justify new federal regulation.57
Congress then rode to the rescue by authorizing the FCC to regulate 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; they had to share
their resource with their opponents. In short, Congress said, broadcasting had to be
regulated in the same way the Soviet Union regulated its economy.58 We had nofree speech

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choice. As Justice Felix Frankfurter said in upholding the regime, it was compelledby the “nature” of broadcasting.59
From the beginning, however, there have been skeptics—not about the idea thatspectrum must be regulated but about the means by which it is regulated. Was it
necessary to have a central agency to allocate property? The common law, theseskeptics argued, had done just fine.60 Ronald Coase in 1959 proposed that if thespectrum were auctioned rather than licensed, it would be allocated to the highestvalue users.61 Coase’s idea caught on—fifty years later. In the United States the FCC
has just begun to auction huge chunks of the broadcasting spectrum. Soon much of
the decision about who gets to say what will be made by private interests—but private interests backed by the force of the state.
Think for a second about the architecture implied by this development. If spectrum must be allocated, the argument goes, a governmental body should do the allocation. If this body licenses, then its right to do so must be extensive and powerful as
it reviews the practices of licensees and allocates renewals accordingly. But even if thegovernment simply auctions spectrum, it must still do extensive policing. Channels
must be kept clear; interlopers must be punished. Under either regime—licensing or
auctioning—both strong government and a great deal of private power are required.
They are justified—indeed compelled—by the nature of broadcasting technology.
Many have noticed how different this architecture is from that of the press at thefounding. The “press” in 1791 was not the New York Times or the Wall Street Journal.
It did not comprise large organizations of private interests, with millions of readers
associated with each organization. Rather, the press then was much like the Internet
today. The cost of a printing press was low, the readership was slight, and anyone(within reason) could become a publisher—and in fact an extraordinary number
did.62 When the Constitution speaks of the rights of the “press,” the architecture it
has in mind is the architecture of the Internet.63
The market has erased this architecture in the print press;nature, we are told,has
eliminated it in broadcasting. And so we are left with a world where the dominantarchitectures of free speech are fundamentally different from those the framers embraced.
In chapter 4,I said that architectures could differ both in the values they embrace
and in the regulability of behavior within their space. But here we see a third way inwhich architectures differ. As the example of broadcasting shows, architectures differ in the justifications of regulation that they entail. Given an architecture of spectrum allocation, more regulation is justified, since someone must make choices
about allocation.
So we have an architecture for broadcasting that is fundamentally different fromthe framers’ design. It justifies a massive amount of state regulation over core areasof speech. Yet it is an architecture, we are told, that we are compelled to a ccept because nature gives us no other choice.Spectrum must be allocated if broadcasting is
to occur.

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C O D E

But what if this assumption were no longer true?64 Whatever the state of radio
technology was in 1927, there’s an emerging view that broadcasting today does not
require spectrum allocation. There is a second architecture for broadcasting (which
I will call “Spread Spectrum”—it has a few different names) that would not require
any spectrum allocation at all. 65 If broadcasting were done through this technology,
the extensive governmental regulation would no longer be justified.
How could this be? Your intuition about broadcasting is likely to that when two
transmitters transmit on the same frequency, the signals “interfere” with each otherin the sense that both are distorted. But in fact, the distortion we hear is caused bydumb receivers, not by conflicting signals.A dumb receiver needs a clear channel—
or a clear difference between the channel it is receiving and everything else. If it does
not receive a clear channel, then it does not know which signal to focus on. Thus, itsounds as if it were moving between the two, as if the transmissions were themselves
mixed.
But a smart receiver could distinguish the transmissions. It could tell which it
was to receive and ignore all others, without any coordination of the transmissions.
The only requirement would be an agreement about the protocols for receivers. Receivers would wait until they received the proper packet, and only then would they
open it.
This is the architecture of the Internet. Machines have addresses; they collectfrom the Net packets addressed to that machine.66 No one allocates a particularchannel to your machine; your machine shares the Net with every other machine on
the Net. But the Net has a protocol about sharing this commons. Once this protocol
is agreed on,no further regulation is required.
Broadcasting, many now argue, could be set up the same way. Broadcasts could
be made using a spread spectrum design, and no one would have to allocate a particular bit of spectrum to a particular sender. Although this architecture in effectturns spectrum into a commons, there would be no tragedy of the commons since
the technology of the receivers would regulate their use depending on global demand. Everyone could be a broadcaster.
So here we have an alternative architecture for broadcasting, one that does not
require massive government regulation or state-supported oligopolies like NBC. It isan architecture that would facilitate far wider use of broadcast spectrum, and it
would put those uses in competi ti on with other ways of transmitting packets—
copper and glass. All modes of transmission would compete with each other, andspeakers would have the benefit of the most competitive mode.
Two architectures (spread spectrum and spectrum allocation), two structures ofregulation (small and large), and two structures for industry (small and large broadcasters): Which, we might ask, is more consistent with the First Amendment’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 architecture of theAmerican framing and an architecture equivalent to the Soviet framing. One archi-

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tecture distributes power and facilitates speech; the other concentrates power andraises the price of speech. Between these two choices, the American framers made achoice. The state was not to be in the business of licensing speakers either directly or
indirectly. Yet that is just the business that spectrum allocation allows.
A faithful reading of the framers’ Constitution, my colleague Yochai Benkler andI have argued, 67 would strike down the regime of spectrum allocation. 68 A faithfulreading would reject an architecture that so strongly concentrates power. The model
for sp eech that the framers embraced was the model of the Internet—distributed,
noncentralized,fully free and diverse.Of course, we should choose whether we wanta faithful reading—translation does not provide its own normative support. But if
fidelity is our aim, this is its answer.

S P E E C H

L E S S O N S

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 canbe used as shields (rights).
In principle we might think about how the four modalities protect speech, but I
have focused here on architectures. Which architectures protect 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 relationship between architectures and speech globally and uses constitutional values to think not just about what is permitted, given a particular architecture, but also
about which architectures are permitted. Our real-space constitution should informthe values of our cyberspace constitution. At the least, it should constrain the state inits efforts to architect cyberspace in ways that are inconsistent with those values.

T H I R T E E N
i n t e r l u d e

Let ’s pause f or a moment and l ook back over t h ese t h r ee ch apt er s. Th er e isa 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, and by whom should this control be exercised? There is a battle between codethat protects intellectual property and fair use; there is a battle between code thatmight 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 filteringand architectures that ensure some messiness about who gets what. Each case calls
for a balance between control and no 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 privacy, I argue in favor of codethat enables individual choice—both to encrypt and to express preferences about
what personal data is colle cted by others. Code would enable that choice; law could
inspire that code. In the context of free speech, however, I argue against code thatwould perfectly 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 systemsof reputation is good,and code that would widen the legitimate range of broadcasting is also good.
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 structures that are too
individualized as well.
You may ask whether these choices are consistent. I think they are, but it ’s notimportant that you agree. You may believe that a different balance makes sense—
more control for intellectual property or filtering perhaps, and less for privacy. My
real interest is in conveying the necessity of such balancing and of the values implicit

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in the claim that we will always require a balance. Always there is a competition between the public and private; always the rights of the private must be balanced
against the interests of the public. Always a choice must be made about how far eachside will be allowed to reach. These questions are inherently questions of public law:
How will a particular constellation of constitutional values be reckoned? How will abalance be struck in particular factual contexts?
I have argued this point while neglecting to specify who is responsible for any
given imbalance. There are those who would say that there is too much filtering, or
not enough privacy, or too much control over intellectual property, but these are notpublic concerns unless the government is responsible for these imbalances. Constitutional value in the United States extends only so far as state action extends. And I
have not shown just how state action extends to these contexts.
I do not intend to. In my view, our tradition reveals at least an ambiguity about
how far constitutional values are to extend. In a world where only governments are
regulators, keeping the Constitution’s authority limited to state action makes somesense. But when the modalities of regulation are multiplied, there is no reason tolimit the reach of constitutional values. Our framers made no choice about this;
there is no reason why regulation 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 havehighlighted so far. In the final chapter of part 3, a different balance is struck—one
again made salient by code. However, this time the balance is not between the state
and the individual but between the state and the implicit regulations of the architectures of cyberspace. Now the threat is to a traditional sovereignty. How do wetranslate that tradition to fit a world where code is law?

F O U R T E E N
s o v e r e i g n t yViet nam is a Commu n ist nat ion —one of t h e few r ema in in g , and of co u r se
not anything like the communism that gave birth to the cold war, 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 by Vietnam yet a vic tor
in the cold war, we are a nation that in large part defines itself in opposition to theideology of Marx and Lenin.1 Vietnam sets as its ideal the state in service of thewithering of the state; the United States sets as its ideal the withered state in the service of liberty. Control is the model of communism; freedom is the model of theUnited States.
Or so we are to think.
I confess a certain fascination with Communist states. In the ear ly 1980s I wandered through every European Communist state that would let me in.I spent muchof the summer of 1996 wandering through Vietnam. Alone and e-mail-free, I tried
to understand this place that in my childhood fell victim to my nation’s exported
struggle with the cold war.
I’ve been to many places—traveling is a hobby of mine—but never to a place
more spectacular. One is always overwhelmed by forgiveness,and an American can’t
help being overwhelmed by this nation’s warmth and welcome. Perhaps had we“won” the war forgiveness would not be so forthcoming. But it apparently comes
easily to those who did win.
I was not there to understand forgiveness,however, but to learn something about
how the place ran. I wanted to understand how this state exercises control over its
citizens; how it continues to regulate; how it qualifies as one of the last remaining
Communist states. So I spent time talking to lawyers, businessmen,and managers of
the em er ging Net in Vietnam (“NetNam”). Very quickly, a surprising picture
emerged.

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Though Vietnam is a “Communist” state whose ideology, as understood in theWest, admits very little limitation on the power of the state; though the Vietnamesestate sets as its ideal a common good rather than the good of individuals or individual liberty; though on paper there is no “liberty”in Vietnam in the sense that we in
the West like to imagine it—though all this is true,I could not escape the feeling thatpeople 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 feelthe 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 regulation we have here.Life there is remarkably free fromgovernmental control. It was hard to imagine how it would have been different had
Nixon won the war. Pornography was banned and hippies were harassed, but in themain, people and business got on with very little direct or effective regulation by
government.
This fact (if you’ll allow random observations of an untrained anthropologist 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 infrast ructure of control—there is barely any infrastructure
at 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 (andfrankly I doubt that there is), Vietnam has an effective “freedom.”
This makes perfect sense. The power to regulate is a function of architecture as
much as of ideology; architectures enable regulation as well as constrain 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 sovereign power—the right of the sovereign to regulate or control behavior—but
our idea is meaningful only when we place it within a particular regulatory context,
or within particular architectures of control. The state’s power may be “absolute,”
but if the architecture does not support regulation,the state’s effective power is quite
slight. On the other hand, the state’s power may be limited, but if the architecturesof control are very efficient, this limited power can be extraordinarily extensive. To
understand a state’s power to regulate we must ask: How well does its infrastructure
support a structure of regulation?
This is the question we should ask about the regulation of cyberspace—aboutsovereignty there. We should ask this question first about real-space governments:
What power do they have to regulate life in cyberspace? How does the architectureof cyberspace support the regulation of real-space governments there? And then weshould ask it about the “sovereignty” of cyberspace itself.

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C O D EIn the end,I want to argue that there is a sovereignty in cyberspace; that this sovereignty competes with real-space sovereigns; and that control of that sovereign isessential if we are to achieve democratic control over an extraordinarily important
aspect of real-space life. Real-space life, not just cyberspace life,since in the end,andin the beginning, life there is always also life here.

T H E

S O V E R E I G N

O F

T H E

S P A C E

Cyberspace is a place. People live there. They experience all the sorts of things thatthey experience in real space there. Some experience more. They experience this not
as isolated individuals playing some high-tech computer game. They experience it ingroups, 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 the computer,late at night, while their husbands are asleep. They are at work,at cyber-cafés,and incomputer labs. They live this life there, while here,and then at some point in the day
they jack out and are only here. They rise from the machine,in a bit of a daze, andturn 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 cyberspace orin real space. We have this desire because we want to know which space is responsible. Which space has jurisdiction over them? Which space rules?
The answer is both. Whenever anyone is in cyberspace, she is also here, in real
space. Whenever one is subject to the norms of a cyberspace community, 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 law is to work out how
the norms of the two communities 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 adifferent place where the norms were different. The problem was that he was simultaneously in a Michigan dorm room and on the Net. He was subject to the norm ofcivility in the dorm, and he was subject to the norm of indecency in cyberspace. He
was subject, that is, to two sets of norms as he sat in that single chair.
So whose norms would apply? How would real-space governments deal with theconflict between these two communities?
Some examples might help. Ordinarily, when you go to Europe you do not bring
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 UnitedStates ordinarily has very little reason to worry about regulating your behavior
there—so long, at least, as you are there.

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But sometimes the U.S. government does have a reason to regulate American citizens abroad. When it does, nothing in international law can stop it. 2 For example,
there are jurisdictions where pedophilia is not regulated. For a time they became target tourist spots for pedophiles from around the world. The U.S. government, in
1994,passed a law to forbid Americans from engaging in child sex while outside theUnited States, even in jurisdictions where child sex is permitted.3
What justification could the re have been for such a law? Obviously, the sense ofCongress 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 norms back to their life here. Thus,
while the American government generally doesn’t much care what you do elsewhere,
it does begin to care when what you do elsewhere has an effect on your life here.
When it does, it will regulate your life elsewhere.
Regulations like this are the exception, of course, but only because the threat ofthese alternative communities is relatively slight. The frictions of real-space life
make it less likely that the norms of an alien culture will bleed into our own; the distance between us and alien cultures is so great that very few can afford to have a life
in both places.
But the Net changes this. As the Baker case suggests,and as any number of othercases will press, with cyberspace these other communities are no longer elsewhere.
They can be brought home, and real-space communities no longer have the bufferof friction to protect them. Another community can now capture the attention of
their citizens without their citizens’ ever leaving. People may be in both places at thesame time. The question for government is how far to allow this alien force to go.
In an important sense,this is a very old story. Cultures at one time isolated are later
invaded when the barriers to invasion fall. Think about the plea from Europeans tostop the invasion of American culture, which pours over satellite television into theliving rooms of European citizens.4 Or even more extreme, the Middle East. Theseare places that have for some time been thinking about the barriers they might erect
to protect their culture from the invasions of an alien culture.
Still, there is a difference here. The invasions these cultures resist are relatively
passive. Dallas and Baywatch5 are not sets of rules that people in Hungary or Singapore must follow. They display a certain (im)moral universe, which Hungarians andSingaporeans are able to see. But they don’t draw people into a different form of life.
The alternatives offered by TV are alternatives of the imagination. But the interactive life of cyberspace offers more than watching: it offers alternative ways of living(or at least some cyberspaces do).
Thus, the story is old, but as with each latent ambiguity, the twist is new. The
question now is not just about what powers a state should have given that its citizens
can travel; the question is about what power a state should have given that its citizens can live in two places at once.

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C O D EHow can governments accept these alternative ways of living while the people
living them are also living within the jurisdiction of these governments?
We should begin by putting the problem in context.
“Sovereignty” is the sovereign’s power to set rules that govern the behavior of
people rightfully within its reach. The power to set rules—for of course I could affect people’s behavior simply by stalling a bus in a busy intersection. And the powerrightfully to set rules—for an invading army might set rules, but that wouldn’t necessarily make the invader a sovereign.
Beyond this minimum, the concept has undergone significant change. At one
time “logic” said that you could be subject to only one sovereign at a time.6 Anythingelse, it was thought, violated the very idea of “sovereignty.” But the United Stateschanged that. In the United States, citizens are subject to two sovereigns at the sametime—the nation and the state.Dual sovereignty is our contribution to the theory ofsovereignty. However radical it was at the founding, it is now quite commonplace insovereignty talk.
But dual sovereignty creates its own problems. How do dual sovereigns deal withthe problem of conflicting authority? In matters of justice as well as of constitutional politics, dual sovereigns must have a simple way to resolve conflicts in authority.
In the United States these conflicts are resolved by the principle of supremacy:
when proper laws of the federal government conflict with proper laws of the states,
the federal laws prevail.7 By design, these conflicts were to be infrequent, but if inpractice they emerged, the U.S. Constitution provided a simple resolution.
But as conflicts among laws from outside a single sovereign (or outside a structure of dual soverei gn ty) grow in number and significance, another problem
emerges. People have never really been subject to the laws of only one sovereign. Behavior across borders, or behavior that had effects across borders, has always risked
running afoul of competing rules. As the integration of international life has increased, so have these conflicts. Behavior has effects in many places; how many
places legitimately have a claim to regulate in these spaces? How, in other words,
could it be just that a single act is subject to the control of many sovereigns?8
Cyberspace has exploded this third stage of the debate. What was once the exception will become the rule. Behavior was once governed ordinarily within one jurisdiction, or within two coordinating jurisdictions. Now it will systematically be
governed within multiple, noncoordinating jurisdictions. How can law handle this?
This question has produced a ferocious argument between two extremes. At one
end is the work of David Post and David Johnson. Johnson and Post argue that themultiplicity of jurisdictions in which your behavior is subject to regulation (since
anything you do in cyberspace has an effect in every other context) should meanthat much behavior is presumptively not subject to regulation anywhere. Anywhere,that is, save cyberspace.9 The inconsistency of any other solution, they argue, would

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be absurd. Rather than embracing the absurd, we should embrace something far
more sensible: life in cyberspace, as Milan Kundera might put it, is life elsewhere.
At the other extreme is the work of scholars such as Jack Goldsmith, who claims
there is nothing new here.10 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 newform, but the pattern of the old will suffice.
While both sides embrace partial truths,in my view both are mistaken. It is true,
as Johnson and Post argue, that there is something new here. But what is new is nota difference in kind, only a difference in degree. And it is true, as Goldsmith argues,that we have always had disputes of this form. But we have not had conflicts at thislevel of actor. We have not had a time when we could say that people are actually living in two places at once, with no principle of supremacy between them. This is thechallenge that we will face in the future.
This duality is a problem because the legal tools we have used to resolve thesequestions before were not designed to deal with conflicts among citizens. They were
designed to deal with conflicts among institutions, or relatively sophisticated actors.
They are rules made for businesses interacting with businesses, or businesses interacting with governments. They were not designed for disputes between citizens.
Jessica Litman makes an analogous point in her work on copyright.11 For muchof the last century, Litman argues, copyright has worked fairly well as a compromise
between publishers and authors. It is a law that has largely been applied to institutions. Individuals were essen ti a lly 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.12 More precisely, the ideal rules for individuals would not necessarily be the ideal rules for institutions. The rules of copyrightneed 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 withthese conflicts work well when the parties are repeat players—corporations thatmust do business in two places, for example, or individuals who constantly travel
between two places. These people can take steps to conform their behavior to thelimited range of contexts in which they live, and the existing rules help them tothat end. But it does not follow (as it does not follow in the context of copyright)that the same mix of rules would work best in a world where anyone could be amultinational.
The solution to this change will not come from insisting either that everything is
the same or that everything is different. It will take more work than that. When alarge number of citizens live in two different places,and when one of those places is
not solely within the jurisdiction of a particular sovereign,then what kinds of claims

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C O D Eshould one sovereign be able to make on others, and what kinds of claims can thesesovereigns 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 constitutional moment that could have answered the question. Even if there had been, it would nothave answered this question. At the founding ordinary people were not routinely living in multiple noncoordinating jurisdictions. This is something new.
There are already some examples of how the law deals with conflicts between thenorms of the virtual community and the rules of the real-space community. Whatlesson can we learn from these?
“Hackers” are an obvious first example.Originally, hackers were relatively harmless cyber-snoops whose behavior was governed by the norms of the hacker community.13 A hacker was not to steal; he was not to do damage;he was to explore,and
if he found a hole in a system’s security, he was to leave a card indicating the problem.14 He was a bit more invasive than a security guard, who checks office doors tomake sure they are locked. The hacker of this earlier era not only checked the locks
but let himself in, took a quick peek around, and left a cute (or sarcastic) note saying, in effect,“Hey, stupid, you left your door open.”
All this may seem quite bizarre to you. But you have to put yourself into the cultureof the early Net to understand (and hence to have the right to judge) this behavior. At
this early stage the Net was a world of open software and open systems. The basic operating system was some flavor of UNIX, an open (as in transparent) system that had
many different versions brewing on different parts of the Net.15 As in any evolutionarymodel, these versions were genetically related but slightly different. Hackers took on
the role of snooping about to sniff out problems with the evolving genetic code.
This was also a world where terribly valuable stuff was not really “on the Net.”
Separate networks for defense and finance were not part of the Internet proper.16
While some famous efforts were made to hack those places, most hacking was benign.17 People within the hacking community understood the benefit of their naggingly smart invasions.
That was the world that was. It didn’t take much to see that this world would notsurvive for long. This community of people who thought it fair to test the locks, enter someone else’s machine if they could, and snoop their file structure—this community was not going to mesh with a Net where commerce could survive. It may
have been fine to play these games in a world of geeks, but when money came online a better system of security was inevitable.
As these cultures came into con f l i ct , real-space law quickly took sides. Law
worked ruthlessly to kill a certain kind of online community. The law made thehackers’ behavior a “crime,” and the government took aggressive steps to combat it.
A few prominent and well-publicized cases were used to redefine the hackers’“harmless behavior” into what the law would call “criminal.” The law thus erased
any ambiguity about the “good”in hacking.

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A good example of this is the story of Robert Tappin Morris, a graduate student
at Cornell.18 Morris was studying Internet mail—the protocols that govern thetransfer of mail between two computers on the Net—when he discovered,and thenexploited, flaws in two programs that were and still are widely used to transfer mailand information about users: Sendmail and Fingerdaemon. Morris was convincedthat both left open certain doors on the system, thereby allowing people to use theprotocols for improper purposes. The protocols governed, for example, when acomputer would open its d oor to allow mail to be deposited onto its disk, but they
had no good way to distinguish between knocks on the door by postmen and knocks
by burglars.
In real space, if you discover that the door of the local bank is unlocked, you
might simply call the bank (if you’re a decent sort), or maybe the police, and letthem know. If you discover a certain flaw in software made by Novell, you might
send a letter to Novell. But when you discover a flaw in Sendmail, it’s not so clear
what to do. Sendmail, the dominant program for distributing mail on the Net, isfree.19 Sites have an incentive to keep the program up to date, but because doing so
can be difficult and time-consuming, most do not update the program until they
have had a scare. And a scare comes best from a demonstration. A self-respecting
hacker demonstra te s a probl em , but in a very particular way. He shows what iswrong, but without doing any harm.
That was Morris’s aim. He used a worm—which, you remember, is a bit of code
spit onto the Net and designed to copy itself over and over, without affecting the operation of anyone’s machine. Its purpose is simply self-replication. It does not aim todo any particular damage. It simply attaches itself to e-mail messages and thus
copies itself everywhere,so that at a certain point its author can declare: “See, I told
you. There’s a hole in Sendmail and in Fingerdaemon.”But things didn’t quite go as planned. The worm was not as harmless as Morris
thought. He had made it multiply much too fast, and very soon it was clogging thewhole Net. It had c opied itself so many times that it froze the ma chines exposed toits spread. Machines by the hundreds were taken down, and thousands of dollars ofdamage incurred. Morris tried quickly to stop the mess he had started, but he didn’t
start quickly enough. The worm won; Morris lost.
It was not hard to find the culprit; too many people knew of Morris’s plan. He
was charged with violation of the Computer Fraud and Abuse Act of 1986, a federal
law that made it illegal to access intentionally “federal interest computers” withoutauthorization if that access damages or prevents authorized use of those computers
causing a loss of more than $1,000.20 Morris was convicted and sentenced to three
years’ probation, four hundred hours of community service, and a fine of $10,050
plus the costs of his supervision.21
The government had an objective—to vilify the hacker. Its aim was to turn the
hacker into a criminal. And thus, rather than reading any lenity into the statute, thegovernment insisted that it be applied strictly—not only against Morris but against
a scad of other high-profile hackers as well. This was a war whose aim was to remake

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C O D Ethe hacker community into outlaws. Phiber Optik,22 David LaMaccia,23Steve Jackson Games,24 and others were the victims of this war. Real-space communities could
not tolerate these sorts in their midst. So the hackers were banished. 25
Should this be our standard response? Does life in cyberspace have no legitimacy
against the view of real-space sovereigns? Does it have no claim? If it should, how
could it make its claim? What would be its power?
The fate of the hackers is an example of real-space law taking over when cyberspaceand real-space communities conflict. The example se ems to say that real space will
necessarily win this conflict—that cyberspace cannot bend the rules of real space. I
don’t believe that is true. Cyberspace will have an effect. For all the prominence of
these efforts at reclaiming real-space sovereign authority, they are dwarfed by the examples of real-space sovereigns losing regulatory power and effect. Real-space sovereigns are in competi ti on with cyberspace and, long before they realize it,cyberspace will have won.
To see how, we must look to how emerging architectures in cyberspace change
effective regulation. The simplest example, but not the most significant, is one wehave seen in the context of free speech. A nation in 1980 might have had fairly effective control over what was published within its borders. The government, for example, might be fairly confident that no newspapers would be too critical, since it
could effectively punish its critics. State television would be under government control. The state could not really control what people said on telephones, but telephones were too crude, and the audience too small, to matter. The mix ofarchitecture and law in this hypothesized state kept speech effectively regulated.
The Internet changed this mix. Now there can be speech critical of the government without governmental sanction. Publishing can go on without government intervention. The effective regulation of speech has changed. The values of theInternet—the free speech built into its architecture—now trump the values of control that our hypothetical nation embraced.
But this is just the most obvious example. Consider some others.
Imagine a nation with a well-developed balance of rights built into its law ofcontract. These rights protect consumers in some cases; they set the terms for business relations in others. Some of these rights are default,in the sense that the parties
could agree to change them. But some are mandatory for a certain class of contractor or for a certain kind of contract.26 (Many U.S. cities, for example, require a standard landlord-tenant agreement for apartment rentals.)
These rules of contract law would be effective in real space to define the rights of
one individual making a claim against another. The enforcement of any contract inthis space would be subject to these rules.
Enter cyberspace, where the architecture of interaction, or the architecture of aparticular cyberspace, determines a host of rules about contracts. These rules—
about how an offer is accepted, when it is effective, how it can be canceled, whatterms must be bargained for, whether terms are enforceable, whether there must besovereignty

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a written agreement, and so on—may or may not be consistent with the contract
rules of a particular jurisdiction. But a citizen from a particular jurisdiction can now
enter into an agreement subject to these terms. These terms governing the agreement are the effective rules of contract for that particular agreement,and if they areinconsistent with the rules of the local jurisdiction from which the person comes,
then so much the worse for the local rules. The terms of the contract are thoseagreed to in the text of the agreement, or implicit in the architecture that regulates
dealings about the agreement.
One might say this is nothing new. One might say, following Goldsmith, thatpeople have always been able to enter into international agreements.27 These agreements have always implied a choice of law, and the law chosen may or may not be
consistent with local law. If it is inconsistent,then there are restrictions on a local jurisdiction’s ability to enforce it against a local citizen. So the same structure would
constrain in this context.
But this analytical similarity should not obscure a substantive difference. Again,international agreements for the most part are agreements between sophisticatedactors. Before cyberspace, ordinary consumers were not international actors. We canassume that sophisticated actors are able to defend themselves against rules inconsistent with their interest, or with the requirements of their local jurisdictions. Consumers, individuals, and ordinary cyber-contractors are not in the same position.
When people lack the competence or advice to negotiate effectively, the effect is to
shift control over such agreements from local courts and administrators to whateverrule is built into the code. Thus, local governments lose control over the rules andthe effective rule-maker shifts to cyberspace.
A third example pushes the public law dimension of this conflict more strongly.
Think again about copyright law. The law of copyright establishes a set of rights that
individuals have against the copyright owner. We have seen these described in chapter 10, but for convenience, we can lump them under the label “fair use.” There issome controversy in the Unit ed States about the extent to which fair use rights canlegitimately be modified by contract. In an important opinion, Judge Easterbrook of
the 7th Circuit Court of Appeals said,in effect,that these rights can plainly be modified through contract.28 Thus, if you buy a piece of copyrighted work and promise
to waive your rights of fair use,that promise, on this theory, can be held against you.
Easterbrook’s conclusion might well make sense in real space, where there arereal costs to contracting. In real space these costs prevent most copyrighted material
from being wrapped in these anti–fair use agreements. The cost of real-space contracting creates a balance, tilting the result toward the protection of fair use.
But in cyberspace—especially when we consider the international dimensions tocyberspace—this balance is again skewed. If it becomes one of the rules of the space
to click away fair use rights, then the balance of property and fair use so important
to copyright’s very design becomes skewed. Again, the architecture, and the rules it
makes possible, conflict with real-space regimes. Once again, real-space sovereigns
must decide how far they will allow this conflict to reach.

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Contract and copyright are not the only laws that will compete with the code of cyberspace. Think about the rules of access through the mail, and its equivalent in cyberspace,e-mail. In real space, even in gated communities, the mail gets through. You
can send advertisements or political commentary to people within these communities.
Rules about trespass and private property might block you from entering the community and leafleting door to door.29 But in real space you can use the mail.30
In cy berspace gated communities are different. The code of AOL, for example,
gives subscribers tools that filter advertisements or block messages from certain
people or servers. The rules about access in that space are different from the rules
about access in this space.
So what? Again, the skeptic insists, the rules of contract law in Denmark are not
the same as in Dallas. Why should the fact that two places have different rules mat ter any more, or less?
The key again is simultaneity, and here again, the metaphor of space is confusing. Ordinarily, you are in one space at a time, and when there are two sets of rules,
this real-space rule offers an acceptable resolution. The rules for gambling are different in Nevada and in New Mexico; citizens from New Mexico must travel to
Nevada to spend an evening subject to Nevada’s rules. From the perspective of New
Mexico, that might not be ideal, but it is not terrible.On balance,the opportunity toescape is not without cost,so there will not be so many of these escapes as to offend
New Mexico’s regulatory objectives.
But recall Jake Baker. The problem with Baker was that while he was in one place,
he was living under the rules o f a second. While in Ann Arbor, he was living within
the norms of a radical community in cyberspace.Or forget Jake Baker (what a relief
that would be); think about the wife having an affair with someone “in cyberspace.”
Can she really say to her husband,“That is there,this is here”? Couldn’t he rightfullysay—“Look, even if you are there, you are also here.” Should we really view the effectof life in cyberspace as irrelevant to life here?31
To the extent that architectures in cyberspace are rules that affect behavior, the space
is sovereign.32 In the sense that any set of normative commitments is sovereign, cyberspace is sovereign. But this sovereignty produces perpetual competition. The
rules that govern cyberspace may be different from those that govern real space. As
the rules that govern real space compete, cyberspace increasingly wins out. It is thenorms, the freedom, the rules, and the law of the place that in an increasingly large
range of cases govern the norms, the freedom, the rules, and the law of people also
living here.
There is little question about how real-space sovereigns will respond to this.
They will come to see that the power of another sovereign is wired into their telephones,and they will struggle (as the United States has done with the hackers) as therules and norms of this other sovereign affect the behavior of their citizens in theirspace. They have the tools at their disposal to resist the architecture of the Net toprotect their regulatory power.

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But now I want to make a stronger claim: not only can the government take thesesteps to reasse rt its power to regulate, but that it should. Government should push
the architecture of the Net to facilitate its regulation, or else it will suffer what can
only be described as a loss of sovereignty.
This is not some blind paeon to government. In fact, I am not concerned about“government” at all. My concern is accountability—these architectures and the values they embed should be architectures and values that we have chosen. They arepolitical in the most ordinary way: they are structures that order real life, and theyought therefore to be structures that we have in some sense chosen.
In some sense—but which sense? From the bottom up or the top down?33 Fromelected officials dictating the terms of code? Or from wired individuals choosing
their own sets of code? Here ultimately is the hardest problem that cyberspace will
present. But to see its complexity, we must put it in context.
Our history of self-government has a particular form, with two importantly contingent features. Before our founding, life was geographically based—a nation was asociety located in a physical space, with a single sovereign allegiance. As I’ve mentioned, the conceptual revolution of the American republic was that citizens could
have two sovereigns—more precisely, that they (as the ultimate sovereign) could
vest their sovereign power in two different delegates. Their state government was
one delegate, the federal government was another; individuals living in a single geographic location could be citizens of both governments. That was the idea of thefounding document, and the Fourteenth Amendment made it explicit: “All persons
born or naturalized in the United States,and subject to the jurisdiction thereof, arecitizens of the United States and of the State wherein they reside.”
Citizenship in this sense did not always mean a right to contribute to the selfgovernment of whatever community you were a citizen of.34 Even today children are
citizens but they have no right to vote. For those recognized as members of civil andpolitical society, citizenship is an entitlement: it is a right to participate in the governing of the political community of which they are members. As a citizen of theUnited States,I have the right to vote in U.S. elections; as a citizen of Massachusetts,
I have the right to vote in Commonwealth of Massachusetts ele ctions. And I haveboth rights at the same time.
At this level,the link between entitlement and geography makes sense. But as wework down the hierarchy of “communities,” it makes less sense. As we move down
the chain, where I live seems less and less determinative of membership. I am amember of the Boston community, yet because I live in Cambridge,I have no rightto participate in the governance of Boston. If I moved away from Cambridge yet
continued to work here, I would have given up my right to participate in the governance of Cambridge, even though I would continue to have an extremely strong interest in Cambridge and its development.
Political theorists have noted this problem for some time.35 Scholars such as
Richard Ford have contributed significantly to the view that we need a way to un-

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derstand community and the right to participate in its governance that is not directly tied to geography.
These troubles with geography at the local level are nothing, however, comparedwith the problem in cyberspace. No one really lives in cyberspace; people who are“in” cyberspace are always also “in” real space. That they are in cyberspace should
entitle them to some say over its architectures, and that they are in real space should
give their real-space communities a right to some control over the architectures incyberspace, at least to the extent that cyberspace architectures have an effect on the
citizens in real space.
But why? Why do real-space citizens need to have any control over cyber-placesor their architectures? You might spend most of your life in a mall, but no one would
say you have a right to control the mall’s architecture.Or you might like to visit Disney World every w eekend, but it would be odd to claim that you therefore have aright to regulate Disney World. Why isn’t cyberspace like a mall or a theme park?
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-cheesepickles-onions-on-a-sesame-seed-bun,then you can go to Burger King; McDonald’s
has no duty to let you vote on its hamburgers. If you don’t like the local mall, you
can go to another. The power you have over these institutions is your ability to exit.
They compete for your attention, your custom, and your loyalty; if they competewell, you will give them your custom; if they don’t, you will go somewhere else.
What makes this system work, then, is the competi ti on among these potential
sources for your custom.
This part of our life is crucial; it is where we spend most of our time. Most people
are more satisfied with this part of their lives than they are with the part within which
they get to vote. In a sense, all these places are governments; they all impose rules on
us. But our recourse under the rules of the market is to take our business elsewhere.
Still, an important part of our life is not like this. There are no states that say totheir citizens—you have no right to vote here; if you don’t like it, leave. At least no
democratic state does this.Our role in relation to our governments is that of a stakeholder with a voice. We have a right—if the government is to be called democratic—
to participate in its structuring.
And not just governments. It would be an odd university that gave its faculty noright to vote on issues central to the university (though it is an odd corporation thatgives its employees a right to vote on issues related to employment). It would be an
odd social club that did not give members some control over its functions—thoughagain, there are such clubs, just as there are nondemocratic governments. The point
is not that we have this relationship with most of the organizations in our lives, oreven with the most important ones. The point is that much of our lives are spent inthese two alternative modes—either as consumers, or as members.
Some theorists have tried to collapse these two modes into one. Some have tried
to carry the member model into every sphere of social life—the workplace,the mall,the local pub.36 Others have tried to carry the consumer model into every sphere of

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social life—followers of Charles Tiebout, for example,have tried to explain competition among governments along the lines of the choices we make among toothpastes.37 But even if we cannot articulate perfectly the justifications for treating thesechoices 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 government we didn’t like was to move to a different land.
Some have nonetheless urged that we think of cyberspace in the consumer
mode. If we don’t like a particular cyber community, we can move—far more easily,in fact, than we can in real space. Because exit is so cheap, we should use exit as ourballot. Some communities in cyberspace can choose to make members, others not;architectures in cyberspace can be constructed with little worry about sanction fromreal space. The world of cyberspace would become a vir tual menu, and if you don’t
like one selection, you simply pick something else.
The best work in this line are the writings of David Post and his sometime coauthor David Johnson. 38 Post’s article “Anarchy, State, and the Internet” best sets thestage here. Communities in cyberspace, Post argues, are governed by “rule-sets.” We
can understand these rule-sets to be the requirements, whether embedded in the architecture or promulgated in a set of rules, that constrain behavior in a particularplace. The world of cyberspace, he argues, will be composed of these rule-sets. Individuals will choose to enter one rule-set or another. As rule-sets compete for our attention, the world of cyberspace will come to be defined by this competition ofsovereigns for customers.
Post’s argument rests on an important insight about the nature of governmental
power. He views government’s power in the same sense in which we now understanda firm’s market power in antitrust law. By “market power” antitrust lawyers andeconomists mean a firm’s ability to raise prices profitably. In a perfectly competitivemarket, a firm with no market power is the one that cannot raise its prices because
it would lose so much in sales as to make the increase not worth it. 39 The firm that
does have market power can raise prices and see its profits increase. The firm withmarket power also has the ability to force consumers to accept a price for a good thatis higher than the price in a competitive market.
We might imagine an analogous constraint operating on government. Governments, like firms, can get away with only so much. As they become more repressive, or as they regulate more harshly, other governments, 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,40 or easier to evade the law than to comply withit.
Because in real space such moves are costly, governments—or rule-sets—at leastin the short run can get away with a lot. In cyberspace,the claim is,moving is not sohard. If you do not like the rule-set of your ISP, you can change ISPs. If you do not
like the amount of advertising on one Internet portal, then in two seconds you canchange your default portal. Life in cyberspace is about joining without ever leaving
your home. If the group you join does not t reat you as you want to be treated, you202

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can leave. Because competitive pressure is greater in cyberspace, governments andother propagators of rule-sets must behave like firms in a competitive market.
This is an important conception of governance in cyberspace. It argues for aworld of volunteers, one where rules are not imposed but selected. It is a world thatminimizes the power of any particular government, by making governments competitors for citizens. It is government like McDonald’s or Coca-Cola—eager toplease, fearful of revolt.
Nonetheless, I have disagreements. I want to question the model—by questioning first its positive and then,its normative claims.
First, consider the claim that exit costs are lower in cyberspace than in real space;in d oing so, we should distinguish between commodities and communities. Whenyou switch to a different ISP or Internet portal, you no doubt confront a different setof “rules.” And these rules no doubt compete for your attention. This is just like going from one restaurant or shopping mall to another. There are competing rule-sets;
they are among several fa ctors you consider in choosing an ISP; and to the extent
that there is easy movement among these rule-sets,this movement is undoubtedly acompetition among them.
Communities are different. Consider the “competition” among, say, MUDs. You
join a MUD and spend months building a character in that community. At the endof this time, you have probably become well known in that community—you havewell-developed social capital. That social capital—the set of experiences and understandings that individuals in that space have of you—is built through time and repeated interactions.
You have social capital in real space too. You have the set of relationships that define your friendships, your reputation,and your status. But you also have other capital—a house perhaps, a car, a savings account. When you move in real space, youcan, for the most part, transfer your assets. You can sell your house and then buy another in the place you are moving to; you can move your money from one bank toanother; if you move into a community as, for example,a doctor, you have a certain
status based on that.
In cyberspace no assets are transferable. You can move from one community to another, but with each move you must start over again.41 You do not enter a MUD withmoney or social status. You enter as a character whom you must then construct.
Paradoxically, then, we might say that it is harder to change communities in cyberspace than it is in real space. It is harder because you must give up everything ina move from one cyber-community to another, whereas in real space you can bringmuch of it with you. 42 Communities in cyberspace, then, may in the short run havemore power over their citizens than real-space communities do.
This suggests a picture of competing rule-sets in cyberspace that is more complex than Post believes. It is not clear that markets will function more competitively
there (since it is easier to build in these loyalty programs).43 Nor is it clear that communities will function more competitively there (since it is harder to transfer social
capital).44

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There is a second, more fundamental criticism. Even if we could construct cyberspace on the model of the market—so that we relate to spaces in cyberspace theway we relate to toothpaste in real space—we should not want to do it. An important and long-standing tradition argues that beyond their role as consumers humans need to increase the contexts where they are members. Both as a matter ofjustice and as a matter of human flourishing, we need these parts of our lives where
we have control over the architectures under which we live.
In at least some ways ,t h en , we should relate to cyberspace as members rather thanas customers. In an odd but wholly familiar sense, we need to take responsibility forwhat cyberspace is; we must become citizens of cyberspace just as we are simultaneously citizens of, say, the United States and Massachusetts. Being all three at once will
force us to work out how these various political communities should interact.
At times these different roles will conflict, but this is a conflict we in the UnitedStates know well.A conscientious white southerner in the 1960s, for example, musthave felt the conflict between being an American citizen and a citizen of a southernstate. The vision of equality in these two different communities differed,and a white
citizen had to select the one to which he would be loyal.
But how then do we act in these multiple roles as citizen? How do we respect themultiple roles while permitting the different jurisdictions to flourish?
One way of thinking about this problem is what in legal jargon is called subsidiarity.45 Subsidiarity suggests that local issues should be dealt with locally, andthat multiple jurisdictions should respect other jurisdictions dealing with whateverissues are properly their own. A community has the right to regulate its members,
but only insofar as its regulation affects their membership in that community. Regulation should not extend beyond that narrow range.
But subsidiarity is not a determinative concept; there is no independent way of
deciding what is “local.”46 A community and a state could both have the objective ofproviding “equal and excellent” education for their citizens, but nothing in the concept of subsidiarity tells us at which le vel this objective should be pursued.
The same will be the case in cyberspace. What Arab states consider “local”is notwhat Americans will see as local; what poor nations see as universal access will be
more comprehensive than what many rich ones see as universal access. Subsidiarity
alone will not determine the proper scope of political action. Political decisions haveto do that.
Therefore, we need to be able to make political decisions at the level of the Net.
A political judgment needs to be made about the kind of freedom that will be built
into the Net. Our problem is imagining how that decision could be made.
In a sense, as I argued in chapter 3, the decision was made when the Net was
built. The Net imposed on the world an architecture of freedom that was more robust and important than any political structure the United States had ever exported.
Some would call this a kind of imperialism—the imposition of our values onother nations—and insist that we create an architecture that does not impose theFirst Amendment on the world. Who are we to insist on free speech as a worldwide

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Isn’t this just the sort of decision that local governments ought to make? Why are wemaking it for them?
There was a time when the United States was really “these united States,” a time
when the dominant political reality was local and there were real differences 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 government was to be minimal and limited; it had a number of narrow, strictly articulated
purposes. Beyond them, the national government was not to go.
These limits made sense in the limited community that the United States was. At
the time there was very little that the states shared as a nation. They shared a historyof defeating the strongest army in the world,47 and a pur pose of growing across analmost endless continent. But they did not share a social or political life.Life was local, exchange was rare,and in such a world limited national government made sense.
Nevertheless, there were national questions to be articulated and resolved. Slavery, for example, was a mark on our country as a whole, even though the practice
was limited to a few states. There had been arguments at the founding about
whether slavery should be left to local regulation.
But the Constitution was founded on a compromise about that question. Congress was not permitted to address the question of the “importation” of slaves until
1808.48 After that, it could,and people, 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 some argued that it should do so in thesouthern states as well.
Opponents to this call for Congress to cleanse our nation of slavery were of two
sorts. One type supported the institution of slavery and believed it was central tosouthern life. They are not my focus here. My focus is a second type—those who,with perfect integrity and candor, argued that slavery was a local issue, not a national issue; that the framers had understood it not to be a national issue; and thatthe national government should let it alone.
However true that claim might have been in 1791 or 1828,it became less plausible over time. As the nation became socially and economically more integrated, theplausibility of saying, “I am a Virginian first,” declined,and the significance of being
a citizen of the nation as a whole increased.49
This change came about not through some political decision but as a result of achanging economic and social reality. Our sense of being members of a national
community increased until, at a certain stage, it became impossible to deny our national citizenship. The Fourteenth Amendment 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.
The very same process is hap pening to us now, internationally, and it is making
an important cyberspace contribution. It has been slowly gaining momentum, ofsovereignty

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course, since the end of World War II, but the Internet has wildly accelerated thepace. Ordinary citizens are connected internationally and can make internationaltransactions 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
increasingly difficult to stand neutral in this international space. Just as a principled
sort of citizen in 1791 might have said that slavery in Virginia was irrelevant to a citizen in Maine, so in 1991 the control of speech in Singapore may have been irrelevant to a citizen of the United States. But just as the claim about slavery’s local
relevance became implausible in the course of the nineteenth century, the claim
about speech on the Net will become equally implausible in the next century. Cyberspace is an international community; there are constitutional questions for it toanswer; and increasingly, we cannot simply stand back from this international spaceand say that these questions are local issues.
At least, we could not say that once we effectively invaded this international
space with the Internet of 1995. We put into the world an architecture that facilitated extraordinarily free speech and extraordinary privacy; that enabled securecommunications through a protocol that permitted encryption; and that encouraged free communications through a protocol that resisted 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 way we
did not before; we are contemplating the regulation of encryption; we are facilitating identity and content control. We are remaking the values of the Net, and thequestion is: Can we commit ourselves to neutrality in this reconstruction of the architecture of the Net?50
I don’t think that we can. Or should. Or will. We can no more stand neutral on
the question of whether the Net should enable centralized control of speech than
Americans could stand neutral on the question of slavery in 1861. We should understand that we are part of a worldwide political battle; that we have views about
what rights should be guaranteed to all humans, regardless of their nationality; andthat we should be ready to press these views in this new political space opened up by
the Net.
I am not arguing for world government. Indeed,the impossibility of such an idea
is the focus of much of the next chapter. My argument instead is that we must takeresponsibility for the politics we are building into this architecture because this architecture is a kind of sovereign governing the community that lives in that space.
We must consider the politics of the architectures of the life there.
I have argued that we should understand the code in cyberspace to be its own sortof regulatory regime, and that this code can sometimes be in competition with the
law’s regulatory regime. In copyright, for example, we saw how copyright law could
be inconsistent with the regulatory regime of trusted systems. My argument is that
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C O D Eother. We need a way to choose between them. We need a way to decide whichshould prevail.
As this system of regulation by code develops, it will contain its own norms,
which it will express in its st ructures or in the rules it imposes. If the predictions oflaw and economics are correct,these norms will no doubt be efficient, and they may
well be just. But to the extent that justice does not track efficiency, they will be efficient and unjust. The question will then be: How do we react to this gap?
There is an important pattern in this competition between code and law. Law, atleast as it regulates international relations, is the product of extended negotiations.
Countries must come to an agreement about how law will regulate and about any
norms that they will impose on private ordering. As their work relates to cyberspacein particular, this agreement is quite significant. It will require the nations of theworld to come to a common understanding about this space and to develop a common strategy for dealing with its regulation.
Meanwhile, of course, the space is regulating itself. While nations argue about
what regulation there should be,the code of cyberspace continues to develop with acertain kind of sovereign authority. Its regulations need fewer agreements, and its
structure alone admits new protocols.
What we will see, I suggest, is the emergence of a fairly unified regulation
through code while law remains in flux. This development will cause a shift in effective regulatory power—from law to code, from sovereigns to software. Just as there
was a push toward convergence on a simple set of network protocols,there will be apush toward convergence on a uniform set of rules to govern network transactions.
This set of rules will include not the law of trademark that many nations have, but aunified system of trademark, enforced by a single committee;51 not a diverse set ofpolicies governing privacy, but a single set of rules,implicit in the architecture of Internet protocols;not a range of contract law policies, implemented in different ways
according to the values of different states, but a single, implicit set of rules decided
through click-wrap ag reements and enforced where the agreement says. As Walter
Wriston, the former Citibank chairman and author of The Twilight of Sovereignty,
puts it, “The government can’t do much about it. It’s another thing slipping throughtheir fingers.”52
We should pause to consider just what this will mean.
We have governments for a purpose—in democratic states, we might even say,for good purpose. For much of human history governments could do very little. The
cost of doing anything was, on the margin, extremely high. Much of the world operated under an effective laissez-faire; little of the world was really regulated.
The nineteenth and twentieth centuries were the centuries of government. For
the first time,and brutally in many cases, government took control of both itself andthe market. It became activist, focused on changing the status quo, antilibertarian. It
could take control this way in large part because of the economies of its regulationand the diseconomies of escaping its regulations. Borders keep people in, and hence
governments could regulate.

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Cyberspace und ermines this balance. Regulation does not become more costly,
but escape from regulation becomes easier. The shift is away from the power of government to regulate,and toward the power of individuals to escape government regulation.
Effective regulation then shifts from lawmakers to code writers. The question for
us is whether this shift should be unchecked. And the answer should depend first
upon who the code writers are, and second upon what values they bring to theirwork.
We are just leaving a time when the code writers are a relatively independent
body of experts and code is the product of a consensus formed in forums like the Internet Engineering Task Force (IETF). These were regulatory bodies whose standards set policy, but they were in one sense disinterested in the outcomes: theywanted to produce nothing more than code that would work.
We are entering a very different world where code is w ritten within companies;
where standards are the product of competition; where standards tied to a dominant
standard have advantages. We are entering a world where code is corporate in acommercial sense, and leaving a world where code was corporate in a very different
sense.
To the extent that this code is law, to the extent that it is a chosen structure ofconstraint, we should worry about how it is structured and whose interests may define its constraint, just as we worry when any lawmaking power is assumed by a private body. If code is law, who are the lawmakers? What values are being embedded
into the code?
Both questions are fundamentally about sovereignty. Who should be building
this world,and who should be specifying the values that this world will build into itself?
We have already seen one response to this shift.I have argued that local rules will become less significant because it is hard to enforce local rules relative to global rules.
But doing so is hard only because the architecture makes it hard. We do not have asimple system for distinguishing natives of Canada from natives of New York, so it
is burdensome to apply different rules to each.
But as I discussed in chapter 5, local rules need not be difficult to enforce.A certificate-rich Internet, for example, would enable sovereigns to reclaim some of theirauthority. In a cy berspace where everyone carried citizenship IDs, the Net could bezoned to apply citizen-specific rules. If you come from the United States and are under the age of seventeen,a Swedish server could block you;if you come from Russia,
it could not. A world where certificates were generally available would be a world
where states could again insist that their rules be applied, not the rules of the dominant nation (the United States) or the Net.
Sovereigns will get this. 53 They will come to understand that there is a different
architecture for the Net that would re-enable their own control. When they do, they
will push to facilitate the predicate to this architecture of regulability—certificates.

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C O D EAnd when they do, we again will ha ve to decide whether this architecture of regulability is creating the cyberspace we want.
A choice.
A need to make a choice.
My claim in part 1 was that commerce would help make this choice. Commerce,
I argued, will push for a certificate architecture that would enable its own form ofcontrol. That architecture would enable some forms of state control. But the precise
control would depend on the architecture.
I have not argued against government. I have not said that we should architect
the space to disable collective control. Indeed,I have argued just the opposite.I havemarked myself as one of those loons who actually thinks that collective choice cando some good.
But I am not a statist. I don’t think the best of us is given to us from top-down.
There is a proper space for collective life, and an important space for private life. A
good constitution helps us navigate that balance.
We could architect the system of identification in cyberspace to enable someforms of local control; we could build it so that some forms of local control would
matter. But the simple answers here are not answers: it would be a disaster if cyberspace became a place where localities again completely controlled—if geography,that is, were simply mapped onto the space—just as it would be a disaster if no local (and hence no collective) control existed.
The answer steers a different course.
The last four chapters have told the story of a certain kind of displacement. In each,a type of liberty has been transformed. In the first three,the liberty is displaced by amore efficient architecture of control: fair use is coded away; privacy becomes too
cumbersome; filters become predominant. Architectures emerge that displace a liberty that had been sustained simply by the inefficiency of doing anything different.
In the last story, the liberty of the state to regulate is displaced by a more efficientarchitecture of mobility. Here efficiency works on the side of freedom from regulation. Under this architecture, it becomes too costly to track and control citizens; it
becomes too easy for citizens to live subject to a different set of rules. Local control
declines; the Net’s control increases.
The key is to see that these different changes are structurally the same. In eachcase, the increase in a kind of efficiency throws into relief a value that had been latent. The conflict is between that efficiency (different in each case) and the value latent in the less efficient regime. This is not a value in inefficiency but instead a value
made possible by a particular inefficiency.
I don’t mean this as a criticism of the notion of efficiency. To identify a value thathas been lost by efficiency is only to raise the question of whether in fact the “efficient” is efficient, or efficient to a particular end. The question is what the end
should be. If the value that is lost is of value, then it may no longer be efficient tosovereignty

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sacrifice it. Compare: driving on highways is a quicker way to get between two cities,
but you lose a sense o f the countryside when you drive only on interstate highways.
Nor do I mean to claim that this argument is new. It is practically trite to remark
the values of a slower and quieter time, displaced by the rush of modern life. But toremark these values is not to say that they should be accorded infinite weight. The
mad rush of modern life has no doubt moved many people out of poverty. That is
an undoubted good,and one that weighs heavily against the “loss” of a quieter time.
But the values at stake in these four applications are at the core of who we are
and who we understand ourselves to be, both as a people and as individuals. If webelieve that the regulations of cyberspace will displace these values, then the efficiency o f these regulations in gaining some ends may be inefficient in gaining theends we collectively want. 54 The decision then is not about choosing between efficiency and something else, but about which values should be efficiently pursued. My
claim in each of these cases is that to preserve the values we want, we must act
against what cyberspace otherwise will become. The invisible hand, in other words,
will produce a different world. And we should choose whether this world is one wewant.
How we go about making these choices is the question of part 4. It is the pathology of modern politics that we have become so disgusted with self-government that
our automatic response to government is criticism. Freedom is always freedom fromgovernment; liberty is always liberty from what government would otherwise do.
These were also the thoughts of the people who suffered under the most oppressive
governments of our time—the people of post-Communist Europe. They too, justafter the fall of communism, were keen to find ways to minimize government, tocreate spaces not regulated by government.
But their lessons should be our lessons. What they learned was that liberty does
not necessarily follow from having a space of no government. Freedom from governmental tyranny may be a necessary condition for liberty, but it is not sufficient.
More important, government is necessary to help establish the conditions necessary
for liberty to exist. This is because there are collective values that, acting as individuals, we will not realize. These collective values are sometimes values of liberty,
which governments can act to establish and support. The freedom to contract, toown property, to travel, to vote—all of these rights require massive governmental
support.
Sometimes these collective values deny or restrict liberty in the name of someother value that is weighed more strongly than liberty. The examples that follow
canvass both kinds of values,and the threat that cyberspace will present to each. The
lesson that should emerge from the collection is a lesson about how to respond:
what disciplines we must relearn if we are to preserve these values against changes
that we now only imperfectly control.

P A R T

F O U Rr e s p o n s e s

The lesson of part 1 was that the Net won’t take care of itself. There is no nature thatwill protect cyberspace against change, and there is a tremendous amount of pressure for cyberspace to change. If the change continues along the lines it has taken sofar, it will become a highly regulable space—not the locus of liberty, not a space ofno control, but a technology of government and commercial power wired into every
aspect of our lives.
But that’s just one possible spin. The aim of part 2 was to suggest others. The
built environments of cyberspace could be many, because the choices are many. And
the potential power of government over these choices is great. Government has
many tools with which to bend, or perfect, the architectures of this space. It has
many techniques with which to make cyberspace what it wants cyberspace to be.
These powers, however, are constrained—sometimes by law, more importantly by
the code itself. Open code is one such constraint. But the possibilities of constraint
are not themselves constraints. The message of part 2 was that little is determined,
and much is possible. Choice is possible.
Part 3 exercised that choice. I began with a traditional legal technique for deciding how to go on—let the framers decide. Though the framers knew little about
TCP/IP, the argument was that they established a tradition that can be translated
into the context of cyberspace. They gave us the values,and our task is to carry thosevalues into cyberspace.
But translation does not deal well with latent ambiguities. My argument in thebalance of part 3 was that there are many such ambiguities. In four crucial areas of212

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social and political life in cyberspace, the words of the framers will not carry us far
in making the necessary choices. Where translation gives out, a ch oi ce must be
made.
The question for this part is whether we’re capable of that choice. My argument
is that we’re not. We have so completely passed off questions of principle to the judicial branch,and so completely corrupted our legislative process with the backhandof handouts, that we confront this moment of extraordinary importance incapableof making any useful decisions. We have been caught off-guard,drunk on the political indulgence of an era, and the most we may be able to do is stay on our feet until we have time to sober up.

F I F T E E N
t heproblems

we

fa ce

I’ve ar gued t h at t h er e is a ch oice about h ow cyber space sh oul d be, but t h at
we’re disabled from making that choice. We are disabled for three very different reasons.One 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 choicemust 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 must be made, yet
we haven’t the institutions, or practice, to make them.
In part 4,I describe these problems,and in chapter 16,I sketch three types of solutions to them. Neither part will be complete, but both should be suggestive. The
problems that cyberspace reveals are not problems with cyberspace. They are realspace problems that cyberspace shows us we must now resolve.

P R O B L E M S

W I T HC O U R T S

There are two types of constitutions, one we could call codifying, and the othertransformative. A codifying constitution tries to preserve something essential fromthe constitutional or legal culture in which it is enacted—to protect that culture
against changes in the future. A transformative constitution (or amendment) does
the opposite: it tries to change something essential in the constitutional or legal culture in which it is enacted—to make life different in the future, to remake some partof the culture. The symbol of the codifying regime is Ulysses tied to the mast; thesymbol of the transformative is revolutionary France.
Our Constitution has both regimes within it. The Constitution of 1789—before
the first ten amendments—was a transformative constitution. 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 entrench certain values against future change. 2 The Civil

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War amendments were transformative again. They aimed to remake part of what theAmerican social and legal culture had become—to rip out from the American soula 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 regimeis haunted with self-doubt. Constitutional moments die, and when they do, the institutions charged with enforcing their commands, such as courts, face increasing
political resistance.Flashes of enlightenment notwithstanding, the people go back totheir old ways, and courts find it hard to resist.
Our own constitutional history reveals just this pattern. The extraordinary moment after the Civil War—when three amendments committed to civil equality werecarved into our Constitution’s soul—had passed by 1875. The nation gave up thestruggle for equality and turned to the excitement of the industrial revolution.Laws
enforcing segregation were upheld;4 the right of African Americans to vote was denied;5 laws enforcing what was 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 Civil War amendments. It would not be until Brown v Boardof 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 context. For a time they may beable to insist on a principle greater than the moment. But that time will pass. If theworld returns to its racist ways, even a strong statement of principle enacted within
our Constitution’s text permits a court only so much freedom to resist. Courts are subject to the constraints of what “everyone” believes is right, even if what “everyone” believes is inconsistent with basic constitutional texts.
Life is easier with a codifying constitution. For here there is a tradition that the
text is just meant to entrench. If this tradition is long-standing, then there is hopethat it will remain solid as well.
But even a codifying constitution faces difficulties. Codification notwithstanding, if the passions of a nation become strong enough,there is often little a court can
do. The clarity of the First Amendment’s protection of freedom of speech notwithstanding, when the speech was that of communists and anarchists, the government
was allowed the power to punish.8 The presumption of innocence and equality
notwithstanding, when Japan bombed Pearl Harbor, the government was allowed to
shuttle every West Coast American of Japanese descent into concentration camps.9
These are the realities of courts in a democratic system. We lawyers like to romanticize the courts, to imagine them as above influence. But they have never beenso, completely, or forever. They are subject to a political constraint that matters.
They are an institution within a democracy. No institution within a democracy canbe the enemy of the people for long.

the problems we face215

It is against this background that we should think about the problems raised inpart 3. In each case, my argument was that we will need to choose the values wewant cyberspace to embrace. These questions are not addressed by any clear constitutional text or tradition. In the main,they are questions affecting the codifying partof our tradition, but they are also cases of latent ambiguity. There is no “answer” tothem 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 theSupreme Court of Chief Justice Earl Warren. Many people think (but I am not oneof this crowd) that his was a wildly activist court, that it “made up” constitutionallaw and imposed its own “personal values” onto the political and legal system. Manyview the Rehnquist Court as providing a balance to this activism of old.
I think this view is wrong. The Warren Court was not “activist” in any sense inconsistent with a principle of interpretive fidelity, and the Rehnquist Court is no lessactivist than the Warren Court. The question, however, is not what was true; thequestion is what people believe. What we believe is that the past was marked by activism,and that this activism was wrong.
Wrong for a court, at least. The opponents of the Warren Court are not just conservatives. Some are liberals who believe that the Court was not acting judicially.10
These opponents believe that the Court was making, not finding, constitutional
law—that it was guided by nothing more than whether it could muster a majority.
Any court risks seeming like a “Warren Court” when it makes judgments that
don’t seem to flow plainly or obviously from a legal text. Any court is vulnerable
when its judgments seem political. Against the background of history, our Supreme
Court is particularly vulnerable to this view. The Court will feel the reaction when
its actions seem political.
My point is not that the Court fears retaliation; our Court is secure within ourconstitutional 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, then any attempt at translation will seem to be something more.
And whenever it seems as if the Court is doing more than simply preserving founding
commitments, the perception is created that the Court is simply acting to ratify its
own views of a proper constitutional regime rather than enforcing judgments thathave 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 ismaking value or policy choices.The claim is not that values are improper reasons fora court to decide a case. To the contrary: value choices or policy choices, properly rat ified by the political process, are appropriate for judicial enforcement. (The problem
with the choices in cases of latent ambiguity is that they do not seem to have been216

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properly ratified by the political process. They reflect values, but the values do notseem to be taken from the Constitution.)“Political”thus refers to judgments not clearly ratified and presently contested.14
When the very foundations of a judgment are seen to be fundamentally contested,
and when there is no reason to believe that the Constitution takes a position on thiscontest, then enforcing a particular outcome of translation 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 latent
and a choice really seems to be a choice, translation will not suffice. My claim is that
the Court will not be the locus for that choice.
This might seem overly pessimistic, especially when we consider the success instriking down the Communications Decency Act.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 the constitutional result, and both courts reported their findings with a confidence that madethem seem set in stone.
These findings, for the most part, were exceptionally good descriptions of 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 telling us about the nature ofcyberspace, but as we’ve seen ,c yberspace has no intrinsic nature. It is as it is designed.
By striking down Congress’s efforts to zone cyberspace, the courts were not telling us
what cyberspace is but what it should be. They were making, not finding, the nature ofcyberspace; 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 toknow what is natural, or given about it,and what part can be changed. But over time
courts will see that there is little in cyberspace that is “natural.” Limits on the architecture of cyberspace that they have reported as 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, courts will more and more feel thatthey cannot really say what cyberspace is. They will see that their findings affectwhat 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 thesejudgments are policy, they will be left to policy makers, not judges.17
One can hardly blame judges for this. Indeed, in some cases their deference
should be encouraged.18 But we should not underestimate its consequences. In the
future legislatures will act relatively unconstrained by courts; the values that wemight call constitutional—whether enacted into our Constitution or not—will constrain these legislatures only if they choose to take them into account.

the problems we face217

Before we turn to what we might expect from legislatures, consider one otherproblem with courts—specifically, the problem confronting our constitutional tradition as the Constitution moves into the context of cyberspace. This is the problemof “state action.”
Architectures constitute cyberspace;these architectures are varied; they variously
embed political values; some of these values have constitutional import. Yet for themost part—and fortunately—these architectures are private. They are constructedby universities or corporations and implemented on wires no longer funded by the
Defense Department. They are private and therefore traditionally outside the scopeof constitutional review. The constitutional values of privacy, access, rights ofanonymity, and e quality need not trouble this new world, since this world is “private” and the Constitution is concerned only with “state action.”
Why this should be is not clear to me. If code functions as law, then we are creating the most significant new jurisdiction since the Louisiana Purchase, yet we arebuilding it just outside the Constitution’s review. Indeed, we are building it just sothat the Constitution will not govern—as if we want to be free of the constraints ofvalue embedded by that tradition.
So far in this book,I have not relied very much on this private/public distinction.
You might say I have ignored it. 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.
The ambiguity is this: the Constitution was drawn at a time when basic architectures were set. The framers found the laws of nature,the laws of 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-conscious control
was limited. Town planning was not limited,19 but beyond laying out a space, there
was little these founders could do about the rules that would govern the built environment of this space.
Cyberspace, however, has different architectures, whose regulatory power is not
so limited. An extraordinary amount of control can be built into the environmentthat people know there. What data can be collected, what anonymity is possible,
what access is granted, what speech will be heard—all these are choices, not “facts.”
All these are designed, not found.
Our context, therefore, is very different. That the scope of constitutional review
was limited in the first context does not compel it to be similarly limited in the second. It could be, but we cannot know that merely from its being so limited in a very
different context.
We have no answer from the framers, then, about the scope of state action. We
must decide on our own what makes better sense of our constitutional tradition. Is
it more faithful to our tradition to allow these structures of control, the functional
equivalent of law, to develop outside the scope o f constitutional review? Or to ex-

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tend constitutional review to the structures of private regulation, to preserve thosefundamental values within our t radition?
These are hard questions,though it is useful to note that they are not as hard to ask
in other constitutional regimes. The German tradition, for example, would have lesstrouble with the idea that private structures of power must ultimately be checkedagainst fundamental constitutional values.20 The German tradition, of course, is not
our own. But the fact that they have sustained this view suggests that we may makespace for the constraint of the Constitution without turning everything into a constitutional dispute. Nevertheless, it will take a revolution in American constitutional law
for the Court, self-consciously at least, to move beyond the limits of state action.
It is in these two ways then that courts are stuck. They cannot be seen to be creative, and the scope of their constitutional review has been narrowed (artificially, I
believe) to exclude the most important aspect of cyberspace’s law—code. If there aredecisions about where we should go, and choices about the values this space will include,then these are choices we can’t expect our courts to make.

P R O B L E M S

W I T HL E G I S L A T O R S

At a conference in former Soviet Georgia, sponsored by some Western agency of
democracy, an Irish lawyer was trying to explain to the Georgians what was so great
about a system of judicial review—the system by which courts can strike down theacts of a parliament. “Judicial review,” he enthused, “is wonderful. Whenever the
court strikes down an act of parliament, the people naturally align themselves withthe court,against the parliament. The parliament, people believe,is just political; thesupreme court, they think, is principled.” A Georgian friend, puppy-democrat that
he is,asked, “So why is it that in a 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 3—we arelikely to get a sinking feeling. This seems impossibly difficult, this idea of governing
cyberspace. Who is cyberspace? Where would it vote? The very idea seems abhorrent
to cyberspace itself. As John Perry Barlow put it in his “Declaration of the Independence of Cyberspace”:
Governments of the Industrial World, you weary giants of flesh and steel, I comefrom Cyberspace, the new home of Mind. On b ehalf of the future, I ask you ofthe past to leave us alone. You are not welcome among us. You have no sovereignty where we gather.

But our problem is not with governance in cyberspace. Our problem is simply
with governance. There is no special set of dilemmas that cyberspace will present;the problems we face219

there are only the familiar dilemmas of modern governance, but in a new place.
Some things are different;the target of governance is different; the scope of international concerns is different. But the difficulty with governance will not come fromthis different target; the difficulty comes from our problem with governance.
Throughout this book, I’ve worked to identify the choices that cyberspace 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 turn out. Clearly some of thesechoices are collective—about how we collectively will live in this space. One would
have thought that collective choices were problems of governance. Yet very few of us
would want government to make these choices. Government seems the solution to
no problem we have, and we should understand why this is. We should understandthe Irish in us.
Our skepticism is not a point about principle. Most of us are not libertarians. We
may be antigovernment, but for the most part we believe that there are collective
values that ought to regulate private action. We are also committed to the idea thatcollective values should regulate the emerging technical world. Our problem is that
we do not know how it should be regulated, or by whom.
Like the Irish, we are weary of governments. We are profoundly skeptical about
the product of democratic processes. We believe, rightly or not, that these processes
have been captured by special interests more concerned with individual than collective values. Although we believe that there is a role for collective judgments, we are
repulsed by the idea of placing the design of something as important as the Internet
into the hands of governments.
The examples here are many, and the pattern arresting. The single unifying message in the government’s own description of its role in cyberspace is that it should
simply get out of the way. In the area of Internet commerce, the government says,commerce should take care of itself.(At the same time, of course,the government ispassing all sorts of laws to increase the protections for intellectual property.)
A perfect example of this point is the government’s recent hand-off of control ofthe management of the domain name system.21 For some time the government had
been thinking about how best to continue the governance or control of the domainname system. It had originally farmed the work out under National Science Foundation contracts, first to a California nonprofit organized by the late Jon Postel, andthen to a private for-profit corporation, Network Solutions.
The contracts were due to lapse in 1998, however, and for a year the government
thought in earnest about what it should do. In June 1998 it released a White Papercalling for the establishment of a nonprofit corporation devoted to the collective interest of the Internet as a whole and charged with deciding the policy questions relating to governing the domain name system. Policy-making power was to be taken
away from government and placed with an organization outside its control.
Think about the kinds of questions my Georgian friend might ask. A “nonprofit
corporation devoted to the collective interest”? Isn’t that just what government is
supposed to be? A board composed of representative stakeholders? Isn’t that what a220

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Congress is? Indeed, my Georgian friend might observe that this corporate structure
differs from government in only one salient way—there is no ongoing requirementof elections.
This is policy making vested in what is in effect an independent agency, but one
wholly outside the democratic process. And what does this say about us? What doesit 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 ordinary government. We have lost faith in the idea that the product of representative government might be something more than mere interest—that, to steal the
opening line from Justice Marshall’s last Supreme Court opinion, power, not reason,is the currency of deliberative democracy.22 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.
I understand this resignation, but it is something we must overcome. We must
isolate the cause and separate it from the effect. If we hate government, it is not b ecause the idea o f collective values is anathema. If we hate government, 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. We must find a way to get over it.
We stand on the edge of an era that demands we make fundamental choices
about what life in this space, and therefore life in real space, will be like. These
choices will be made; there is no nature here to discover. And when they are made,the values we hold sacred will either influence our choices or be ignored. The valuesof free speech, privacy, due process, and equality define who we are. If there is nogovernment to insist on these values, who will do it?
When government steps aside,it is not as if nothing takes its place. Paradise does
not prevail. It’s not as if private interests have no interests,as if private interests don’t
have ends they will then pursue. To push the antigovernment button is not to teleport us to Eden. When the interests of government are gone, other interests taketheir place. Do we know what those interests are? Are we so certain they are better?
If there are choices to be made,they will be made. The question is only by whom.
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 stand by. Or we cantry to imagine a world where choice can again be made collectively, and responsibly.

P R O B L E M S

W I T HC O D EAt a recent workshop, Jean Camp, a Harvard computer scientist who teaches in the
Kennedy School of Government,said that I had missed the point. The problem, shesaid, is not that “code is law” or that “code regulates.” The problem is that “wehaven’t had a conversation about how code regulates.” And then to the rest of the au-the problems we face221

dience, she said, “Did all of you like the debate we had about whether Microsoft
Word documents would carry in them a unique identifying number? Was that a satisfying debate?”23
Her irony carried with it an important insight, and an interesting mistake. Of
course, for the computer scientist code is law. And if code is law, then obviously thequestion we should ask is: Who are the lawmakers? Who writes this law that regulates us? What role do we have in defining this regulation? What right do we have toknow of the regulation? And how might we intervene to check it?
All that is perfectly obvious for someone who thinks and breathes the regulations of code. But to a lawyer, both Camp and I, throughout this book,have made avery basic mistake. Code is not law, any more than the design of 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 different from the
U.S. Code, its diff erences don’t mean there are not 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 the cost to those who would deviate from the rules r equired by the code. West Coast Code does the same. And while
we might argue that East Coast Code is more prevalent—that it regulates and controls a far larger part of our lives—that is a difference in degree, not kind. It’s a reason to be balanced in our concern, not to be unconcerned.
Of course there are differences between law and code. I don’t think that everything is necessarily public, or that the Constitution should regulate every aspect ofprivate life.I don’t think it is a constitutional issue when I turn off Rush Limbaugh.
But to say that there should be a difference is not to say that the difference should beas dramatic or absolute as present constitutional thinking makes it. When welawyers tell the Jean Camps of the world that they are simply making a “mistake”
when they bring to code the values of public law, it is we who are making the mistake. Whether code should be tested with these constraints of public value is a question, not a conclusion. It needs to be decided by argument,not definition.
The formalism in American law, which puts beyond review these structures ofcontrol,is a third pathology that inhibits choice. Courts are disabled,legislatures pathetic,and code untouchable. That is our present condition. It is a combination thatis deadly for action—a mix that guarantees that little good gets done.

S I X T E E N
r e s p o n s e s

We n eed a pl a n . I’ve t ol d a da r k st or y a bo ut t h e ch oices t h at a ch a n gi n gcyberspace will present, and about our inability to respond to these choices. I’ve
linked this inability to three features of our present legal and political culture. In thisshort chapter, I consider three responses. Of necessity these responses are nothing
more than sketches, but they should be enough to suggest the nature of the changes
we need to make.

R E S P O N S E S

O FAJ U D I C I A R Y

I’ve said that we should understand the courts’ hesitancy as grounded in prudence.
When so much seems possible, and when a rule is not clearly set, it is hard for acourt to look like a court as it decides what policies seem best.1
Although I agree with this ideal of prudence in general, we need to move its
counsel along—to place it in context and limit its reach. We should isolate thesource of the judge’s difficulty. Sometimes a certain hesitation before resolving thequestions of the Constitution in cyberspace finally, or firmly, or with any pretense topermanence, is entirely appropriate. But in other cases, judges—especially lower
court judges—should be stronger. Lower court judges, because there are many ofthem and because many are extraord i n a ri ly talented and creative. Their voices
would teach us something here, even if their rulings were temporary or limited inscope.
In cases of simple translation (where there are no latent ambiguities and our tradition seems to speak clearly), judges should firmly advance arguments that seek topreserve original values of liberty in a new context. In these cases there is an important space for activism. Judges should identify our values and defend them, not necessarily because these values are right, but because if we are to ignore them, we should
do so only because they have been rejected—not by a court but by the people.

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In cases where translation is not so simple (cases that have latent ambiguities),judges,especially lower court judges, have a different role. In these cases, judges (especially lower court judges) should kvetch. They should talk about the questions
these changes raise, and they should identify the competing values at stake. Even if
the decision they must adopt in a particular case is deferential or passive, it should
be deferential in protest. These cases may well be a place for prudence, but to justify
their passivity and compensate for allowing rights claims to fail, judges should raise
before the legal culture the conflict presented by them. Hard cases need not makebad law, but neither should they be treated as if they were easy.
That is the simplest response to the problem of 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 thecourts 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, theidea is this: when the Supreme Court confronts questions 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 nonethelessproceed to resolve it in the way most likely to induce democratic review of the resolution. If the resolution induces the proper review, the Court should let stand the resultsof 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 in mind when they established a Supreme Court and permitted judicial review. Of course they did not have this in mind. The doctrine of a second look is notdesigned for the problems the framers had in mind. As a resp onse to the problemsof latent ambiguities, it itself reveals a latent ambiguity.
We might deny this ambiguity. We might argue that the framers envisioned that
the Court would do nothing at all about latent ambiguities; that in such contexts thedemocratic process, through Article V, would step in to correct a misapplication or
to respond to a changed circumstance. That may well have been their view. But I
don’t think this intent is clear enough to foreclose our consideration of how wemight best confront the coming series of questions on the application of constitutional value to cyberspace.I would rather err on the side of harmless activism thanon the side of debilitating passivity. It is a tiny role for courts to play in the muchlarger conversation we need to have—but to date have not started.

R E S P O N S E S

F O R

C O D EA second challenge is confronting the law in code—resolving, that is, just how wethink about the regulatory power of code. Here are a number of ideas that together

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would push us toward a world where regulation imposed through code would haveto satisfy constitutional norms.
Here again is the link to open code. In chapter 8, when I described a kind of checkthat open code would impose on government regulation, I argued that it was harderfor government to hide its regulations in open code, and easier for adopters to disable
any regulations the government imposed. The movement from closed to open code
was a movement from regulable to less regulable. Unless you are simply committed todisabling government’s power, this change cannot be unambiguously good.
But there are two parts to the constraint that open code might impose; one iscertainly good, and the other is not nece s s a ri ly terrible. The first part is transparency—the regulations would be known. The second part is resistance—that
known regulations could be more easily resisted. The se cond part need not follow
from the first, and it need not be debilitating. It may be easier to disable the regulations of code if the code is in the open. But if the regulation is legitimate, the state
can require that it not be disabled. If it wants,it can punish those who disobey.
Compare the regulation of seatbelts. For a time the federal government requiredthat new cars have automatic seatbelts. This was the regulation of code—the carwould 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 state didn’t like it when people disabled
their seatbelts, it was free to pass laws to punish them. In the end the government
did not press the issue—not because it couldn’t, but because the political costs
would have been too high. Politics checked the government’s regulation, just as itshould.
This is the most we can expect of the regulation of code in cyberspace. There isa trade-off between transparency and effectiveness. Code regulation in the context
of open code is more transparent but also less binding. Government’s power toachieve regulatory ends would be constrained by open code.
But there is a benefit as well. Closed code would make it easier for the government to hide its regulation and thus achieve an illicit regulatory end. Thus, there isno 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 check on government power to say that the only rules it should impose arethose that would be obeyed if imposed transparently.
Does this mean that we should push for open rather than closed code? Does itmean that we should ban closed code?
No. It does not follow from these observations that we should ban closed code orthat we must have a world with only open code. But they do point to the values weshould insist on for any code that regulates. If code is a lawmaker, 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

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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 would 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 e ven if the code for these components
was closed, the functions and regulation of the end product would be open.4 Componentized architecture could be as transparent as an open code architecture, andtransparency could thus be achieved without opening the code.
The best code (from the perspective of constitutional values) is both modular
and open. Modularity en su res that better components could be substituted forworse. And from a competitive perspective, modularity permits greater competitionin the development of improvements in a particular coding project.
It is plausible, however, that particular bits of code could not be produced if itwere produced as open code,that closed code may sometimes be necessary for competitive survival. If so, then the compromise of a component system would permit
something of the best of both worlds—some competitive advantage along withtransparency 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’Brienargue, the existing structure of copyright protection for software tends to push thedevelopment of software away from a modular structure.5 The law prefers opaque totransparent 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 theytend to reduce competition in the production of software.6 This may well be right.
But the greater perversity is again constitutional.Our law creates an incentive to enclose as much of an intellectual commons as possible. It works against publicity andtransparency, and helps to produce,in effect, a massive secret government.
Here is a place for concrete legal change. Without resolving the question ofwhether closed or open code is best, we could at least push closed code in a directionthat would facilitate greater transparency. Yet the inertia of existing law—which
gives software manufacturers effectively unlimited terms of protection—works
against change. The politics is just not there.

R E S P O N S E S

O FAD E M O C R A C Y

In his rightly famous book Profiles in Courage, then-Senator John F. Kennedy tells
the story of Daniel Webster, 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, I wish to226

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speak today, not as a Massachusetts man, nor as a Northern man, but as an American. . . . ”7
When Webster said this—in 1850—the words “not as a Massachusetts man” hada significance that we are likely to miss today. To us, Webster’s statement seems perfectly ordinary. What else would he be but an American? 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 theircitizenship in a state to their citizenship in the nation. Webster spoke just as it was
becoming possible to identify yourself, apart from your state, as a member of a nation.
As I’ve said,at the founding citizens of the United States (a contested concept itself) were citizens o f particular states first. They were loyal to their own states because their lives were determined by where they lived. Other states were as remote tothem as Tibet is to us—indeed, today it is easier for us to go to Tibet than it was thenfor a citizen of South Carolina to visit Maine.
Over time, of course, this changed. In the struggle leading up to the Civil War, inthe battles over Reconstruction, and in the revolution of industry that followed, individual citizens’ sense of themselves as Americans grew. In those national exchanges and struggles, a national iden ti ty was born. Only when citizens 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 they have happened only in the past. Yet no one can deny that the sense of being“an American” shifted in the nineteenth century, just as no one can deny that the senseof being “a European” is shifting in Europe 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 stand on
the brink of being able to say, “I speak as a citizen of the world,” without the ordinary person thinking, “What a nut.” We stand just on the cusp o f a time when ordinary citizens will begin to feel the effects of the regulations of other governments,
just as the citizens of Massachusetts came to feel the effects of slavery and the citizens of Virginia came to feel the effects of a drive for freedom. As Nicholas Negroponte puts it, “Nations today are the wrong size. They are not small enough to belocal 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 thisspace that is not part of any particular jurisdiction but subject to the regulations of
all jurisdic tions, we will increasingly ask questions about our status there. We will
begin to feel the entitlement Webster felt, as an American, to speak about life in another part of the United States. For us, it will be the entitlement to speak about life
in another part of the world, grounded in the feeling that there is a community ofinterests that reaches beyond diplomatic ties into the hearts of ordinary citizens.
What will we do then? When we feel we are part of a world, and that the world
regulates us? What will we do when we need to make choices about how that world
regulates us, and how we regulate it?

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The weariness with government that I described at the end of the last chapter is nota condition without cause. But its cause is not the death of any ideal of democracy. We
are all still democrats; we simply do not like what our democracy has produced. And
we cannot imagine extending what we have 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 argumentof this book, and so only one that I will discuss in any depth. The other is much
deeper—a sense of a basic corruption in any syst em that would allow so much political influence to be peddled by those who hand out money. This is the corruptionof campaign financing, a corruption not of people but of process. Even good soulsin Congress have no choice but to spend an ever-increasing amount of their timeraising an ever-increasing amount of money to compete in elections. This is an arms
race,and our Supreme Court has effectively said that the Constitution requires it.9
But there is a second, oddly counterintuitive reason for this increasing failure of
democracy. This is not that government listens too little to the views of the public.
It is that government listens too much. Every fancy of the population gets echoed inpolls,and these polls in turn pulse the democracy. Yet the message the polls transmit
is not the message of democracy; their frequency and influence is not the product ofincreased significance. The president makes policy on the basis of overnight polling
only because overnight polling is so easy.
This is partly a technology problem. Polls mark an interaction of technology anddemocracy that we are just beginning to understand. As the cost o f monitoring thecurrent view of the population drops, and as the machines for permanent monitoring of the population are built, we are producing a perpetual stream of data about
what “the people” think about every issue that government 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 isa good.
It has never been our ideal—constitutionally at least—that democracy 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 of the people. It was to be deliberative, reflective,and balanced by limitations imposed by a constitution.
But maybe, to be consistent with the arguments from part 3, I should say that atleast there was a latent ambiguity about this question. In a world where elections
were extremely costly and communication was complicated, democracy had to getby 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 uneducated or incapable ofgood judgment, and not because democracy needs to fail, but because it is often the228

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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 notbeing particularly noticed or considered.
Technology encourages this sort of judgment. As a consequence of the massive
increase in reporting on news, we are exposed to a greater range of information
about the world today than ever before. This exposure, in turn, gives us confidence
in our judgment. Never having heard of East Timor, people when asked might wellhave 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 thisspin, 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 the
only data we have. But these polls are not the only possible kinds of polls. There aretechniques for polling that compensate for the errors of the flash poll and produce
judgments that are both more considered and more stable.
An example is the “deliberative” poll devised by Professor James Fishkin.10
Rather than a pulse, Fishkin’s polls seek an equilibrium. They bring a cross-sectionof people together for a weekend at a time. These people, who represent all segmentsof a society, are given information before the poll that helps ensure that they know
something about the subject matter. After being introduced to the topic of the poll,
they are then divided into small juries and over the course of a couple of days argue
about the topic at issue and exchange views about how best to resolve it. At the end
they are asked about their views,and their responses at this point form the “results”
of the poll.
The great advantage of this system is not only that information is provided butthat the process is deliberative. The results emerge out of the reasoning 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. And if it did,it might well dogood, as a counterweight to the flash pulse and the perpetually interested processthat ordinary g overnment is. It would be a corrective to the process we now have,and one that might bring hope.
Cyberspace might make this process where reasons count more possible; it certainly makes it e ven more necessary. It is possible to imagine using the architectureof 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.11
There is a magic in a process where reasons count—not where experts rule orwhere only smart people have the vote, but where power gets set in the face of reason. The magic is in a process where citizens give reasons, and citizens understandthat power is constrained by these reasons.

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229This was the magic that Tocqueville wrote of when he told the world of theamazing system of juries in the United States. Citizens serving on juries must makereasoned, persuasive arguments in coming to decisions that often have extraordinary consequences for social and political life. Writing in 1835, Tocqueville said ofjuries:The jury . . . serves to communicate the spirit of the judges to the minds of all thecitizens; and this spirit, with the habits which attend it, is the soundest preparation for free institutions. It imbues all classes with a respect for the thing judged
and with the notion of right. . . . It teaches men to practice equity; every man
learns to judge his neighbor as he would himself be judged. . . . The jury teaches
every man not to recoil before the responsibility of his own actions and impresses
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 they are bound to discharge towards society and the part which they takein its government. By obliging men to turn their attention to other affairs thantheir own, it rubs off that private selfishness which is the rust of society.12

It wasn’t Tocqueville, however, or any other theorist, who sold me on this 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 into my memory is a picture 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, not Clinton,though Hillary Rodham was working with him. I pressed him to tell me everything; I wanted to hear about the battles. It was not a topic that we discussed muchat home. My parents were Republicans. My uncle was not.
My uncle’s job was to teach the congressmen about the facts in the case—to firstlearn everything that was known,and then to teach this to the members of the committee. Although there was much about his story that I will never forget, the mostcompelling part was not really related to the impeachment. 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
is not the bluffing, or the outrage, or the strategies and tactics. It is somethingmuch 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 astory, to persuade.
When it works, it does something to the people who experience this persuasion. Some, for the first time in their lives, see power constrained by reason. Not

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C O D Eby 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 its elitist version, of experts deciding what’s best, nor
in its Rikki Lake version, of excited crowds yelling opponents down. But in its 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 o f this back into our democracy. The more we do, the lesssignificant the flash pulses will be. And the less significant these flash pulses are, themore we might have faith again in that part of our tradition that made us revolutionaries in 1791—the commitment to a form of government that respects deliberation, and the people,and that stands opposed to corruption dressed in aristocratic
baubles.

S E V E N T E E N
wh at

dec landoesn’ t

ge t

Decl an McCul l agh is a wr it er wh o wor ks f or Wired News. He al so r uns a“listserve” that feeds to subscribers the bulletins that he has decided to forward andfacilitates 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.
But Declan uses the list now for more than a discussion of censorship. He feeds
to the list other news that he imagines his subscribers will enjoy. So in addition tonews 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 the nation’s antitrust laws. I’m a subscriber; I enjoy the posts.
Declan’s politics are clear. He’s a smart, if young, libertarian whose first reaction
to any suggestion that involves government is scorn. In one recent message,he citeda story about a British provider violating fax spam laws; this,he argued,showed thatlaws regulating e-mail spam are useless. 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 I watched the discussion part of the list as well. But the most striking feature about this list to me is theslow emergence of a new topic of concern—one that now gets more posts than “censorship.”This topic is Y2K—the “year 2000 problem” that threatens to disrupt much inour social and economic life as computers discover that the new millennium does
not compute. As clearly as Declan’s libertarianism comes through, so too does his
obsession with Y2K. He is either terrified or perversely amused by what the new millennium will bring to the computer next door.
From the perspective of this book, these twin concerns—with regulation by thestate and regulation by code—are quite consistent. Just as we should worry about
the bad regulations of law, so too should we worry about the bad regulations of232

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code. And from the perspective of this book,Y2K is our first real crisis in code. It is
the first time that the culture as a whole will have to confront the environmental
damage done by shortsighted coders.Like shortsighted lawmakers,they have createda crisis whose proportions we cannot yet see.
But from the perspective of Declan’s libertarianism, these twin concerns are
harder to reconcile.Y2K is the product of a certain kind of libertarianism. It is the
product of not thinking through the regulation of code, and of law not properly
holding coders responsible for their code. Thousands of coders went about theirwork thinking their actions were simply their own. The culture and the legal systemessentially treated those actions as those of individuals acting alone. Now, years after the first bad code was compiled, we are faced with a kind of environmental disaster: we are surrounded by code that in critical and unpredictable ways will
misfire—at a minimum causing the economy millions of dollars, and under somedoomsday scenarios costing much worse damage.
It is a lack of a certain kind of regulation that produced the Y2K problem, not
too much regulation. An overemphasis on the private got us here,not an overly statist federal government. Were the tort system better at holding producers responsible for the harms they create, code w riters and their employers would have b een
more concerned with the harm their code would create.Were contract law not so eager to allow liability in economic transactions to be waived, the licenses that absolved the code writers of any potential liability from bad code would not haveinduced an even greater laxity in what these code writers were producing. And were
the intellectual property system more concerned with capturing and preserving
knowledge than with allowing private actors to capture and preserve profit, wemight have had a copyright system that required the lodging of source code with thegovernment before the protection of copyright was granted,thus creating an incentive to preserve source code and hence create a resource that does not now exist butthat we might have turned to in undoing the consequences of this bad code. If in allthese ways government had been diff erent, the problems of Y2K would have b een
different as well.1
Y2K is just one example of a more general point that has been at the core of thisbook. We’ve had technology in our lives forever, and people have written about theconsequences of technology for society since there has been technology. But thiscontinuity should not blind us to an important disconnect we are about to see. Codemay be only a difference in degree, but a difference in degree at some point becomesa difference in kind. The unintended consequence of private coding behavior is atime-bomb set to explode over the next year or so. The Y2K problem should awaken
us to other time-bombs in our lives—that is, to the general effect that code will haveon our lives.
For here is a reality that all this “code talk” obscures. By speaking as I have about
the code in cyberspace, by describing how government might regulate that code, by
making it seem as if the worlds I am describing were in some sense elsewhere,I have

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obscured an obvious and critical point that the Y2K crisis makes real: code is notelsewhere,and we are not elsewhere when we feel its effects. As Andrew Shapiro puts
it: “Seeing cyberspace as elsewhere . . . misconstrue[s] its legal significance. It . . .
keep[s] us from seeing the way that regulatory forces like . . . code, which some say
are ‘there,’ are actually affecting us here.”2
We live life in real space, subject to the effects of code. We live ordinary lives, subject to the effects of code. We live social and political lives, subject to the effects ofcode. Code regulates all these aspects of our lives, more pervasively over time thanany other regulator in our life. Should we remain passive about this regulator?
Should we let it affect us without doing anything in return?
And thus again the odd juxtaposition of Declan’s two obsessions. Governments
should intervene, at a minimum, when private action has public consequences; whenshortsighted actions threaten to cause long-term harm; when failure to intervene undermines significant constitutional values and important individual rights; and whena form of life emerges that may threaten values we believe to be fundamental.
Yet so pervasive is our sense o f the failure of government that a writer as intelligent as Declan cannot see the implications of these two great evils that he does somuch to report. If we believe that government cannot do anything good, then Declan’s plea—that it do nothing—makes sense. And if government can do nothing,then it follows that we should treat these man-ma de disasters as natural. Just as w e
speak of the disaster of the West Coast sliding into the Pacific, so too should wespeak of a disaster of code sliding us into another dark age. Neither can we do anything about, yet both are great topics for growing audiences.
I’ve advocated a different response. We need to think collectively and sensibly
about how this emerging reality will affect our lives. 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 sketchedsmall 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. I’ve spoken as if there could be hope. But Hope was just atelevision commercial.
The truth, I suspect, is that the Declans will win—at least for now. We will treat
code-based environmental disasters—like Y2K, like the loss of privacy, like the censorship of filters,like the disappearance of an intellectual commons—as if they were
produced by gods, not by Man. We will watch as important aspects of privacy andfree speech are erased by the emerging architecture 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—something we cannot direct because we cannot direct
anything. Something instead that we must simply accept, as it invades and transforms our lives.

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Some say this is an exciting time. But it is the excitement of a teenager playing
chicken,his car barreling down the highway, hands held far from the steering wheel.
There are choices we could make, but we pretend that there is nothing we can do. We
choose to pretend; we shut our eyes. We build this nature, then are constrained bythis nature we have built.
It is the age of the ostrich. We are excited by what we cannot know. We are proudto leave things to the invisible hand. We make the hand invisible by looking theother way.
But it is not a great time, culturally, to come across revolutionary technologies.
We are no more ready for this revolution than the Soviets were ready for theirs. We,
like the Soviets, have been caught by a revolution. But we, unlike they, have something to lose.

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 argument. My hope is to provide a richer sense of how these modalities—law, the market, norms, andarchitecture—interact as they regulate. Such an understanding is useful, but not necessary, to the argument of this book. I’ve therefore 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 you not tocommit murder and threatens a severe penalty if you do so anyway. Or it commands you
not to trade in cocaine and threatens barbaric punishments if you do. In both cases,thepicture of law is fairly simple and straightforward: don’t do this, or else.
Obviously law is much more than a set of commands and threats.2 Law not only
commands certain behaviors but expresses the values of a community (when, for example, it sets aside a day to celebrate the birth of Martin Luther King, Jr.);3 constitutes orregulates structures of government (when the Constitution, for example, establishes in
Article I a House of Representatives distinct from a Senate); and establishes rights that
individuals can invoke against their own government (the Bill of Rights). All these areexamples of law; by focusing on just one kind of law, I do not mean to diminish the significance of these other kinds. Still, this particular aspect of law provides a well-definedconstraint on individuals within the jurisdiction of the law giver, or sovereign. That constraint—objectively—is the threat of punishment.
Social norms constrain differently. By social norms, I mean those normative constraints imposed not through the organized or centralized actions of a state, but throughthe many slight and sometimes forceful sanctions that members of a community impose
on each other. I am not talking about patterns of behavior: it may be that most people
drive to work between 7:00 and 8:00 A.M., but this is not a norm.A norm governs sociallysalient behavior, deviation from which makes you socially abnormal.4
Life is filled with, constituted by, and defined in relation to such norms—some ofwhich are valuable, and many of which are not. It is a norm (and a good one) to thankothers for service. Not thanking someone makes you “rude,” and being rude opens you
up to a range of social sanctions, from ostracism to criticism. It is a norm to speak cautiously to a seatmate on an airplane, or to stay to the right while driving slowly. Norms
discourage men from wearing dresses to work and encourage all of us to bathe regularly.
Ordinary life is filled with such commands about how we are to behave. For the ordinarily socialized person, these commands constitute a significant portion of the constraints on individual behavior.

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What makes norms different, then, is the mechanism and source of their sanction:
they are imposed by a community, not a state. They are similar to law in that,at least objectively, their constraint is imposed after a violation has o ccurred.
The constraints of the market are different again. The market constrains throughprice. A price signals the point at which a resource can be transferred from one person
to another. If you want a Starbucks coffee, you must give the clerk two dollars. The constraint (the two dollars) is simultaneous with the benefit you want (the coffee). You may,of course, bargain to pay for the benefit later (“I’d gladly pay you Tuesday for a hamburger today”), but the obligation is incurred at the time you receive the benefit. To theextent that you stay in the market, this simultaneity is preserved. The market constraint,
then,unlike law and norms, does not kick in after you have taken the benefit you seek;itkicks in at the same time.
This is not to say that market transactions cannot be translated into law or norm
transactions. Indeed,market transactions do not exist except within a context of law andnorms. You must pay for your coffee; if you do not,the law of theft applies. Nothing in
the market requires that you tip the waiter, but if you do not, norms kick in to regulate
your stinginess. The constraints of the market exist because of an elaborate backgroundof law and norms defining what is buyable and sellable,as well as rules of property andcontract for how things may be bought and sold. But g iven these laws and norms, themarket still constrains in a distinct way.
The constraint of our final modality is neither so contingent nor, in its full range, so
dependent. This is the constraint of architecture—the way the world is, or the ways specific aspects of it are. Architects call it the built 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 sense of “architecture”) and some are not.A door closes off a room. When locked,thedoor keeps you out. The constraint functions not as law or norms do—you cannot ignore the constraint and suffer the consequence later. Even if the constraint imposed by
the door is one you can overcome—by breaking it down perhaps, or picking the lock—the door still constrains, just not absolutely.
Some architectural constraints,however, are absolute.Star Trek notwithstanding, wecannot travel at warp speed. We can no doubt travel fast,and technology has enabled us
to travel faster than we used to. Nonetheless, we have good reason (or at least physicistsdo) for believing that there is a limit to the speed at which we can travel. As an old Tshirt put it,“186,282 miles per second. It’s not just a good idea. It’s the law.”
But whether absolute or not, or whether man-made or not, we can consider these
constraints as a single class—as the constraints of architecture, or real-space code. What
unites this class is the agency of the constraint: no individual or group imposes the constraint, or at least not directly. Individuals are no doubt ultimately responsible for muchof the constraint, but in its actual execution the constraint takes care of itself.Laws needpolice, prosecutors, and courts to have an effect; a lock does not. Norms require that individuals take note of nonconforming behavior and respond accordingly; gravity doesnot. The constraints of architecture are self-executing in a way that the constraints oflaw, norms,and the market are not.
This feature of architecture—self-execution—is extremely important for understanding its role in regulation. It is particularly important for unseemly or unjust regulation. For example, to the extent that we can bring about effects through the automaticappendix

237

constraints of real-space code, we need not depend on the continued agency, loyalty, or
reliability of individuals. If we can make the machine do it, we can be that much more
confident that the unseemly will be done.
The launching of nuclear missiles is a nice example. In their original design,missiles
were to be launched by individual crews located within missile launch silos. These men
would have been ordered to launch their missiles, and the expectation was that theywould do so. 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 the decision to launch was che cked by a judgment made by an individual, and always that individual had to decide whether the order was to be obeyed. Plainly this system is lessreliable than a system where all the missiles are wired,as it were, to a single button on thepresident’s desk. But we might believe that there is value in this second check, that theagency of the action by the soldier ensures some che ck on the decision to launch.6
This is an important consequence of the automatic nature of the constraints of architecture. Law, norms, and the market are constraints checked by judgment. They areenacted only when some person or group chooses to do so. But once instituted, architectural constraints have their effect until someone stops them.
Agency, then, is one distinction between the four constraints. The temporality of theconstraint—when it is imposed—is a second one.
Here I should distinguish between two different perspectives: that of someone observing when a constraint is imposed (the objective perspective), and that of the person
who experiences the constraint (the subjective perspective). So far my description of thefour constraints in this single model has been from the objective perspective. From thatperspective they are quite different, but from a subjective perspective they need not differ at all.
From the objective perspective the difference is between constraints that demand
payment up front and constraints that let you play and then pay. Architecture and themarket constrain up front; law and norms let you play first. For example, think of theconstraints blocking your access to the air-conditioned home of a neighbor who is gone
for the weekend. Law constrains you—if you break in, you will be trespassing. Norms
constrain you as well—it’s unneighborly to break into your neighbor’s house. Both ofthese constraints, however, would be imposed on you after you broke into the house.
They are prices you might ha ve to pay lat er.7 The architectural constraint is the lock on
the door—it blocks you as you are trying to enter the house. The market constrains yourownership of an air conditioner in the same way—it demands money before it will g ive
you one. From an objective perspective what distinguishes these two classes of constraints is their temporality—when the sanction is imposed.
From a subjective perspective, however, all these differences may disappear. Subjectively, you may well feel a norm constraint long before you violate it. You may feel theconstraint against breaking into your neighbor’s house just at the thought of doing so.
Whatever the temporality of the constraint from an objective perspective, you may experience the constraint differently. A constraint may be objectively ex post, but experienced subjectively ex ante.
The point is not limited to norms. Think about a child and fire. Fire is a bit of realspace code: the consequences are f elt as soon as the constraint it imposes is violated. A
child learns this the first time he puts his hand near a flame. Thereafter, the child inter-

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nalizes the constraint of fire before putting his hand in a fire. Burned once, the childknows not to put his hand so near the flame a second time.8
We can describe this change as the development of a subjective constraint on thechild’s behavior. We can then see how the idea extends to other constraints. Think about
the stock market. For those who do not shop very much, the constraints of the market
may indeed be only the objective constraint of the price demanded when they make apurchase. However, for those who experience the market regularly—who have,as it were,a sense of the market—the constraints of the market are quite different. Such people
come to know them as second nature, which guides or constrains their actions. Think ofa stockbroker on the floor of an exchange. To be a great broker in that context is to cometo know the market “like the back of your hand,” to let it become second nature. In theterms that we’ve used,this broker has let the market become subjectively part of who sheis.
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 particular way is usually sufficient to make it a subjective constraint. (It is not the objective threat of jail that constrains me from cheating on my taxes; instead,I have made subjective the constraints of
the law with 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 constraints are subjectively effective prior to their actions. They feel the constraints of real-space code, oflaw, of norms,and of the market, before they act. For the completely immature, or totallyalienated, few objective constraints are subjectively effective. They step in the mud andonly then learn about the constraint of mud; they steal bread and only then learn about
the punishments of the law; they show up at a wedding in cut-offs and only then learn
about the scorn of their friends;they spend all their money on candy and only then learnof the constraint of market scarcity. These two types mark out the extremes; most of us
are somewhere in between.
The more subjective a constraint,then,the more effective it is in regulating behavior.
It takes work to make a constraint subjective. An individual must choose to make it apart of who he or she is. To the extent that the norm is made subjective, it constrains simultaneously with the behavior it regulates.
This points to one final distinction between law and norms, on the one hand, andreal-space code, on the other. Law and norms are more efficient the more subjective they
are, but they need some minimal subjectivity to be effective 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 is not the case with architecture. Architecture can constrain without any subjectivity. A lock constrains the thief whether or not the thief knows that it is a lock blocking the door. The distance between two places constrains the intercourse between those
two places whether or not anyone in those places understands that constraint. This pointis a corollary of the point about agency: just as a constraint need not be imposed by anagent,neither does the subject need to understand it.
Architectural constraints, then, work whether or not the subject knows they are
working, while law and norms work only if the subject knows something about them. If
the subject has internalized them,they can constrain whether or not the expected cost ofcomplying exceeds the benefit of deviating. Law and norms can be made more codelike

appendix239

the more they are internalized. But internalization takes work.
Though I have used language invoking architects, my language is not the language ofarchitects. It is instead stolen, and bent. I am not a scholar of architecture, but I havetaken from architecture its insight about the relationship between the built environment
and the practices that environment creates. 10 Neither architects nor I take this relationship to be determinative. Structure X does not determine behavior Y. Instead, these
forms are always simply influences that can change, and when they are changed, theychange the affected 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
42ºN Latitude suggests each feature of the model I am describing, including the ambiguity between law and architecture (building codes) and the constitution the two enable.
Whatever the source of the content of these codes, he writes, “their consequences arebuilt.”11 This is the feature 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—then we
will see how liberty is constructed not simply through the limits we place on law. Rather,liberty is constructed by structures that preserve a space for individual choice,howeverthat 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 withthis power. And,more important, what not to do.

N O T E S

P R E F A C E

1. See http://mit.edu/cfp6.

C H A P T E R

O N E

1. Paulina Borsook,“How Anarchy Works,” Wired 110 (October 1995):3.10, available online at http://www.wired.com/wired/archive/3.10/ietf.html (visited May 30, 1999), quoting
Netlander, David Clark.
2. James B oyle, talk at Telecommunications Policy Research Conference (TPRC), Washington, D.C., September 28, 1997. David Shenk discusses the libertarianism that cyberspaceinspires (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.
3. See Kevin Kelley, Out of Control: The New Biology o f Machines, Social Systems, and theEconomic World (Reading, Mass.: Addison-Wesley, 1994),119.
4. As Stephen Holmes has put it, “Rights depend upon the competent exercise of . . . legitimate public power. . . . The largest and most reliable human rights organization is the liberal state. . . . Unless society is political ly well organized,there will be no individual liberties
and no civil society”; “What Russia Teaches Us Now: How Weak States Threaten Freedom,”
American Prospect 33 (1997): 30,33.
5. This is a dark picture, I confess,and it contrasts with the picture of control drawn by
Andrew Shapiro in The Control Revolution (New York: Public Affairs,1999). As I discuss later,
however, the difference between Shapiro’s view and my o wn turns on the ext ent to which architectures enable top-down regulation. In my view, one highly probable architecture would
enable greater regulation than Shapiro believes is likely.
6. See “We Know Where You Will Live,” Computers, Freedom, and Privacy Conference,
March 30,1996,audio link available at http://www-swiss.ai.mit.edu/~switz/cfp96/#audio.
7. 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 themetaphor from others as well. Ethan Katsh discusses this notion of software worlds in “Software
Worlds and the First Amendment: Virtual Doorkeepers in Cyberspace,” University of Chicago Le gal Forum (1996): 335,338. 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. I have been especially influenced by James Boyle’s work in the area.

notes242

I discuss his book in chapter 9, but see also “Foucault in Cyberspace: Surveillance, Sovereignty,
and Hardwired Censors,” University of Cincinnati Law Review 66 (1997): 177. For a recent andpowerful use of the idea, see Shapiro, The Control Revolution. Mitch Kapor is the father of thememe “architecture is politics” within cyberspace talk. I am indebted to him for this.
8. Mark Stefik, “Epilogue: Choices and Dreams,” in Internet Dreams: Archetypes, Myths,
and Metaphors, edited by Mark Stefik (Cambridge, Mass.:MIT Press,1996),390.
9. Missouri v Holland, 252 US 416,433 (1920).
10. 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),416–17.

C H A P T E R

T W O

1. See, for example,Stanley Fish, Doing What Comes Naturally (Durham,N.C.: Duke University Press, 1989), ch.17.
2. It is also hypothetical. I have constructed this story in light of what could be, and inplaces is. But I’m a law professor; I make up hypotheticals for a living.
3. One gets a good sense of the possibilities in this space from a how-to manual; one of
my favorites is Bruce Damer’s Avatars! (Berkeley, Calif.: Peachpit Press, 1998). The range ofexperiences and the possibilities outlined by Damer don’t yet match the hypothetical I havebased this section on, but any difference is just a matter of coding.
4. “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 & Schuster,1995), is still a classic. See also Elizabeth Reid,“Hierarchy and Power: Social Control in Cyberspace,” in Communities in Cyberspace, edited by Marc A. Smith and Peter Kollock (NewYork: Routledge, 1999), 107. The father—or god—of a MUD named LamdaMOO is Pavel
Curtis. See his account in “Mudding: Social Phenomena in Text-Based Virtual Realities,” inStefik, Internet Dreams, 265–92. For two magical pages of links about the history of MUDs,
see Lauren P. Burka, “The MUDline,” available at http://www.apocalypse.org/pub/u/lpb/muddex/mudline.html (visited May 30, 1999); and Lauren P. Burka, “The MUDdex,” available at
http://www.apocalypse.org/pub/u/lpb/muddex/ (visited May 30,1999).
5. A pareto superior move requires that at least one person be made better off and that noone be made worse off. See Robert Cooter and Thomas Ulen, Law and Economics, 2d ed.
(Reading, Mass.: Addison-Wesley, 1997),12,41–42.
6. Jake Baker’s given name was Abraham Jacob Alkhabaz, but he changed his name after
his parents’ divorce. See Peter H. Lewis, “Writer Arrested After Sending Violent Fiction OverInternet,” New York Times, February 11,1995, 10.
7. The seven are comp, misc,news, rec,sci, soc,and talk. See Henry Edward Hardy, “TheHistory of the Net, v8.5,” September 28, 1993, available at http://www.grin.net/~ctu rl ey /gsezine/GS.WorldView/*HISTORY.OF.THE.NET/ (visited May 30,1999).
8. I have drawn from Jonathan Wallace and Mark Mangan’s vivid account in Sex, Laws,
and Cyberspace (New York:M&T Books,1996),63,though more interesting variations on thisstory circulate on the Net (I’m playing it safe).
9. See United States v Baker, 890 FSupp 1375, 1390 (EDMich 1995); see also Wallace andMangan, Sex, Laws, and Cyberspace, 69–77.
10. See Mike Godwin, CyberRights: Defending Free S peech in the Digital Age (New York:Times Books, 1998),117–32.
11. No doubt the worm would interact with the operation of the machine,as it would interact with, for example,the operating system at least.

notes243

12. My example is drawn from Michael Adler, “Cyberspace,General Searches, and Digital
Contraband: The Fourth Amendment and the Net-Wide Search,” Yale Law Journal 105(1996): 1093; cf. Laura B. Riley, “Concealed Weapon Detectors and the Fourth Amendment:
The Constitutionality of Remote Sense Enhanced Searches,” UCLA Law Review 45 (1997):
281, 325–27. Adler’s example provides a nice para ll el to Arnold H. Loewy, “The Fourth
Amendment as a Device for Protecting the Innocent,” Michigan Law Review 81 (1983): 1229,
1244—though they reach opposite conclusions.
13. See William J. Stuntz, “The Substantive Origins of Criminal Procedure,” Yale Law Jour nal 105 (1995): 393,406–7.
14. See, for example, Thomas A. Clancy, “The Role of Individualized Suspicion in Assessing the Reasonableness of Searches and Seizures,” University of Memphis Law Review 25(1995):483,632.“Individualized suspicion . . . has served as a bedrock protection against unjustified and arbitrary police actions.”
15. See United States v Place, 462 US 696,707 (1983).
16. James Boyle, Shamans, Software, and Spleens: Law and the Construction of the Infor mation Society (Cambridge, Mass.: Harvard University Press,1996),4.
17. See Susan Freiwald,“Uncertain Privacy: Communication Attributes After the Digital
Telephony Act,” Southern California Law Review 69 (1996): 949,951, 954.
18. 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.
19. See Mitchell Kapor, “The Software Design Manifesto,” available at http://
www.kei.com/homepages/mkapor/Software_Design_Manifesto.html (visited May 30, 1999);
David Farber, “A Note on the Politics of Privacy and Infrastructure,” November 20, 1993,
available at http://icg.pobox.com/cis590/reading.045.txt (visited May 30, 1999); “Quotations,” available at http://www.cs.yorku.ca/~peter/4361/quotes.html (visited May 30, 1999);
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 insome deeper sense political”; see Interface Culture: How New Technology Transforms the Way
We Create and Communicate (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 “architecture is policy.” I prefer the original.
20. See Steve Silberman, “We’re Teen, We’re Queer, and We’ve Got E-Mail,” Wired (November 1994): 76, 78, 80, reprinted in Composing Cyberspace: Id en ti ty, Community, andKnowledge in the Electronic Age, edited by Richard Holeton (Boston: McGraw-Hill,1998),116.
21. Cf. United States v Lamb, 945 FSupp 441 (NDNY 1996).
22. 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 theConstitution as Spoken,” Yale Law Journal 104 (1995): 1119, 1122; and “On Fidelity in Constitutional Law,” Fordham Law Review 65 (1997): 1469.
23. See Minnesota v Dickerson, 508 US 366, 380 (1993) (Justice Antonin Scalia concurring:“I frankly doubt . . . whether the fi ercely proud men who adopted our Fourth Amendment would have allowed themselves to be subjected, on mere suspicion of being armed anddangerous, to such indignity. . . . ”).

C H A P T E R

T H R E E

1. My use of the term “architecture” is somewhat idiosyncratic, but not completely. I use it
in the sense spoken of by Charles Morris and Charles Ferguson in “How Architecture Wins

notes244

Technology Wars,” Harvard Business Review (March-April 1993): 86. My usage is not quite theusage of computer scientists, except in the sense of a “structure of a system”; see the definitionof architecture in Pete Loshin, TCP/IP Clearly Explained, 2d ed.(Boston: AP Professional,1997).
2. J. C. Herz, Surfing on the Internet: A Nethead’s Adventures On-Line (Boston: Little,
Brown,1995),2–3.
3. This account of Chicago’s network design may well be dated. I can verify its accuracy
only up to 1996.
4. The University of Chicago is a private university, so on its own force, the First Amendment would not constrain it. That distinguishes it from a public university, such as the University of California.
5. See Helen Nissenbaum, “Values in the Design of Computer Systems,” Computers andSociety (March 1998): 38.
6. For an extremely readable description,see Loshin, TCP/IP Clearly Explained, 15–23;seealso Craig Hunt, TCP/IP Network Administration, 2d ed.(Sebastopol, Calif.: O’Reilly & Associates, 1998),8–22; Trust in Cyberspace, edited by Fred B. Schneider (Washington, D.C.: National Academy Press,1999),29–36.
7. Peter Steiner, cartoon, New Yorker, July 5,1993,61.
8. See Nicholas Negroponte, Being Digital (New York: Alfred A. Knopf,1995),18,179–80.
9. This was the hope, as Justice Sandra Day O’Connor saw it, of the Communications Decency
Act (CDA) of 1996. See Reno v American Civil Liberties Union, 117 SCt 2329, 2351–57 (1997) (Justice Sandra Day O’Connor concurring in part and dissenting in part). Its objective, in her view,
was to require the use of technologies that would make it feasible to zone kids out of parts of the
Net where pornography was present. While O’Connor thought the CDA unconstitutional, shesuggested that another statute, more narrowly tailored, would pass constitutional review; see
Lawrence Lessig, “Reading the Constitution in Cyberspace,” Emory Law Journal 45 (1996): 869,
883–95;Lawrence Lessig, “The Zones of Cyberspace,” Stanford Law Review 48 (1996): 1403.
10. In some contexts we call a network architecture that solves some o f these “imperfections”—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
computing—the open system of the Internet, based on TCP/IP, and the control-based capability of traditional proprietary networks layered onto the Internet. Intranets mix values fromeach to produce a network that is interoperable but gives its controller more control over ac cess than anyone would have over the Internet. My argument in this book is that an “internet”
with control is what our Internet is becoming. According to the reporter Steve Lohr(“Netscape Taking on Lotus with New Corporate System,” New York Times, October 16,1996,
D2),“Netscape executives pointed to studies projecting that the int ranet market will grow to$10 billion by 2000.” Lohr had also reported (“Internet Future at IBM Looks Oddly Familiar,”
New York Times, September 2,1996,37) that “investment in the United States in intranet software for servers,the powerful computers that store network data, would increase to $6.1 billion by 2000 from $400 million this year. By contrast, Internet server software investment is
projected to rise to $2.2 billion by 2000 from $550 million.”C H A P T E R

F O U R

1. Though I do think it is necessarily the case that how commerce is architected affects fundamental values. In this, I agree with David Chaum, who argued early on that payment systems
would be crucial for “achieving electronic privacy”;see, for example, “Achieving Electronic Privacy,” Science (August 1992): 96, 96–97, available at http://ganges.cs.tcd.ie/mepeirce/Project/
Chaum/sciam.html (visited May 30, 1999). Payment systems are crucial, and they can be crucially different.

notes245

2. As in United States v O’Brien, 391 US 367 (1968), in which the Court upheld a statutethat made burning a draft card a crime. The state interest was in preserving a usable credential.
3. See Ed Krol, The Whole Internet: User’s Guided Catalogue (Sebastopol, Calif.: O’Reilly &Associates, 1992), 23–25; Loshin, TCP/IP Clearly Explained, 3–83; Hunt, TCP/IP, 1–22; seealso Ben M. Segal, “A Short History of Internet Protocols at CERN,” available at
http://wwwinfo.cern.ch/pdp/ns/ben/TCPHIST.html (visited May 30,1999).
4. 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.
5. By “layering” I don’t mean that such architectures would change the basic TCP/IP protocol suite. The changes I am describing here are within the application space—not the application layer—of Internet applications.I define “application space” in chapter 8.
6. There is also the disadvantage of securing the password, especially if the password istransmitted as plain text.I am simplifying brutally in my consideration of that issue here.
7. For a description of the privacy and security threats posed by cookies (“essentially nonexisten t” ) ,s ee U.S. Department of Energy, “Computer Incident Advisory Capability,” Information
Bulletin, I–034: Internet Cookies, available at http://www.ciac.org/ciac/bulletins/i–034.shtml(visited May 30, 1999); see also Carl W. Chamberlin, “To the Millennium: Emerging Issues for
the Year 2000 and Cyberspace,” Notre Dame Journal of Law, Ethics, and Public Policy 13 (1999):
1 3 1 ,1 7 3 ;“ Developments in the Law—The Law of Cyberspace :I V. Internet Regulation ThroughArchitectural Modification: The Property Rule Structure of Code Solutions,” Harvard Law Re view 112 (1999): 1634, 1644, n.57; Neil Randall, “How Cookies Work,” PC Magazine Online,
available at http://www.zdnet.com/pcmag/features/cookie/cks1.htm (visited May 30, 1999).
8. Any security problem comes not from the cookies directly (since they are simply passivedata) but from applets (smaller applications) that might misuse the data collected .D avid Wille,in “Personal Jurisdiction and the Internet: Proposed Limits on State Jurisdiction over Data
Communications in Tort Cases” (Kentucky Law Journal 87 [1999]: 95,198–99), describes the security dangers with cookies. For a second description of the possible risks from cookies, see
Jerry Kang, “Information Privacy in Cyberspace Transactions,” Stanford Law Review 50 (1998):
1193,1227–29.
9. Stewart A. Baker and Paul R. Hurst, The Limits of Trust: Cryptography, Governments,
and Electronic Commerce (Boston: Kluwer Law International,1998),xv.
10. Ibid.
11. See Hal Abelson et al., “The Risks of Key Recovery, Key Escrow, and Trusted ThirdParty Encryption,” World Wide Web Journal 2 (1997): 241, 245: “Although cryptography has
traditionally been associated with confidentiality, other cr yptographic mechanisms, such as
authentication codes and digital signatures,can assure that messages have not been tamperedwith or forged.”
12. Whitfield Diffie and Martin E. Hell m a n ,“ New Directions in Cryptography,” IEEE
Transactions on In fo rm a tion Theory IT–22 (November 1976): 644–54. The idea had apparently been discovered earlier by James Ellis at the British Government Communication
Headquarters, but it was not then published; see Baker and Hu rs t , The Limits of Trust,xvii.
13. A symmetric key algorithm is an encryption routine that requires the same key to encrypt and decrypt a message. An asymmetric key algorithm is one that uses a diff erent key toencrypt and decrypt.
14. There are other issues as well;see Bruce Schneier, Applied Cryptography: Protocols, Al gorithms,and Source Code in C, 2d ed.(New York: Wiley, 1996),4–5; Conference, “The Development and Practice of Law in the Age of the Internet,” American University Law Review 46(1996): 327.

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15. For a comprehensive analysis of the legal issues surrounding PKI,see “Public Key Infrastructure Symposium,” Jurimetrics Journal 38 (1998): 241.
16. “Digital ID Center,” available at http://www.verisign.com/products/individual/index.html (visited May 30,1999).
17. As Baker and Hurst point out, certifications supporting the secure electronic transaction (SET) protocol are not identity certificates; The Limits of Trust, 252–53.
18. See A. Michael Froom k i n ,“ F l ood Control on the Information Ocean: Living with
Anonymity, Digital Cash,and Distributed Databases,” Journal of Law and Communication 15(1996): 395,505.
19. See Gail L. Grant, Understanding Digital Signatures: Establishing Trust over the Internet
and Other Networks (New York: McGraw-Hill,1998),5.
20. Jane Kaufman Winn, “Open Systems, Free Markets,and Regulation of Internet Commerce,” Tulane Law Review 72 (1998): 1177,1238.
21. Once again, of course, even that idea is not new. Telephones have been used to sellthings since the birth of phones; they too are an open and insecure network. The same wastrue of telegraphs before them; see Tom Standage, The Victorian Internet (New York: Walker& Co.,1998).
22. See Mark A. Lemley and David McGowan,“Legal Implications of Network Economic
Effects,” California Law Review 86 (1998): 479,484, 552–53.
23. See Richard E. Smith, Internet Cryptography (Reading, Mass.: Addison-Wesley, 1997),
218–28.
24. Winn (“Open Systems,” 1210) reports that the SET “protocol developed by Visa and MasterCard [is] currently being marketed . . . as a secure Internet application for any type of bank or
credit card.” See also the introduction to the concept of “secure electronic commerce” on the Visa
web site at http://www.visa.com/cgi-bin/vee/nt/ecomm/main.html (visited May 30, 1999).
25. See Winn, “Open Systems,” 1210–11.
26. See C. Bradford Biddle,“Legislating Market Winners: Digital Signature Laws and theElectronic Commerce Marketplace,” San Diego Law Review 34 (1997): 1225,1242,n.37.
27. See Grant, Understanding Digital Signatures, 14;see also Smith, Internet Cryptography,
295–319.
28. See Richard L.Field,“1996: Survey of the Year’s Developments in Electronic Cash Law
and the Laws Affecting Electronic Banking in the United States,” American University Law Re view 46 (1997): 967, 988 (discussing a federal PKI steering committee to “coordinate efforts
by executive agencies to use public key digital signature technology”); see also Baker and
Hurst, The Limits of Trust, 275–83.
29. See Donna N. Lampert et al., “Overview of Internet Legal and Regulatory Issues,”
Practicing Law Institute/Patents, Copyrights, Trademarks, and Literary Property 544 (1998):
179,220; see also Grant, Understanding Digital Signatures, 66–93.
30. In the United States mandated IDs are extremely rare. It was not until the late 1950s thatcitizens returning from abroad were required to carry a passport ;s ee David Brin, The Transpar ent Society: Will Technology Force Us to Choose Between Privacy and Freedom? (Cambridge,
Mass.: Perseus Boo k s ,1 9 9 8 ) ,6 8 .
31. There are many digital certificate vendors serving as certificate authorities. The morewell-known include VeriSign (www.verisign.com), Thawte (www.thawte.com), GTE’s CyberTrust (www.cybertrust.gte.com), Entrust (www. en trust.com), Fron ti er Technologies(www.frontiertech.com), and Xcert (www.xcert.com). Some are tailored to a particular industry, such as TradeWave (www.tradewave.com),and some are region-specific, such as KeyWitness (www.key wi tness.ca) in Canada and BelSign International (www.bel s i gn . be) in
Europe. Network Solutions has teamed up with VeriSign so that anyone who registers his or
her domain name has an option to obtain a digital server certificate from VeriSign; see “Our

notes247

Partners,” available at http://www.netsol.com/partners/ (visited May 30,1999). For a more exhaustive list of certificate authorities, see “The PKI Pa ge ,” available at http://www.
pca.dfn.de/eng/team/ske/pem-dok (visited May 30,1999).

C H A P T E R

5

1. See generally Trust in Cyberspace, edited by Fred B. Schneider (Washington, D.C.: National Academy Press, 1999),27–29.
2. See Katie Hafner and Matthew Lyon, Where Wizards Stay Up Late: The Origins of the In ternet (New York: Simon & Schuster, 1996),62–63.
3. Communications Assistance for Law Enforcement Act, Public Law 103–414, 108 Stat
4279,47 USC § 1001 et seq., and in scattered sections of 18 USC.
4. 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; cf. William J. Stuntz,“The Uneasy Relationship Between Criminal Procedure and Criminal Justice,” Yale Law Jour nal 107 (1997): 1,4.
5. “Without such limits, the government’s natural incentive is to evade or exploit the procedural civil-criminal line by changing the substantive civil-criminal line”; Stuntz’s point, madeearlier, is about overcriminalization, not increased punishments; see William J. Stuntz, “Substance, Process, and the Civil-Criminal Line,” Journal of Contemporary Legal Issues 7 (1996): 1.
6. From an economic perspective, this kind of regulation makes sense if it is the cheapest
means to a social end. Obviously, if the government simply mandated this change in architecture, it would be inexpensive for the government. What is interesting about the act is its mandate that the government pay for the change in architecture. The government is thusinternalizing the costs of change, and we might think about this as a useful technique to ensurethat social value is increased by this type of regulatory technique. Put another way: the government is “taking” the regulatory power of the telephone network’s code, and as is generally true
with takings, it might make sense to require that this taking be funded by the government.
7. As of this writing, the proposals are still being reviewed; see John Hanchette, “‘Big
Brother’ Going Too Far?: Privacy Rights Eroding, Critics Say,” Florida Today, February 15,
1999,10A, available at 1999 WL 7000142.
8. See Center for Democracy and Technology, “FBI Seeks to Impose Surveillance Mandates on Telephone System; Balanced Objectives of 1994 Law Frustrated: Status Report,”
March 4,1999, available at http://www.cdt.org/digi_tele/status.html (visited May 30,1999).
9. For a good description of the Audio Home Recording Act of 1992, see Christine C.
Carlisle,“Recent Development: The Audio Home Recording Act of 1992,” Journal of Intellec tual Property Law 1 (1994):335,336–38. For an analysis of the act and its effect on copyright,
see Joel L. McKuin, “Home Audio Taping of Copyri gh ted Works and the Audio Home
Recording Act of 1992:A Critical Analysis,” Hastings Communications and Entertainment Law
Journal 16 (1994):311.
10. See Audio Home Recording Act, 17 USC § 1002 (1994) (requiring the serial copy
management system); see also U.S. Department of Commerce, Intellectual Property and the
National Information Infrastructure: Report of the Working Group on Intellectual Property
Rights (Washington, D.C.: Information Infrastructure Task Force,1995), 179,189–90.
11. See 47 CFR § 15.120;see also Telecommunications Act of 1996 Pub.L.104–104,§ 551,
110 Stat. 56, 139–42 (1996), 47 USC § 303 (1998) (providing for study and implementationof video blocking devices and rating systems).
12. For a review of the evidence considered, see U.S. Senate Committee on Commerce,
Subcommittee on Communications, Hearings on Violence on Television, 93d C ong., 2d sess.

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notes

(1974); U.S. Senate Committee on Commerce, Subcommittee on Communications, Hearings
in Review of Policy Matters of Federal Communications Commission and Inquiry into Crime andViolence on Television and a Proposed Study Thereof by the Surgeon General, 91st Cong., 1stsess., pt. 2 (1969); see also Surgeon General’s Scientific Advisory Committee on Television
and Social Behavior, Television and Growing Up: The Impact of Televised Violence: Report to theSurgeon General (Washington, D.C.: U.S. Government Printing Office, 1972); Matthew L.
Spitzer, Seven Dirty Words and Six Other Stories (New Haven, Conn.: Yale University Press,
1986), 95–118; Television and Social Behavior: Media Content and Cont rol, edited by George
Comstock and Eli A. Rubinstein (1972); George Comstock, “Television and American Social
Institutions,” in Children and Television, 3d ed., edited by John C. Wright and Aletha C. Huston (1983),27;George Comstock, “Violence in Television Content: An Overview,” in National
Institute of Mental Health: Television and Behavior: Scientific Progress and Implications for the
Eighties: Technical Reviews 2 (1982),110; Harry T. Edwards and Mitchell N. Berman,“Regulating Violence on Television,” Northwestern University Law Review 89 (1995): 1487,1535; E.
Barrett Prettyman Jr. and Lisa A. Hook, “The Control Of Media-Related Imitative Violence,”
Federal Communications Law Journal 38 (1987):317.
13. See Red Lion Broadcasting Company v Federal Communications Commission, 395 US
367 (1969) (ruling that the FCC’s orders requiring radio stations to provide time for responseto personal attack do not violate the First Amendment); see also Turner Broadcasting System,
Inc., v Federal Communications Commission, 512 US 622,637–38 (1994). But see Denver Area
Educational Telecommunications Consortium, Inc.v Federal Communications Commission, 518
US 727 (1996) (ruling that provisions permitting cable operator to filter content on leased access channels are consistent with First Amendment, but that similar provisions with regard to
public access channels are not).
14. Increasingly the opinion is that the rationale behind Red Lion (scarcity of spectrum
justifies certain regulation) is no longer valid;see Roxana Wizorek, “Children’s Television: The
FCC’s Attempt to Educate America’s Children May Force the Supreme Court to Reconsider
the Red Lion Rationale,” Catholic University Law Review 47 (1997): 153, 182–86; but see Laurence H. Winer, “The Red Lion of Cable, and Beyond?–Turner Broadcasting v FCC,” Cardozo
Arts and Entertainment Law Journal 15 (1997): 1, 21–25 (arguing Turner may revive gatekeeper aspect of Red Lion).
15. The consequence of an efficient v-chip on most televisions would be the removal of thestandard justification for regulating content on broadcasting. If users can self-filter, then the
FCC need not do it for them ;s ee Peter Huber, Law and Disorder in Cyberspace: Abolish the FCC
and Let Common Law Rule the Telecosm (New York: Oxford University Press,1997),172–73.
16. For a good discussion of the Clipper controversy, see Laura J. Gurak, Persuasion and Pri vacy in Cyberspace: The Online Protests over Lotus Marketplace and the Clipper Chip (New Haven,Conn.: Yale University Press,1997),32–43. For a sample of various views ,s ee Kirsten Scheurer,“The Clipper Chip: Cryptography Technology and the Constitution,” Rutgers Computer andTechnology Law Journal 21 (1995): 263;cf. Howard S. Dakoff, “The Clipper Chip Proposal: Deciphering the Unfounded Fears That Are Wrongfully Derailing Its Implementation,” John Marshall
Law Review 29 (1996): 475. “Clipper was adopted as a federal information-processing standard
for voice communication” in 1994; see Gurak, Persuasion And Privacy in Cyberspace, 125.
17. See Electronic Frontier Foundation (EFF), Cracking DES: Secrets of Encryption Research,
Wiretap Politics, and Chip Design (Sebastopol, Calif.:Electronic Frontier Foundation,1998), ch .1 .
18. 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, andthe Constitution,” University of Pennsylvania Law Review 143 (1995):709,752–59. For a more
technical discussion, see Bruce Schneier, Applied Cryptography: Protocols, Algorithms, andSource Code in C, 2d ed.(New York: Wiley, 1996): 591–93.

notes249

19. See Field,“1996: Survey of the Year’s Developments in Electronic Cash Law . . . ,” 967,
993,n.192.
20. See A. Michael Froomkin, “It Came from Planet Clipper: The Battle over Cryptographic Key ‘Escrow,’” University of Chicago Legal Forum 1996 (1996): 15,32.
21. This was the purpose of the proposed Oxley-Manton Amendment to the Security andFreedom Through Encryption (SAFE) Act of 1997,NR 695,105th Cong., 1st sess. Baker and
Hurst (The Limits of Trust, 21–22) note that “1997 saw remarkable change in the nature of theencryption debate. The beginning of the legislative session saw industry pushing for export
liberalization and the closing weeks saw industry defending against domestic controls.”In
1996 the government implemented a policy to allow fi rms to export encryption technologies
using the government’s DES (digital encryption standard) so long as a key recovery system isbuilt in; see EFF, Cracking DES, 1–4–1–5. As EFF’s “Cracking DES” project makes clear, however, DES is an unreliable encryption standard.There was some hope for the government’s encryption policy after the 1996 publication of the National Research Council’s report, theproduct of a committee appointed by the NRC to study national cryptography policy. The
committee, chaired by Uni versity o f Chicago Law Professor Kenneth Dam, was made up ofmajor leaders in both the industrial and research sectors. The report’s conclusions wereclear—and damning for the government’s anti-encryption policy. The report argued strongly
for liberalization of encryption regulations; see Cryptography’s Role in Securing the Informa tion Society, edited by Kenneth W. Dam and Herbert S. Lin (Washington, D.C.: National
Academy Press,1996). Some believed that the report would have a significant effect, but there
were doubts early on. As Froomkin says (“It Came from Planet Clipper,” 69),the battle is far
from over.
22. This is one reading of the decision in Bernstein v U.S. Department of Justice, 176 F3d1132 (9th Cir 1999). There were dissents from the view of the rights of programmers (Judge
Thomas Nelson:“I am still inevitably led to conclude that encryption source code is more like
conduct than speech”). See also Laura M.Pilkington,“First and Fifth Amendment Challenges
to Export Controls on Encr yption: Bernstein and Karn,” Santa Clara Law Review 37 (1996):
159,210; Thinh Nguyen, “Cryptography, Export Controls,and the First Amendment in Bern stein v U.S. Department of Justice,” Harvard Journal of Law and Technology 10 (1997): 667,
677–78; in “Cryptic Controversy: U.S. Government Restrictions on Cryptography Exports
and the Plight of Philip Zimmermann,” Georgia State University Law Review 13 (1997): 581,
603). Ronald J. Stay claims that the right to speak cryptographically is supported as much as
the right to speak Navajo.
23. The idea was suggested in the Clinton administration’s 1995 White Paper; see Pamela
Samuelson,“Regulation of Technologies to Protect Copyrighted Works,” Communications of
the ACM [Association for Computing Machinery] 39 (1996): 17.
24. Digital Millennium Copyright Act, Public Law 105–304,112 Stat 2860 (1998).
25. 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 f or Gun O wners, National Identification Card,” Washington Post, June 29, 1989, A41. The Immigration Reformand 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, theissuance 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 protection.
26. Notice that this would be an effective end-run around the protections that the Cour trecognized 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

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notes

these activities could require IDs before access to these activities would be permitted. To theextent 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., The New Wealth of Nations: Taxing Cyberspace (Toronto: Between the Lines,
1997). Their arguments are compelling from the perspective of social justice and economics,
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 anything.
28. Countries with such a requirement include Argentina, Australia, Belgium, Greece,
Italy, and Switzerland; see Richard L. Hasen,“Law, Economics, and Norms: Voting Without
Law?” University of Pennsylvania Law Review 144 (1996): 2135.
29. See Baker and Hurst, The Limits of Trust, 255–73.
30. See the description in Scott B radner, “The Internet Engineering Task Force,” in Open
Sources: Voices from the Open Source Revolution, edited by Chris DiBona et al. (Sebastopol,
Calif.: O’Reilly & Associates, 1999).
31. 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
systems, and word processors.Largely because of the ban on export of strong cr yptography,
there is today no strong mass-market standard cryptographic product within the U.S. eventhough a considerable mathematical and programming base is fully capable of creating one”;“It Came from Planet Clipper,” 19.
32. See “Network Associates and Key Recovery,” available at http://www.nai.com/products/security/key.asp (visited May 30, 1999).
33. Cisco has developed products that incorporate the use of network-layer encryption
through the IP Security (IPSec) protocol. For a b rief discussion of IPSec, see Cisco Systems,
Inc.,“IP Security–IPSec Overview,” available at http://www.cisco.com/warp/public/732/Security/ipsec_ov.htm (visited May 30,1999). For a more extensive discussion,see Cisco Systems,
Inc., “Cisco IOS Software Feature: Network-Layer Encryption—White Paper,” available at
http://www.cisco.com/warp/public/cc/cisco/mkt/security/encryp/tech/encrp_wp.htm (visited May 30, 1999); Cisco Systems, Inc. “IPSec—White Paper,” available at http://www.
cisco.com/warp/public/cc/cisco/mkt/security/encryp/tech/ipsec_wp.htm (visited May 30,1999); 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,” Information Week,
February 24,1997,22.
34. See Internet Architectural Board statement on “private doorbell” encryption, available at http://www.ietf.org/mail-archive/ietf-announce/msg01937.html (visited May 31,1999).
35. Little, but not nothing. Through conditional spending grants, the government wasquite 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 passwordprotect the MIT AI (artificial intelligence) machine,the Department of Defense threatened totake the machine off the Net unless the architectures were changed to restrict access. For
Stallman,this was a matter of high principle; for the Department of Defense,it was businessas usual;see Steven Levy, Hackers: Heroes of the Computer Revolution (Garden City, N.Y.: Anchor Press/Doubleday, 1984), 417–18.
36. See Minnesota Statute §§ 609.75, subd. 2–3, 609.755(1) (1994), making it a misdemeanor 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.

notes251

37. See Scott M. Montpas, “Gambling Online: For a Hundred Dollars,I Bet You Government Regulation Will Not Stop the Newest Form of Gambling,” University of Dayton Law Re view 22 (1996): 163.
38. Or at least it could work like this. Depending on the design, it could reveal much
more.
39. See 18 USC § 1955 (regulating businesses, defining interstate “illegal gambling” asgambling that occurs in a state in which it is illegal).
40. See Biometrics: Personal Id en ti f i c a tion in Networked Society, edited by Anil Jain,
Ruud Bolle, and Sharath Pankanti (Boston: Kluwer Academic Publishers, 1999); see also
Amanda Lang in “Mytec Braced for Lucent’s Challenge,” Financial Post (Toronto), May 15,
1997, 6. At a conference where these technologies were described, a participant recalled aquestion he had asked the manufacturer of a device that identified people based on theirh a n d :“ Does it have to be a live hand?” The company representative turned wh i te .“ No,” wasthe response.
41. On virtual private networks, see Smith, Internet Cryptography, chs. 6,7; on biometrictechniques for security, see Trust in Cyberspace, edited by Fred B. Schneider (Washington,
D.C.: National Academy Press, 1999),123–24,133–34.
42. Roberto Mangabeira Unger, Social Theory: Its Situation and Its Task (New York: Cambridge University Press, 1987).
43. In Bruce Ackerman, Social Justice in the Liberal State (New Haven, Conn.: Yale University Press, 1980), the core analytic device is dialogue: every assertion of power is met with ademand for justification.
44. Mitchell, City of Bits, 112.
45. Brin, The Transparent Society, 324.

C H A P T E R

6

1. Mike Godwin, CyberRights: Defending Free Speech in the Digital Age (New York: 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 powerfulenabling 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 a r ecent and important collection examining community in cyberspace, see Marc A. Smith andPeter Kollock, Communities in Cyberspace (New York: Routledge,1999). The collection ranges
across the social issues of community, including “social order and control,” “collective action,”“community st ructure 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. 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 Markets Through Virtual
Communities (Boston: Harvard Business School Press, 1997).
3. For a detailed study o f Internet demographics, see Matrix Information and Directory
Servi ce s ,“ In ternet Demographics: The Third MIDS Internet Demographic Survey” (MIDS
ids3,October 1995), available at http://www.mids.org/ids3/index.html (visited May 30,1999).
4. For a great sense of how it was, see the articles by Rheingold, Barlow, Bruckman, andRamo in part 4 of Richard Holeton, Composing Cyberspace: Identity, Community, and Knowl -

252

notes

edge in the Electronic Age (Boston: McGraw-Hill, 1998). Howard Rheingold’s book (the firstchapter of which is excerpted in Holeton’s book) is also an early classic; see The Virtual Com munity: Homesteading on the Electronic Fro n ti er (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 and Technology 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 o f values,an assumption about the larger society that frames it”; Interface
Culture: How New Technology Transforms the Way We Create and Communicate (San Francisco: Harper, 1997),44. See also Nelson Goodman,“How Buildings Mean,” in Reconceptions
in Philosophy and Other Arts and Sciences, edited by Nelson Goodman and Catherine Z.Elgin(London: Routledge,1988),31–48.
7. Cf. Godwin, CyberRights: “If you’re face-to-face with someone, you’re exposed tocountless things over which the other person may have had no conscious control—hair color,say, or facial expressions. But when you’re reading someone’s posted ASCII message, every thing you see is a product of that person’s mind” (42,italics in original);see also ibid.,44.
8. See Martha Minow, Making All the Diff erence: Inclusion, Exclusion, and American Law(Ithaca,N.Y.: Cornell University Press,1990), 74–97.
9. See Laura J. Gurak, Persuasion and Privacy in Cyberspace: The Online Protests over Lotus,
Marketplace,and the Clipper Chip (New Haven, Conn.: Yale University Press,1997),4–15. 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 Wired Women: Gender and New Realities in Cyberspace, edited by Lynn Cherny
and Elizabeth Reba Weise (Seattle: Seal Press, 1996),207.Godwin describes another possibility, as the ASCII channel on the Net shuts down: “Then, perhaps, the world of ASCII communications will become a preserve for the edgy exchanges of tense text maniacs. Like me”;
CyberRights, 45.
10. 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 University
Pre s s ,1 9 9 4 ) ,3 1 4 . William Mitchell argues that the advance back to synchronous communication is not necessarily an advantage: “As much more efficient asynchronous communications
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.
11. On making the Web accessible,see Judy Brewer and Daniel Dardailler, “Web Accessibility Initiative (WAI),” available at http://www.w3.org/WAI (visited May 30,1999);cf.“Note:
Facial Discrimination: Extending Handicap Law to Employment Discrimination on the Basisof Physical Appearance,” Harvard Law Review 100 (1987):2035.
12. See AOL, “About the Company: Profile,” available at http://www.aol.com/corp/profile/(visited May 30,1999).
13. See Kara Swisher, Aol.com: How S teve Case Beat Bill Gates, Nailed the Netheads, andMade Millions in the War for the Web (New York: Times Business,1998),65.
14. As stated in AOL’s Terms of Service (TOS): “As an AOL member you are required tofollow 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.,notes253

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). Partial or full frontal nudity is not okay. If you see it, report it at Keyword: Notify AOL.Sex/Sensuality: There is a difference between affection and vu l ga ri ty. 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 ne ws accounts,may be acceptablein 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 ofillegal drug abuse that imply it is acceptable are not.”15. See Amy Harmon, “Worries About Big Brother at America Online,” New York Times,
January 31,1999,1.
16. Swisher, Aol.com, 314–15.
17. Ibid., 96–97.
18. See Robert C. Post, Constitutional Domains: Democracy, Community, Management(Cambridge, Mass.: Harvard University Press,1995), 199–267.
19. See CyberPromotions, Inc. v America Online, Inc., 948 FSupp 436 (EDPa 1996) (holding that a company has no free speech right under the United States, Pennsylvania, or Virginia
Constitutions to send unsolicited e-mail over the Internet to a competitor’s customers).
20. See Elizabeth Reid,“Hierarchy and Power: Social Control in Cyberspace,” in Communi ties in Cyberspace, edited by Marc A. Smith and Peter Kollock (London: Routledge,1999),109.
21. See Josh Quittner, “Johnny Manhattan Meets the Furry Muckers,” Wired (March 1994):
92, available at http://www.wired.com/wired/archive/2.03/muds.html (visited May 30, 1999).
22. See Julian Dib bell, “A Rape in Cyberspace,” Village Voice, December 23, 1993, 36, 37,
available at http://www.levity.com/julian/bungle_vv.html (visited May 30,1999).
23. Ibid.
24. In particular, see Dibbell’s extraordinary My Tiny Life: Crime and Passion in a Virtual
World (London: Fourth Estate, 1998).
25. Ibid.,13–14.
26. If anything, the sexuality of the space invited adolescent responses by adolescents; see
Scott Bukatman, Terminal Id en ti ty: The Virtual Subject in Po s tm od ern Sci en ce Fiction(Durham,N.C.: Duke University Press, 1993), 326. On MOOs in particular, see Dibbell, My
Tiny Life. The challenge for the community was to construct norms that would avoid these responses without destroying the essential flavor of the space.
27. Dibbell, My Tiny Life, 24–25.
28. See Haakon (Pavel Curtis),“Petition System Implemented and in Force,” message 773
on *social-issues (#7233), LambdaMOO Bu ll etin Boa rd , May 1, 1993, available at
http://vesta.physics.ucla.edu/~smolin/lambda/laws_and_history/ballothistory (visited May
30,1999).
29. See Haakon (Pavel Curtis),“How to Make a Vote Binding on the Wizards” (first draft),message 511 on *social-issues (#7233), LambdaMOO Bulletin Board, April 8, 1993, available
at http://vesta.physics.ucla.edu/~smolin/lambda/laws_and_history/ballothistory (visited May
30,1999).
30. For a rich account of both the democracy and how it func tions,and the implications
for self-regulation with a MUD, see Jennifer Mnookin, “Virtual(ly) Law: The Emergence of
Law on LambdaMOO,” Journal of Computer-Mediated Communication 2 (1996): 1.
31. Hafner and Lyon, Where Wizards Stay Up Late, 216.“Flaming” is e-mail or other electronic communication that expresses exaggerated hostility; see Gurak, Persuasion and Privacy
in Cyberspace, 88.

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32. Mnookin, “Virtual(ly) Law,” 14.
33. One student of mine studied this behavior and concluded that the difference was significant. That study was limited,however, by a relatively small sample.On the question moregenerally, Gurak reaches a different conclusion about whether cyberspace remedies genderimbalances; Persuasion and Privacy in Cyberspace, 104–13.
34. Mike Godwin makes a similar point about the construction of any virtual community: “What most of us will want in the future, I think,is a place where we’re known and accepted on the basis of what Martin Luther King Jr. called ‘the content of our character.’ But
without planning, without a deliberate architectural vision about shaping virtual communities—and, most of all, without true freedom of speech—the incoming hordes of cyberspace
inhabitants will continue to be alienated, isolated, without any sense of belonging. Virtuallyhomeless”; CyberRights, 41.

C H A P T E R

S E V E N

1. Or more precisely, against a certain form of government regulation. The more powerful libertarian arguments against regulation in cy berspace are a dvanced, for example, by Peter Huber in Law and Disorder in Cyberspace: Abolish the FCC and Let Common Law Rule theTelecosm. Huber argues against agency regulation and in favor of regulation by the c ommon
law. See also Thomas Hazlett in “The Rationality of U.S. Regulation 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 c ommon law process, which lawyers liketo mythologize,in which judges make policy decisions in small spaces against the backgroundof 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 isconstituted differently.
2. The primary examples are the convictions under the 1917 Espionage Act; 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(Cambridge, Mass.: Harvard University Press,1991),235;see also John R. Commons, Institu tional Economics: Its Place in Political Economy (1934).
4. The general idea is that the tiny corrections of space enforce a discipline, and that thisdiscipline is an important regulation. Such theorizing is a tiny part of the work of Michel
Foucault; see Discipline and Punish: The Birth of the Prison (1979),170–77, though his work
generally inspires this p erspective. It is what Oscar Gandy speaks about in The Panoptic Sort:
A Political Economy of Personal Information (Boulder, Colo.: Westview Press,1993),23.DavidBrin makes the more general point that I am arguing—that the threat to liberty is broader
than a threat by the state; see The Transparent 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, Calif.: Crisp Publications,1994);
Preserving the Built Heritage: Tools for Im pl em en t a ti o n , 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, forexample, William Lennertz, “Town-Making Fundamentals,” in Towns and Town-Making Prin ciples, edited by Andres Duany and Elizabeth Plater-Zyberk (New York: Rizzoli, 1991): “The

notes255

work of . . . Duany and . . . Plater-Zyberk begins with the recognition that design affects behavior. [They] see the structure and function of a community as interdependent. Because ofthis,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
Chicago School,” Journal of Legal Studies 27 (1998): 661. It is within the “tools approach” togovernment action (see John de Monchaux and J. Mark Schuster, “Five Things to Do,” inSchuster, 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. See generally Smoking Policy: Law, Politics, and Culture, edited by Robert L. Rabin andStephen D. Sugarman (New York: Oxford University Press,1993);Lawrence Lessig, “The Regulation of Social Meaning,” University of Chicago Law Review 62 (1995):943,1025–34; Cass R.
Sunstein, “Social Norms and Social Roles,” Columbia Law Review 96 (1996): 903.
8. 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.
9. The ACLU lists twelve states that passed Internet regulations between 1995 and 1997;
see http://www.aclu.org/issues/cyber/censor/stbills.html#bills (visited May 31,1999).
10. 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
http://www.ag.state.mn.us/home/consumer/consumernews/OnlineScams/memo.html (visited May 31, 1999).
11. See, for example, Playboy Enterprises v Chuckle berry Publishing, Inc., 939 FSupp 1032
(SDNY 1996); United States v Thomas, 74 F3d 1153 (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); United States v Hall, 142 F3d 988 (7th Cir 1998); United States 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).
12. See Julian Dibbell, “A Rape in Cyberspace,” Village Voice, December 23,1993,36.
13. See, for example, “AOL Still Suffering but Stock Price Rises,” Network Briefing, January
31, 1997; David S. Hilzenrath, “‘Free’ Enterprise, Online Style; AOL, CompuServe, andProdigy Settle FTC Complaints,” Washington Post, May 2, 1997, G1; “America Online Plans
Better Information About Price Changes,” Wall Street Journal, May 29, 1998, B2; see also
Swisher, Aol.com, 206–8.
14. USENET postings can be anonymous; see Henry Spencer and David Lawrence, Man aging USENET (Sebastopol, Calif.: O’Reilly & Associates,1998),366–67.
15. Web browsers make this information available, both in real time and archived in a
cookie file; see http://www.cookiecentral.com/faq.htm (visited May 31,1999). They also permit users to turn this tracking feature off.
16. PGP is a program to encrypt messages offered both commercially and free.
17. Encrypti on , for example, is illegal in some international contexts; see Baker and
Hurst, The Limits of Trust, 130–36.
18. Mitchell, City of Bits, 159.
19. See Katsh, “Software Worlds and the First Amendment,” 335,340.“If a comparison to
the physical world is necessary, one might say that the software designer is the architect, thebuilder, and the contractor, as well as the interior decorator.”
20. See Rummel v Estelle, 445 US 263,274 n.11 (1980).

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21. Interestingly—and again, a reason to see the future of regulation talk located elsewhere—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 the Built Heritage, they describe the “five and only five things that governments cando—five distinct tools that they can use—to implement their” policies (4–5): ownership andoperation (the state may own the resource); regulation (of either individuals or institutions);
incentives; property rights; information. Monchaux and Sc huster’s five tools map in a complex way on the st ructure I have described, but significantly, we share a view of regulation asa constant trade-off between tools.
22. See, for example, James C. Carter, The Provinces of the Written and the Unwritten Law(New York: Banks & Brothers, 1889), who argues that the common law cannot be changed(38–41).
23. See, for example, the discussion of wage fund theory in Hovenkamp, Enterprise andAmerican Law, 193–96.
24. For a fascinating account o f the coming of age of the idea that the natural environment might be tamed to a productive and engineered end,see John M. Barry, Rising Tide: The
Great Mississippi Flood of 1927 and How It Changed America (New York: Simon & Schuster,1997).
25. 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”; Social Theory, 1.
26. The idea of a free market was the obsession of the realists,especially Robert Hale;see
Barbara Fried, The Progressive Assault on Laissez-Faire: Robert Hale and the First Law and Eco nomics Movement (Cambridge, Mass.: Harvard University Press, 1 9 9 8 ) :“ E conomic life, like
Clark’s moral market, was constituted by a regime of property and c ontract rights that wereneither spontaneously occurring nor self-defining, but were rather the positive creation of thestate” (2–3). For a modern retelling, see Cass R. Sunstein, The Partial Constitution (Cambridge, Mass.: Harvard University Press,1993),51–53.
27. Americans with Disabilities Act (ADA) of 1990,42 USC §§ 12101 et seq.(1994).
28. See Alain Plessis, The Rise and Fall of the Second Empire,1852–1871, (1979) translated
by Jonathan Mandelbaum (English-language edition, New York: Cambridge University Press,
1985), 121; “Haussmann, Georges-Eugene Baron,” in Encyclopedia Britannica, 5th ed., vol. 5(1992).Steven Johnson criticizes other aspects of the change in Interface Culture, 63–64.
29. See Robert A. Caro, The Power Broker: Robert Moses and the Fall of New York (NewYork: Alfred A. Knopf, 1974), 318.
30. Brin, The Transparent Society, 293.
31. Consider civil rights in the American South. During the legislative hearings on the
Civil Rights Act o f 1964, supporters of the bill called before the committee white, southern
employers and business owners whose discrimination against blacks was the prime target ofthe legislation. Some of these employers and businessmen supported the bill because businesswould improve:the labor pool would increase,causing wages to decrease,and the demand forservices 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, thelaw reduced the symbolic costs of hiring blacks. This example demonstrates how law canchange norms without government having control over the norms. In this case, the norm ofaccommodating blacks was changed by giving it a second meaning—the norm of simply
obeying the law; see Lessig, “The Regulation of Social Meaning,” 965–67.

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32. Thurgood Marshall, Esq., oral argument on behalf of respondents, Cooper v Aaron,
358 US 1 (1958) (no. 1),in Fifty-four Landmark Briefs and Arguments of the Supreme Court of
the United States: Constitutional Law, edited by Philip B. Kurland and Gerhard Casper (Washington, D.C.: University Publications of America, 1975),533, 713.
33. 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 “The Regulation of Groups: The Influence of Legal and Nonlegal
Sanctions on Collective Action” (University of Chicago Law Review 63 [1996]: 133), Eric A.
Posner argues that government help to a community can undermine the community.
34. Cass Sunstein points to seatbelt law as a hypothetical of “government regulation permit[ing] people to express preferences by using the shield of the law to lessen the risk that private actors will interfere with the expression [through normative censure]”;“Legal Interferencewith Private Preferences,” University of Chicago Law Review 53 (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 an Adequate 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 aseatbelt. It is macho and it is smart and it is manly and it is also feminine and smart and savvy
and charming to put on a seatbelt’”; Charles W. Gusewelle et al., “Round Table Discussion: Violence in the Media,” Kansas Journal of Law and Public Policy 4 (1995): 3 9 ,4 7 .
35. The analysis here was in part suggested by Minow, Making All the Difference: Inclusion,
Exclusion and American Law (1990).
36. See Tracey L. Meares, “Social Organization and Drug Law Enforcement,” American
Criminal Law Review 35 (1998):191.
37. Eric Posner (“The Regulation of Groups”) points to contexts within which government action may have had this effect.
38. See Tracey L. Meares, “Charting Race and Class Differences in Attitudes Toward Drug
Legalization and Law Enforcement: Lessons for Federal Criminal Law,” Buffalo Criminal Law
Review 1 (1997): 137.
39. In the mid-1970s the U.S. government sponsored a campaign to spray paraquat (aherbicide 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 Supply-Side Strategy: A Survey of United States Practice” (Vanderbilt Law Re view 43 [1990]: 1259, 1275 n.99), Sandi R. Murphy gives a full history of the laws passed
relevant to paraquat; see also “A Cure Worse Than the Disease?,” Time, August 29,1983,20.
40. Roe v Wade, 410 US 113 (1973).
41. Rust v Sullivan, 500 US 173 (1991).
42. Maher v Roe, 432 US 464 (1977).
43. Hodgson v Minnesota, 497 US 417 (1990).
44. This distinction between “direct” and “indirect” regulation, of course,has a long andtroubled history in philosophy as well as in law. Judith J. Thomson describes this difference inher distinction between the trolley driver who must run over one person to save five and thesurgeon 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

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known as the “double effect doctrine,” discussed in Philippa Foot, “The Problem of Abortionand the Doctrine of the Double Effect,” in Virtues and Vices and Other Essays in Moral Philos ophy (Berkeley: University of California Press, 1978), 19. See also Thomas J. Bole III, “TheDoctrine of Double Effect: Its Philosophical Viability,” Southwest Philosophical Review 7(1991): 91; Frances M. Kamm, “The Doctrine of Double Effect: Reflections on Theoreticaland Practical Issues,” Journal of Medicine and Philosophy 16 (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.
45. 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 the hope that manufacturers would then have an incentive to compete to improve those ratings; the government could (a) allow an industry toremain monopolized and attempt directly to regulate the price the monopolist charged or (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” representatives, in the hope that the boards would then d ecide for themselves to
act more consistently with the public interest.
46. See New York v United States, 505 US 144 (1992).
47. Aida Torres, “The Effects of Federal Funding Cuts on Family Planning Services,
1980–1983,” Family Planning Perspectives 16 (1984): 134,135,136.
48. 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.”
49. 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 d octrine is safe fr om 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)]).
50. Shelley v Kraemer, 334 US 1 (1948).
51. See Herman H. Long and Charles S. Johnson, People Versus Property: Race-Restrictive
Covenants in Housing (Nashville, Fisk University Press, 1947),32–33. Douglas S. Massey andNancy A. Denton point out that the National Association of Real Estate Brokers adopted anarticle in its 1924 code of ethics stating that “a Realtor should never be instrumental in introducing into a neighborhood . . . members of any race or nationality . . . whose presence willclearly 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. Jacks on , Crabgrass Frontier: the Su bu rbanization of the United States [1985], 208); American
Apartheid: Se gregation and the Making of the Under Class (Cambridge, Mass.: Harvard University Press,1993),37,54.
52. See Massey and Denton, American Apartheid.
53. 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,andto 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notes259

keys. In the absence of any formal authority to prevent the adoption of unescrowed cryptography, 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 preventthe public from using nonconforming products, perhaps it could set the standard by purchasing and deploying large numbers of escrowed products”;“It Came from Planet Clipper,”15,24,1–33.
54. See http://thestandard.com/articles/display/0,1449,4165,00.html.
55. See “Legal Eagle” (letter to the editor), The Industry Standard, April 26,1999 (emphasis added), available at http://www.thestandard.com/articles/article_print/0,1454,4306,00.
html (visited May 30, 1999).

C H A P T E R

E I G H T

1. I want to sidestep the raging debate about whether to call this mo vement the free software movement,the open source software movement, or something altogether different. The
reality is mo re important than the label. Activists will work out how best to claim the tradition. My aim is simply to understand the consequences of the struggle.
2. By “closed code” I don’t mean anything conspiratorial. I mean simply code that does
not reveal its source.A code writer might have many reasons for hiding the source—including economic survival, security, or embarrassment. The crux of my argument is that, regardless of the reason, closed code is not as easily modified as open code.
3. Hunt, TCP/IP: Network Administration, 1–22, 6, 8; Loshin, TCP/IP: Clearly Explained,
13–17.
4. There is no standard reference model for the TCP/IP layers. Hunt refers to the four layers as the “net work 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 diff erent moniker, the functions performed in each ofthese 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 network.” Each layer “has its own independent data structures,” with one layer “unaware of thedata structures used by”other layers; Hunt, TCP/IP: Network Administration, 9.
5. Loshin, TCP/IP: Clearly Explained, 18.
6. As Hafner and Lyon explain: “The general view was that any protocol was a potentialbuilding block, and so the best approach was to define simple protocols, each limited inscope, with the expectation that any of them might someday be joined or modified in various
unanticipated ways. The protocol design philosophy adopted by the NWG [network working
group] broke ground for what came to be widely accepted as the ‘layered’approach to protocols”; Where Wizards Stay Up Late, 147.
7. The fights over encryption at the link level, for example,are fi ghts 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 http://www.cisco.com/warp/public/779/govtaff/policy/paper/
paper_index.html (visited May 30,1999). This has been opposed by the Internet Architectural
Board (IAB) as inconsistent with the “end-to-end”architecture of the Internet; see IAB statement on “private doorbell” encryption, available at http://www.ietf.org/mail-archive/ietf-announce/msg01937.html (visited May 30,1999).
8. See John C. Morley and Stan S. Gelber, The Emerging Digital Future: An Overview ofBroadband and Multimedia Networks (Danvers, Mass.: Boyd & F raser Publishing C o., 1996);

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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.
9. See Timothy Wu, “Internet v Application: An Introduction to Application-Centered Internet Analysis,” Virginia Law Review 86 (1999).
10. See Hafner and Lyon, Where Wizards Stay up Late, 174.
11. A 1994 HTML manual lists twenty-nine different browsers;see Larry Aronson, HTMLManual of Style (Emeryville, Calif.: Ziff-Davis Press,1994), 124–26.
12. See Ibid., 4.
13. 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 Ira V. Heffan, “Copyleft: Licensing Collaborative Works in the Digital Age,”
Stanford Law Review 49 (1997): 1487,1492–93.
14. Netscape’s Communicator is an exception. As I explained,in 1998, the company gavethe source code for the product (minus some encr yption modules) to Mozilla, which would
continue the development of Mozilla as part of the open source movement;see “Mozilla Public License,” available at http://www.mozilla.org/NPL/NPL–1_1Final.html (visited May 31,1999). See the discussion in Robert W. Gomulkiewicz, “The License Is the Product: Comments on the Promise of Article 2B f or Software and Information Licensing,” Berkeley Tech nology Law Journal 13 (1998): 891,924.
15. See Amy Harmon, “The Rebel Code,” New York Times Magazine, February 21, 1999,
34.
16. At the time Linux was developed, the dominant thinking among computer scientists
was against a monolithic operating system operating out o f 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,” in Open Sources: Voices from theOpen Source Revolution, edited by Chris DiBona et al.(Sebastopol, Calif.: O’Reilly & Associates, 1999),221–52.
17. Technically, it does not sit in the public domain. Code from these open source projects
is licensed.GNU/Linux is licensed under the GNU GPL, which limits the possible use you canmake of Linux; essentially, you cannot take the public part and close it,and you cannot integrate the open part with the closed; see Bruce Perens, “The Open Source Definition,” in DiBona et al., Open Sources, 181–82. But for purposes of future open source development, thecode 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 Privatizationin 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,” Emory Law Journal 39 (1990): 965; Carol M. Rose, “TheSeveral Futures of Property: Of Cyberspace and Folk Tales,Emission Trades and Ecosystems,”
Minnesota Law Review 83 (1998): 129.
18. See, for example, Stephen Shankland, “Big Blue Gives Green Light to Linux,” CNET
News.com, February 16, 1999, available at http://www.news.com/News/Item/0,4,32476,00.
html (visited May 30, 1999); Stephen Shankland, “Big Blue Latches onto Linux,” CNET
News.com, February 18, 1999, available at http://www.news.com/News/Item/0,4,32563,00.
html (visited May 30, 1999).
19. 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.
20. As I explain in more detail in chapter 16, transparent modular code would do thesame thing as open code. Thus,the code could be closed yet achieve these same objectives.

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N I N E

1. Justice Holmes himself called the wiretapping a “dirty business”; Olmstead v UnitedStates, 277 US 438,470 (1928) (Justice Oliver Wendell Holmes Jr. dissenting).
2. Ibid.,457 (Chief Justice William H. Taft:the obtaining of evidence by wiretaps inserted
along telephone wires was done without trespass and thus did not violate the Fourth Amendment).
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 Fourth Amendment andhow it should be applied today. For the two camps, see Akhil Reed Amar, “Fourth Amendment First Principles,” Harvard Law Review 107 (1994):757; Tracey Maclin, “The Complexityof the Fourth Amendment:A Historical Review,” Boston University Law Review 77 (1997):925(critiquing 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 Fourth Amendment 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 sensethat we understand the term today. The modern police f orce is a creation of the nineteenth
century; see Carol S.Steiker, “Second Thoughts About First Principles,” Harvard Law Review
107 (1994): 820,830–34;Stuntz, “The Substantive Origins of Criminal Procedure.”
7. See Amar, “Fourth Amendment 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 war rant) 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 dissenting: “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,” Texas Law Review 71 (1993): 1165,
1230.
12. Olmstead v United States, 277 US 438,470 (1928),464–65.
13. Ibid., brief for the Pacific Telephone & Telegraph Company (nos.493, 532,533).
14. Ibid., 473 (Justice Louis Brandeis dissenting).
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 in West Virginia State Board of Education v 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 todisturb self-confidence. These principles grew in soil which also produced a philosophy thatthe individual was the center of society, that his liberty was attainable through mere absenceof governmental restraints, and that government should be entrusted with few controls andonly the mildest supervision over men’s affairs. We must transplant these rights to a soil inwhich 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notes262

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 o f our competence but by
force of our commissions. We cannot, because of modest estimates of our competence in suchspecialties as public education, withhold the judgment that history authenticates as the function of this Court when liberty is infringed.”
16. See Robert Post, Constitutional Domains: Democracy, Community, Management (Cambridge, Mass.: Harvard University Press,1995),60–64.
17. See Lessig, “Fidelity in Translation,” 1214–68; Lawrence Lessig, “Translating Federalism: United States v Lopez,” Supreme Court Review 1995 (1995): 125,146. For a more sophisticated analysis of how changing technologies in the context of telecommunications isaffecting le gislation 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 t ranslations 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 theElectronic 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 Fourth Amendment’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 “reasonable expectation of privacy” test, the Court could lat er 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,” Emory Law Journal 45(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 the reof be clear and unambiguous. The usual instance of a latent ambiguity is one in which a writing refers to a particularperson 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 byWalter 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 dissenting).
30. See Bernard Williams, “The Relations of Philosophy to the Professions and Public
Life,” unpublished manuscript.

C H A P T E R

T E N

1. Harold Smith Reeves,“Property in Cyberspace,” University of Chicago Law Review 63(1996): 761.

notes263

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 cyberspace requires that boundaries be set along nontraditional context-specific lines. This conclusion, Reeves asserts, requires the law to understand both the environment of cyberspace andthe interests of those who transact in that space;see ibid.,799.
3. Cf. Yochai Benkler, “Free as the Air to Common Use: First Amendment Constraints on
Enclosure of the Public Domain,” New York 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 web sites, for example, might use to control, or
block, links from one site to anothe r; see “Fencing Cyberspace: Drawing Borders in a Virtual
World,” Minnesota Law Review 82 (1998):610, 645–47.
5. See, for example, Stephen Breyer, “The Uneasy Case for Copyright: A Study of Copyright in Books,Photocopies,and Computer Programs,” Harvard Law Review 84 (1970):281.
6. Copyright gives other rights as well—such as the right to reclaim an assigned copyrightor the right of first sale. For a lucid introduction,see William F. Patry, Latman’s The CopyrightLaw, 6th ed. (Washington, D.C.: Bureau of National Affairs,1986). For something more thanlucid,see James Boyle,“Intellectual Property Policy Online: A Young Person’s Guide,” Harvard
Journal of Law and Technology 10 (1996): 47.
7. See Richard A. Posner, Law and Literature, 2d ed.(Cambridge, Mass.: Harvard University Press, 1998),389–92 (discussing incentives to write even without copyright).
8. For the real constraint on publication initially was paper, not presses. Before the invention of wood-based paper, paper was produced from cloth. Cloth,however, was extremely expensive. While a persistent myth is that one source for this cloth was Egyptian mummies(Scott D. N. Cook, “Technological Revolutions and the Gutenberg Myth,” in Internet Dreams:
Archetypes, Myths, and Metaphors, edited by Mark Stefik [1996],75), there is no support forthis claim. See Joseph A.Dane, “The Curse of the Mummy Paper,” Printing History 17 (1996):
18. Nonetheless,the shortage of paper is well established (ibid.,18–19).I am grateful to Consuele Dutschke for help with this history.
9. For a complete and readable account of the transformation in technology, and law’s response, see Paul Goldstein, Copyright’s Highway: The Law and Lore of Copyright from Guten berg to the Celestial Jukebox (New York: Hill and Wang, 1994).
10. See Sony Corporation of America v Universal City Studios, Inc., 464 US 417,421 (1984),
which,in defining “time-shifting” as using a VTR principally to record a program one cannot
view as it is being televised and then to watch it once at a later time, classifies this practice asa fair use of a copyrighted work that does not entitle the copyright holder to any remedy.
11. See Jonathan Evan Goldberg, “Now That the Future Has Arrived, Maybe the Law
Should Take a Look: Multimedia Technology and Its Interaction with the Fair Use Doctrine,”
American University Law Review 44 (1995): 919; Mary L. Mi ll s ,“ New Technology and theLimitations of Copyright Law: An Argument for Finding Alternatives to Copyright L egislation in an Era of Rapid Technological Change,” Chicago-Kent Law Review 65 (1989): 307;
Kenneth P. Weinberg, “Cryptography: ‘Key Recovery’ Shaping Cyberspace (Pragmatism andTheory),” Journal of Intellectual Property Law 5 (1998): 667.
12. Judge Posner usefully distinguishes between changes that might help an individual
author and changes that help authors as a class. Some decreased copyright protection for authors as a whole would benefit authors as a whole,since copyright imposes costs on authors(the writing of others is an input to their own future writing); see Law and Litera tu re ,389–405.
13. See Michelle Skatoff-Gee, “Changing Technologies and the Exp ectation of Privacy: A
Modern Dilemma,” Loyola University of Chicago Law Journal 28 (1996):189, 201–4, who discusses Congress’s enactment of the Electronic Communications Privacy Act of 1986 in an effort to update existing law and keep pace with changing technology. But see Sandra Byrd

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Petersen, “Your Life as an Open Book: Has Technology Rendered Personal Privacy Virtually
Obsolete?,” Federal Communications Law Journal 48 (1995):163, who argues that privacy laws
in the United States have not kept pace with technological developments.
14. See Esther Dyson,“Int ellectual Value,” Wired (July 1995):137, who discusses the effectof the new economic environment of the Net on intellectual property. John Perry Barlow(“The Economy of Ideas,” Wired [March 1994]:85) asserts that “copyright and patent law wasdeveloped to convey forms and methods of expression entirely different from the vaporous
cargo it is now being asked to carry.”
15. As Nicholas Negroponte puts it,“Most people worry about copyright in terms of theease of making copies. In the digital world,not only the ease is at issue, but also the fact thatthe digital copy is as perfect as the original and, with some fancy computing, even better. In
the same way that bit strings can be error-corrected,a copy can be cleaned up, enhanced,and
have noise removed. The copy is perfect”; Being Digital (1995),58.
16. U.S. Department of Commerce, Task Force—Working Group on Intellectual Property
Rights,“Intellectual Property and the National Information Infrastructure: The Report of theWorking Group on Intellectual Property Rights,” available at http://www.uspto.gov/web/offices/com/doc/ipnii/ (visited May 30, 1999, and hereinafter referred to as the White Paper).
See also Boyle,“Intellectual Property Policy Online,” 66.
17. 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,” Cleveland State Law Review
44 [1996]:197) criticizes the White Paper’s lack of completeness, inconsistencies,and apparent lack of adequate consideration;see also Pamela Samuelson, “The Copyright Grab,” Wired(January 1996):134,136. By contrast,Gary W. Glisson (“A Practitioner’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 http://lcweb.loc.gov/copyright/reports (visited May 30,1999).
18. 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 Participationin an International Intellectual Property Regime, reprinted in New York University Journal ofInternational Law and Politics 29 (1996–97): 211,213–15; White Paper, 17.
19. The latest such threat is the anticircumvention provision of the Digital Millennium
Copyright Act, which makes it a crime (subject to complex exceptions) to manufacture code
to circumvent a copyright protection mechanism, even if the use of the underlying 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”).
20. See Barlow, “The Economy of Ideas,” 129; see also John Perry Barlow, “Papers andComments of a Symposium on Fundamental Rights on the Information Superhighway,” An nual 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 whatso ever,” unlike traditional forms
of property. “We have tended to think,” he adds, “that copyright worked well because it was
physically difficult to transport intellectual properties without first manifesting them in somephysical form. And it is no longer necessary to do that.”
21. See Mark Stefik, “Shifting the Possible: How Trusted Systems and Digital Property
Rights Ch a ll en ge Us to Rethink Digital Publishing,” Berkeley Technology Law Journal 12(1997): 137; Mark Stefik, “Trusted Systems,” Scientific American (March 1997): 78; Mark Ste-

notes265

fik,“Letting Loose the Light: Igniting Commerce in Electronic Publication,” in Stefik, Internet
Dreams, 220–22, 226–28.
22. See Joel R. Reidenberg, “Governing Networks and Rule-Making in Cyberspace,” Emory
Law Journal 45 (1996): 911.
23. 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.
24. Ibid.
25. David Hackett Fischer, Albion’s Seed: Four British Folkways in America (New York: Oxford University Press,1989),765.
26. 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 Sovereignty: Notes
Toward a Cultural Geography of Authorship,” Stanford Law Review 48 (1996): 1293.
27. 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 Inter national Economic Law 17 [1996]: 33,34), who notes that many realists and critical le gal theorists have asserted that “private law”is an oxymoron.
28. Judges have also made this argument; see Lochner v New York, 198 US 45, 74 (1905)(Justice Oliver Wendell Holmes Jr. dissenting).
29. 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).
30. Boyle, Shamans,Software, and Spleens, 174.
31. I am hiding a great deal of philosophy in this simplifi ed utilitarian account, but for a
powerful economic grounding of the point,see Harold Demsetz, “Toward a Theory of Property Rights,” American Economics Review 57 (1967): 347.
32. For a wonderfully clear introduction to this point,as well as a complete analysis of thelaw, see Robert P. Merges et al., Intellectual Property in the New Technological Age (New York:
Aspen Law and Business,1997), ch.1.
33. Thomas Jefferson,letter to Isaac Mcpherson, August 13,1813, reprinted in Writings ofThomas 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).
34. For the classic discussion,see Kenneth J. Arrow, “Economic Welfare and the Allocationof Resources for Invention,” in The Rate and Direction of Inventive Activity: Economic and So cial Factors (Princeton,N.J.: Princeton University Press,1962),609,616–17.
35. For a powerfully compelling problematization of the economic perspective in thiscontext, see Boyle,“Intellectual Property Policy Online,” 35–46. Boyle’s work evinces the indeterminacy that e conomics ought to profess about whether increasing property rights o ver
information will also increase the production of information.
36. Some will insist on calling this “property”; see Frank H. Easterbroo k ,“ In tellectual
Property Is Still Property,” Harvard Journal of Law and Public Policy 13 (1990):108.
37. This is the message of Justice Stephen Breyer’s work on copyright, for example, “The
Uneasy Case for Copyright.”
38. For an extensive and balanced analysis,see William M.Landes and Richard A. 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 numberof 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

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of creating 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 newworks (326). See also Posner, Law and Literature, 389–405.
39. These limits come from both the limits in the copyright clause, which sets its purposesout quite clearly, and the First Amendment; see, for example, Feist Publications, Inc. v Rural
Telephone Service Co., 499 US 340,346 (1991).
40. The “first sale” doctrine was developed under § 27 of the former Copyright Act (17USC [1970]) and has since been adopted under § 109(a) of the present Copyright Act; see
United States v Goss, 803 F2d 638 (11th Cir 1989) (discussing both versions of the CopyrightAct).
41. Europeans like to say that “moral rights” have been part of their system since the b eginning of time, but as Professor Jane C.Ginsburg has 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.
42.Or so it is argued in Eldred v Reno (DDC filed January 4,1999).
43. It is useful to compare the p rotection that copyright gives to the protection of trade
secret law. All of the protection of trade secret law comes, in a sense, from the architectural
constraints I have described. One is always permitted, that is, to reverse-engineer to discovera trade secret; see Kewanee Oil Company v Bicron Corporation, 416 US 470, 476 (1974): “A
trade secret law . . . does not offer protection against discovery by fair and honest means, suchas by independent invention, accidental disclosure, or . . . reverse engineering.”
44. 86 F3d 1447 (7th Cir 1996); see also Easterbrook,“Intellectual Property Is Still Property,”
113–14. For an excellent account of the deb a te ,s ee Charles R. McManis, “The Privatization (or‘Shrink-Wrapping’) of American Copyright Law,” California Law Review 87 (1999): 173,183.
45. This is a reference to the recent battle to draft what was originally called the Uniform
Commercial Code 2B, and more recently the Uniform Computer Information Transactions
Act (UCITA). By essentially ratifying the click-wrap agreement, this code would facilitate
online mass consumer contracts governing the sale of “online information.” This move has
been widely criticized; see “Symposium: Intellectual Property and Contract Law for the Information Age: The Impact of Article 2B of the Uniform Commercial Code on the Future ofInformation and Commerce,” California Law Review 87 (1999): 1; Lawrence Lessig, “Pain in
the OS,” The Industry Standard, February 5, 1999, available at http://www.thestandard.
com/articles/display/0,1449,3423,00.html (visited May 30, 1999). My criticism is that while
the rhetoric of this move is grounded in the “freedom of contract,” the code actually doesnothing to ensure that the contracting process produces understanding of the terms of thecontract by both parties to the contract. The incentives created by provisions like the “Restatement (Second) of Contracts” (§ 211) are not present in the UCITA .U C I TA presupposesthat if the consumer had a chance to understand, he understands. But from an efficiency
perspective, let alone a justice perspective, the consumer is not the cheapest understanding
producer. The code simply ratifies the contract that the seller proposes. This is not “freedomof contract,” but contract according to whatever the seller says. For a useful analys i s ,s ee Walter A .E f f ro s s , “The Legal Architecture of Virtual Stores: World Wide Web Sites and the Uniform Commercial Code,” San Diego Law Review 34 (1997): 1263, 1328–59.
46. See William W. Fisher III, “Compulsory Terms in Internet-Related Contracts,”
Chicago-Kent Law Review 73 (1998). Fisher catalogs public policy restrictions on freedom ofcontract, which he characterizes as “ubiquitous.”
47. An argument is raging about whether, even through law, this modification of the default copyright law should be permitted. Mark A. Lemley has catalogued the provisions of the
Copyright Act that are arguably put at risk by contracting behavior; see “Beyond Preemption:notes267

The Law and Policy of Intellectual Property Licensing,” California Law Review 87 (1999):111;
see also A. Michael Froomkin, “Article 2B as Legal Software for Electronic Contracting—Operating System or Trojan Horse?,” Berkeley Technology Law Journal 13 (1998):1023; Michael J.
Madison,“Legal-War: Contract and Copyright in the Digital Age,” Fordham Law Review 67(1998): 1025; David Nimmer et al., “The Metamorphosis of Contract into Expand,” Califor nia Law Review 87 (1999):17; Pamela Samuelson,“Intellectual Property and Contract Law for
the Information Age: Foreword,” California Law Review 87 (1999): 1. The questions Lemleyraises,however, cannot be easily raised when it is the code that protects the intellectual property interest; Maureen A. O’Rourke, “Copyright Preemption After the ProCD Case:A MarketBased Approach,” Berkeley Technology Law Journal 12 (1997): 53.
48. See Tom W. Bell ,“ Fair Use vs. Fared Use: The Impact of Automated Rights Management
on Copyright’s Fair Use Doctrine,” North Carolina Law Review 76 (1998): 557,581–84. Bell argues that technology will prove more effective than fair use in curing the market failure that results when transaction costs discourage otherwise value-maximizing uses of copyrighted work;see also the White Paper observation that “it may be that technological means of tracking transactions and licensing will lead to reduced application and scope of the fair use doctrine” (74).
49. See Bell, “Fair Use vs. Fared Use,” 582–84; U.S. Department of Commerce, Task
Force—Working Group on Intellectual Property Rights, “Intellectual Property and the National Information Infrastructure,” 66 n.228,notes the difficulty of defining the bounds of thefair use doctrine.
50. For a foundational modern work on the nature of fair use,see Wendy J. Gordon,“FairUse as Market Failure:A Structural and Economic Analysis of the Betamax Case and Its Predecessors,” Columbia Law Review 82 (1982): 1600. A more recent work by William Fisher(“Reconstructing the Fair Use Doctrine,” Harvard Law Review 101 [1988]: 1659, 1661–95)
considers both the efficiency and utopian goals of copyright law.
51. See Gibbons v Ogden, 22 US 1 (1824) (striking down New York’s grant of a monopolyof steamboat navigation on the Hudson River as inconsistent with the federal Coasting Act of1793); McCulloch v Maryland, 17 US 316 (1819) (pronouncing that C ongress has the power
to do what is “necessary and proper” to achieve a legitimate end, like the regulation of interstate commerce).
52. See Bernard C.Gavit, The Commerce Clause of the United States Constitution (Bloomington, Ind.: Principia Press,1932),84.
53. See Pensacola Telegraph Company v Western Union Telegraph Company, 96 US 1, 9
(1877).
54. As one commentator put it near the turn of the century: “If the power of Congresshas a wider incidence in 1918 than it could have had in 1789, this is merely because production 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 ofgovernment, 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.
55. See Alexis de Tocqueville, Democracy in America, vol. 1 (New York: Vintage, 1990),
158–70, on the idea that the frame rs’ design pushed states to le gislate in a broad domain andkeep the local government active.
56. See Maryland v Wirtz, 392 US 183,201 (1968) (Justice William O. Douglas dissenting:the majority’s bringing of employees of state-owned enterprises within the reach of the commerce clause was “such a serious invasion of state sovereignty protected by the Tenth Amendment 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 ofCongress to grant protection to interstate commerce against state regulation or taxation or towithhold it is so complete that its ideas of policy should prevail”) (citations omitted).

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57. See Michael G. Frey, “Unfairly Applying the Fair Use Doctrine: Princeton University
Press v Michigan Document Services, 99 F3d 1381 (6th Cir 1996),” University of Cincinnati Law
Review 66 (1998): 959, 1001; Frey asserts that “copyright p rotection exists primarily for the
benefit of the public,not the benefit of individual authors. Copyright law does give authors aconsiderable benefit in terms of the monopolistic right to control their creations, but thatright exists only to ensure the creation of new works. The fair use doctrine is an importantsafety valve that ensures that the benefit to individual authors does not outweigh the benefit
to the public”; Marlin H. Smith (“The Limits of Copyright: Property, Parody, and the Public
Domain,” Duke Law Journal 42 [1993]: 1233, 1272) asserts that “copyright law is better un derstood as that of a gatekeeper, controlling access to copyrighted works but guaranteeing, via
fair use,some measure of availability to the public.”
58. See Mark Gimbel (“Some Thoughts on the Implications of Trusted Systems for Intellectual Property Law,” Stanford Law Review 50 [1998]: 1671, 1686), who notes that fair use
can be “explained as a method of curing the market failure that results when high transaction
costs discourage otherwise economically efficient uses of copyrighted material,” and that “because technologies like trusted systems promise to reduce the costs of licensing copyrighted
works—thereby curing this market failure—some argue that the doctrine of fair use will forthe most part be rendered unnecessary, obviating the need to regulate technologies that un dermine it”; Lydia Pallas L oren (“Redefining the Market Failure Approach to Fair Use in an
Era of Copyright Permission Systems,” Journal of Intellectual Property Law 5 [1997]:1, 7) asserts that under a “narrowed market failure view of fair use, if a copyright owner can estab lish an efficient ‘permission system’ to collect fees for a certain kind of use,then the copyrightowner will be able to defeat a claim of fair use.”
59. Stefik,“Letting Loose the Light,” 244.
60. Efficient here both in the sense of cheap to track and in the sense of cheap to then discriminate in pricing; William W. Fisher III,“P roperty and Contract on the Internet,” ChicagoKent Law Review 74 (1998).
61. Julie E. Cohen, “A Right to Read Anonymously: A Closer Look at ‘Copyright Management’ in Cyberspace,” Connecticut L aw Review 28 (1996): Reading anonymously is “so intimately connected with speech and freedom of thought that the First Amendment should beunderstood to guarantee such a right” (981,982).
62. “The freedom to read anonymously is just as much a part of our tradition, and the
choice of reading materials just as expressive of identity, as the decision to use or withhold
one’s name” (ibid.,1012).
63. See Lessig, “Translating Federalism,” 125.
64. See Olmstead v United States 277 US 438, 474 (1928) ( Justice Louis Brandeis dissenting: “Can it be that the Constitution affords no protection against such invasions of individual security?”).
65. Peter Huber relies explicitly on the high costs of control in his rebuttal to Orwell’s
1984; see Orwell’s Revenge: The 1984 Palimpset (New York: Maxwell Macmillan International,
1994). But this is a weak basis on which to build liberty, especially as the cost of networked
control drops. Frances Cairncross ( The Death of Distance: How the Communications Revolu tion Will Change Our Lives [Boston: Harvard Business School Press, 1997], 194–95) effectively challenges the idea as well.
66. Washington, Writings of Thomas Jefferson, 6:180–81.
67. A founding work is David Lange, “Recognizing the Public Domain,” Law and Con temporary Problems 44 (1981): 147. There are many imp ortant foundations, however, to thisargument. See, for example, Benjamin Kaplan, An Unhurried View of Copyright (New York:
Columbia University Press, 1967). Gordon (“Fair Use as Market Failure”) argues that the
courts should employ fair use to permit uncompensated transfers that the market is incapableof effectuating; see also Wendy J. Gordon, “On Owning Information: Intellectual Property
and Restitutionary Impulse,” Virginia Law Review 78 (1992):149. In “Reality as Artifact: From

notes269

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 Re view 57 [1990]:1009) is a discussion of the ability of copyright holders to deny access to critics and others; see also Wendy Gordon, “An Inquiry into the Merits of Copyright: The
Challenges of Consistency, Consent, and Encouragement Theory,” Stanford Law Review 41(1989): 1343.
68. In addition to Boyle, I have learned most from Keith Aoki, Yochai Benkler, Julie Cohen, Niva Elkin-Koren, Peter Jaszi, Mark Lemley, Jessica Litman, Neil Netanel, Margaret
Radin, and Pam Samuelson, but no doubt I have not read widely enough. See, for example,
Keith Ao k i ,“ Foreword to Innovation and the Information Environment: Interrogating theEntrepreneur,” Oregon Law Review 75 (1996): 1; in “(Intellectual) Property and Sovereignty,”
Aoki discusses the challenges to the traditional concept of property that arise from thegrowth of digital information technology; in “Authors, Inventors, and Trademark Owners:
Private Intellectual Property and the Public Domain” (Columbia-VLA Journal of Law and theArts 18 [1993]: 1), he observes the shifting boundaries in intellectual property law between“public” and “private” realms of information and argues that trends to increase the numberof 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 underlying American copyright traditions; he also argues thatrecent expansion of trademark law has allowed trademark owners to obtain property rights
in their trademarks that do not further the Lanham Act’s goal of preventing consumer confusion. Benkler, “Free as Air to Common Use”; Yochai Benkler, “Overcoming Agoraphobia:
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 SelfHelp,” Berkeley Technology Law Journal 13 (1998): 1089; Julie E. Co h en ,“ Lochner in Cyberspace: The New Economic Orthodoxy of ‘Rights Management,’” Michigan Law Review 97(1998):462; Julie E. Cohen, “Some Reflections on Copyright Management Systems and Laws
Designed to Protect Them,” Berkeley Technology Law Journal 12 (1997): 161,181–82; Julie E.
Cohen, “Reverse-Engineering and the Rise of Electronic Vigilantism: Intellectual Property
Implications of ‘Lock-Out’ Programs,” Southern California Law Review 68 (1995): 1091. Niva
Elkin-Koren, “Contracts in Cyberspace: Rights Without Laws,” Chicago-Kent Law Review 73(1998); Niva Elkin-Koren, “Copyright Policy and the Limits of Freedom of Contract,” Berke ley 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 inCyberspace,” 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]:
3 4 5 ,3 9 0 – 9 9 ) ,E l k i n - Koren analyzes the problems created by applying copyright law in a digitized environment. In “Goodbye to All That–A Reluctant (and Perhaps Premature) Adieu toa Constitutionally Grounded Discourse of Public Interest in Copyright Law” (Vanderbilt
Journal of Transnational Law 29 [1996]: 595), Peter A. Jaszi advocates the development ofnew, policy-grounded arguments and constitutionally based reasoning to battle expansionist legislative and judicial tendencies in copyright to diminish public access to the “intellectual com m on s” ;s ee also Peter A. Jaszi, “On the Author Effect: Contemporary Copyright andCollective Creativity,” Cardozo Arts and Entertainment Law Journal 10 (1992): 293, 319–20;
Peter A. Jaszi, “Toward a Theory of Copyright: The Metamorphoses of ‘Authorship,’” Duke
Law Journal 1991 (1991): 455. On the misuse of copyright, see Lemley, “Beyond Preemption”; Mark A. Lemley, “The Economics of Improvement in Intellectual Property Law,” Texas
Law Review 75 (1997): 989, 1048–68; in “Intellectual Property and Shrink-wrap Licenses”(Southern California Law Review 68 [1995]: 1239, 1239), Lemley notes that “software ven-

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dors 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 into a license by so designating it. In her view, article
2B is “confusing and confused”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 environment (see “Reforming Information Law in Copyright’s Image,” Dayton Law Review 22 [1997]: 5 8 7 ,5 9 0 ) , “copyright doctrine is ill-adapted toaccommodate 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 Litm a n ,“ Revising Copyright Law for the
Information Age,” Oregon Law Review 75 (1996): 19; and “The Exclusive Right to Read”(Cardozo Arts and Entertainment Law Journal 13 [1994]: 2 9 ,4 8 ) , in which Litman states that“much of the activity on the net takes place on the mistaken assumption that any materialon the Internet is free from copyright unless expressly 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 beboo k s ,s on gs , sculptures, buildings, computer programs, paintings or films” [236,n.5]); shealso discusses why copyright law is counterintuitive to the authorship process. See also “ThePublic Domain” (Emory Law Journal 39 [1990]: 965, 969), in which Litman recommends a
broad definition of the public domain (“originality is a keystone of copyright law” [974]).
Neil Weinstock Netanel, “Asserting Copyright’s Democratic Principles in the Global Arena,”
Vanderbilt Law Review 51 (1998): 217, 232 n.48, 299 n.322; Neil Netanel, “Alienability Restrictions and the Enhancement of Author Autonomy in United States and Continental
Copyright Law,” Cardozo Arts and Entertainment Law Journal 12 (1994): 1, 42–43; in“[C]opyright and a Dem oc ra tic Civil Society” (Yale Law Jou rn a l 106 [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 enhancethe democratic character of society.”Margaret Jane Radin and Polk Wagner, “The Myth ofPrivate Ordering: Rediscovering Legal Realism in Cyberspace,” Chicago-Kent Law Review 73(1998); Margaret Jane Radin, Reinterpreting Property (Chicago: University of Chicago Press,
1993),56–63. Pam Samuelson,“Encoding the Law into Digital Libraries,” Communications of
the ACM 41 (1999): 13, 13–14; Pamela Samuelson, foreword to “Symposium: Intellectual
Property and Contract Law for the Information Age,” California Law Review 87 (1998): 1;
Pamela Sa mu el s on 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 Sa mu el s on ,“ In tellectual Property Rights in Data?,”Vanderbilt Law Review 50 (1997): 5 1 ,8 4 – 9 5 ; Samuelson, “The Copyright Grab,” 134; Pamela
Sa mu el s on ,“ Fair Use for Computer Programs and Other Copyrightable Works in Digital
Form: The Implications of Sony, Galoob and Sega,” Journal of Intellectual Property Law 1(1993): 49.
69. For a recent and compelling account of the general movement to propertize information, see Debora J. Halbert, Intellectual Property in the Information Age: The Politics of Ex panding Ownership Rights (Westport, Conn.: Quorum, 1999). Seth Shulman’s Owning the
Future (Boston: Houghton Mifflin,1999) gives the story its appropriate drama.
70. “We favor a move away from the author vision in two directions; first towards recognition of a limited number of new protections for cultural heritage, folkloric productions,and biological ‘know-how.’ Second, and in general, we favor an increased recognition andnotes271

protection 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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E L E V E N

1. For a comprehensive account of the American protections for privacy, as well as a comparison with European protections,see Peter P. Swire and Robert E.Litan, None of Your Busi ness: World Data Flows, Electronic Commerce, and the European Privacy Directive(Washington, D.C.: Brookings Institution Press, 1998).I have drawn from Phil Agre’s historical framing of the question in “Beyond the Mirror World: Privacy and the Representational
Practices of Computing” (in Technology and P rivacy: The New Landscape, edited by Philip E.
Agre and Marc Rotenberg [Cambridge, Mass.:MIT Press,1997],29) in building the argumentof this chapter.
2. MIT Professor Hal Abelson,interview with the author, Newton, Mass., May 29,1999.
3. Swisher cites an estimate that AOL earned $7 million per month in the spring of 1996
from sex chat; Aol.com, 226.
4. See M. Ethan Katsh, Law in a Digital World (New York: Oxford University Press,1995),
228.
5. Obviously, this concern is not new. Alan Westin’s work in the early 1970s was foundational in raising awareness about the relationship between computers and privacy; see Alan F.
Westin and Michael A. Baker, Databanks in a Free Society (New York:Quadrangle Books,1972).
6. See Olmstead v United States, 277 US 438 (1928).
7. For a comprehensive treatment of the legal issues raised by cases of surveillance, see
Christopher Slobogin, “Technologically Assisted Physical Surveillance: The American Bar Association’s Tentative Draft Standards,” Harvard Journal of Law and Technology 10 (1997): 383.
8. Communication attributes can be defined as “encompass[ing] all of the other information that can be learned about a communication, such as when and where it occurred, towhom and fr om whom it was sent and how long it lasted”; Susan Freiwald,“Uncertain Privacy: Communication Attributes After the Digital Telephony Act,” Southern California Law
Review 69 (1996):949,951. Freiwald argues that new technology has increased the amount ofcommunication attributes that can be stored and retrieved,thus rendering this data highly informative and extremely intrusive (951–52).
9. For instance, USA Today reported in “The Hunt for bin Laden” (August 21, 1998,A1)
that “the supersecret National Agency in Fort Meade, Md.,uses computers to scan tapped international phone calls”; see also “Cash-and-Carry Diplomacy” (Time, February 24, 1997,
22ff.), which mentions that the National Security Agency monitors communications like international phone calls and electronic messages.
10. Lew Platt, keynote address at Spring Internet World ’98, March 11, 1998, available at
http://www.hp.com/financials/textonly/personnel/ceo/keynote98.html (visited May 30, 1999).
David Brin reports that Kodak can do the same in fifty bytes; The Transparent Society, 241.
11. Michael Kemp, “Centurion to Fight Crooks; ‘Thinking’ Spy Camera Could Put an End
to Car Crimes,” Daily Mail (London), May 20,1995, 49; “Centurion” is a “real-time recognition and identification of number plates system” that “allows comparison of license plateswith user databases.”
12. See, for example,the reports in George Cole, “Smart Building Looks Sharp” (Financial
Times [London], November 2, 1995,14), on a Japanese company that uses a video camera license plate scanner to control access to a garage and image-processing technology in the staff
cafeteria in conjunction with an automatic till operator; in Bill Dawson,“Polluters Beware:

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Laser to Pick Out Foulest Tailpipes; Thousands of Commuters’ Cars Will Be Checked As They
Pass By” (Houston Chronicle, October 6,1998,A1), on a new Houston program to catch “grosspolluters” using a combination of laser technology and video cameras; in Tom Godfrey,“Canada Customs to Border on Hi-Tech” (Toronto Sun, July 20,1997, 16), on an experimental system being tested by Canadian customs to automate border crossings by using voicerecognition, fingerprint and eye scanners,and real-time video cameras and license plate readers; and in Alex Salkever, “Too Many Unse en Cameras?” (Christian Science Monitor, June 5,
1998, 1), on Honolulu’s installation of “video cameras at key points along a main thoroughfare to help catch petty thieves and prevent prostitution.”
13. See Center for Democracy and Technology, “Filing Before the FCC in the Matter of
the Communications Assistance for Law Enforcement Act,CC docket no. 97–213,” December
14,1998,http://www.cdt.org//digi_tele/filing121498.html.
14. See Minnesota v Dickerson, 508 US 366, 381 (1993) (Justice Antonin Scalia concurring).
15. See, for example, William J. Stuntz,“Privacy’s Problem and the Law of Criminal Procedure,” Michigan Law Review 93 (1995):1016,1026;in “The Substantive Origins of Criminal
Procedure,” Stuntz discusses the origins of the Fourth Amendment.
16.Stuntz,“Privacy’s Problem and the Law of Criminal Procedure,” 1026.
17. Alien and Sedition Acts of 1798, Act of June 18, 1798, ch .5 9 , 1 Stat. 566 (repealed 1802),
Act of June 25, 1798, ch .6 3 , 1 Stat. 570 (expired); Act of July 6, 1798, ch .7 0 , 1 Stat. 577 (expired),
Act of July 14, 1798, ch .7 7 , 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, ofcourse, by then their terms they had expired. See Neal Devins, Constitutional Values (Baltimore:
Johns Hopkins University Press,1996), on overruling (13); and James Morton Smith, Freedom’s
Fetters: The Alien and Sedition Laws and American Civil Liberties (Ithaca,N.Y.: Cornell University Press,1956), on the history, enforcement, and impact of the Alien and Sedition Acts.
18. Stuntz, “Substantive Origins,”395.
19. See Cass R. Sunstein,“Incompletely Theorized Agreements,” Harvard Law Review 108(1995): 1733, 1735–36.“Participants in legal controversies,” Sunstein observes, “. . . need notagree on fundamental principle. . . . When they disagree on an abstraction, they move to alevel of greater particularity. The distinctive feature of this account is that it emphasizes
agreement on (relative) particulars rather than on (relative) abstractions.”
20. There is a growing literature that is rethinking the implications of that choice.David
Brin’s The Transparent Society is among the most arresting; he argues for a fundamental shift
in our conception of privacy (see my discussion of Brin in chapter 10). Amitai Etzioni’s The
Limits of Privacy (New York: Basic Books,1999) is closer to the ground, working through thebalance that privacy choices demand. Although I have problems with some of the specifics inEtzioni’s account, his method is right, and some of his conclusions (in particular about theuse of data by commercial entities) are extremely strong. The great strength of the book,however, is that it engages these questions of value from a contemporary perspective. I do nothave much of a taste for the communitarianism in his account, but the value in such a work
is its power to generate argument.
21. The law thinks about it as a question of “information privacy.” The Constitution hasvery little time for the idea; see Albert W. Alschuler, “Interpersonal Privacy and the Fourth
Amendment,” Northern Illinois University Law Review 4 (1983): 1; see also Priscilla M. Regan,Legislating Privacy: Technology, Social Values, and Public Policy (Chapel Hill: University of North
Carolina Press,1995):69–108; Paul M. Schwartz,“Privacy and Participation: Personal Information and Public Sector Regulation in the United States,” Iowa Law Review 80 (1995): 553.
22. And they do not come from Janna Malamud Smith’s “fallacy of perspective,” discussed
by David Brin (The Transparent Society, 68–70). My argument is not that privacy thrived in
the past; it is that privacy was different in the past, and that the construction of searchable

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databases constitutes a different sort of threat. We might approach the community of the past
if we adopted a policy of forgetfulness,as Brin explores (247–48). Purging records might well
be a key to a certain kind of liberation.
23. See Gandy, The Panoptic Sort, 66–68. In support of the theory that collectors of voluntarily given data can do whatever they like with that data, some have argued that the primaryconstitutional issue is free speech rather than privacy; once information is freely released, any
restrictions on corporate speech, such as customer lists, should be disfavored (107).
24. Ibid.,87–90. For example,a targeting system that classified neighborhoods according
to thirty-four different descriptors that accounted for 87 percent of the variance in socioeconomic levels across neighborhoods was hugely successful with clients such as Newsweek
and Colgate-Palmolive (88).
25. Peter H. Lewis,“Forget Big Brother,” New York Times, March 19,1998,G1.
26. Brin, The Transparent Society, 8–15.
27. For a good story that effectively summarizes the state of Web advertising, and for a
discussion of how DoubleClick operates and the case study of 3M’s sale of projectors throughthe advertising placement company, see Zina Moukheiber, “DoubleClick Is Watching You,”
Forbes (November 4, 1996): 342; see also http://www.alexa.c om (visit ed May 30, 1999); andhttp://www.spinner.com (visited May 30,1999). Spinner asks you to rate music as you listen
to it (à la Firefly),and Alexa is like DoubleClick but has not caused any of the similar uproar
over privacy. When a user downloads Alexa,it monitors every site (not just ones that display
a certain type of ad) that the user visits.
28. See Federal Trade Commission, “Privacy Online: A Report to Congress,” June 1998,
n.107, available at http://www.ftc.gov/reports/privacy3/toc.htm (visited May 30,1999).
29. See Gandy, The Panoptic Sort, 1–3.
30. Johnson, Interface Culture, 192–205. Andrew Shapiro calls this the “feedback effect”
but argues that it nar rows the range of choices; see The Control Revolution, 113.
31. See, for example, McIntyre v Ohio Elections Commission, 514 US 334,341–43 (1995).
32. See Janai S. Nelson, “Residential Zoning Reg u l a ti ons and the Perpetuation ofApartheid,” UCLA Law Review 43 (1996): 1689,1693–1704.
33. 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 certain areas; and residential classifications that exclude apar tment housing . All such rest rictions significantly increase the cost of housing forlower-income individuals;see ibid.,1699–1700.
34. In 1926 the Supreme Court held zoning to be a valid exercise of local governmental
power. See Village of Euclid v Ambler Realty Company, 272 US 365 (1926) (holding that a state
has the right to separate incompatible uses). Not until the twentieth century were municipalities 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.
35. 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 facially neutral andbased on economic factors (ostensibly to prevent property devaluation), various laws and regulations have resulted in de facto segregation; see Briffault, “Our Localism,” 103–4; Meredith
Lee Bryant, “Combating School Resegregation Through Housing: A Need for a R econceptualization of American Democracy and the Rights It Protects,” Harvard BlackLetter Journal 13(1997): 127, 131–32.
36. See Joel Kosman, “Toward an Inclusionary Jurisprudence: A Reconceptualization of
Zoning,” Catholic University Law Review 43 (1993): 59,77–86, 101–3.
37. See Gordon S. Wood, The Radicalism of the American Revolution (New York: Alfred A.
Knopf,1992),5–8, 271–86.

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38. See Lynne G. Zucker, “Production of Trust: Institutional Sources of Economic Structure,1840–1920,” Research in Organizational Behavior 8 (1986): 53.
39. Price discrimination is the ability to charge different prices for the same good. 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,” Columbia Law Review 83 (1983): 1121, 1132–35; see also
Easterbroo k ,“ In tellectual Property Is Still Property”; Fisher, “Reconstructing the Fair Use
Doctrine,” 1659; but see Janusz A. Ordover et al.,“Predatory Systems Rivalry: A Reply,” Co lumbia Law Review 83 (1983):1150,1158–64.
40. Viviana A. Zelizer, The Social Meaning of Money, 2d ed. (Princeton, N.J.: Princeton
University Press,1994), 94–95 (footnote omitted).
41. It is quite clear that the government’s data encryption standard (DES) is unreliable.
The Electronic Frontier Foundation (EFF), to its great credit,has made it that way. In Crack ing DES: Secrets of Encryption Research, Wiretap Politics, and Chip Design, EFF provides thecode and plans to build a machine that can crack a DES key. As Whitfield Diffie, one of the inventors of public key encryption, writes, “With the appearance of this book and the machine
it represents, the game changes forever. It is not a question of whether DES keys can be extracted by exhaustive search; it is a question of how cheaply they can be extracted and forwhat purposes” (xi). Other standards are increasingly available,and if the move to lib eralize
the regulation of encryption succeeds, powerful encryption technologies will be generally
available (both in the United States and abroad) soon; see Cryptography’s Role in Securing theInformation Society, edited by Kenneth W. Dam and Herbert S. Lin (Washington, D.C.: National Academy Press, 1996). For a discussion of computing technologies that might wellmake these “safer” key systems unsafe (including DNA and quantum computing), see B rin,
The Transparent Society, 280–82.
42. For a discussion o f the law governing compelled disclosure of keys and plaintext, seePhillip R. Reitinger, “Compelled Production of Plaintext and Keys,” University of Chicago Le gal Forum 1996 (1996): 171.
43. See Michael Adler, “Cyberspace, General Searches, and Digital Contraband: The
Fourth Amendment and the Net-Wide Search,” Yale Law Journal 105 (1996): 1093, 1109–10,
1113.
44. Cf.ibid.,1100;see also Brin, The Transparent Society, 158–61 (discussing mutual monitoring).
45. Cf. Froomkin, “The Metaphor Is the Key.”
46. See Joel R. Reidenberg, “Privacy in the Information Economy: A Fortress or Frontier
for Individual Rights?,” Federal Communications Law Journal 44 (1992): 195, 237–38. The
principles account for concern that “the privacy concerns of data collection (including notice,consent, necessity, and accuracy),uses (including associated uses), and the duration of storage require careful consideration” (238, footnotes omitted).
47. For example,the Video Privacy Protection Act (18 USC, § 2701 [1988]) was adopted
in response to outrage over the media’s acquisition of a list of films rented by Judge Robert
Bork at the time of his ill-fated nomination to the Supreme Court.
48. One highly touted system has been TRUSTe. When a web site becomes licensed by
TRUSTe, it has agreed to disclose its information-gathering and dissemination practices(which can be brought up by clicking on the “trustmark”) and pledged that the disclosure isbacked by third-party assurance; see TRUSTe,“Building a Site You Can Believe In,” available
at http://www.etrust.org (visited May 30,1999).
49. See Joseph M. Reagle and Lorrie Faith Cranor, “The Platform for Privacy Preferences,”
Communications of the ACM (February 1999): 48.
50. See ibid.
51. Joseph M. Reagle Jr., “P3P and Privacy on the Web FAQ, Version 2.0.1,” available at
http://www.w3.org/P3P/P3FAQ.html (visited May 30, 1999).

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52. In its current design, the protocol is fairly unwieldy. It also lacks encryption, leaving
user data open to interception; see Kenneth Lee and Gabriel Speyer, “Platform for Privacy
Preferences Project and Citibank” (1998), available at Citibank Advanced Developm en t
Group, “White Paper: Platform for Privacy Preferences Project (P3P) and Citibank” (October
22, 1998), http://www13.w3.org/P3P/Lee_Speyer.html (visited May 30, 1999). The most significant challenge,however, will simply be in implementation. If applications implement P3P
in a way that facilitates simple user control,it could be successful. For a balanced and powerful account of the value of standardized data models,see Agre and Rotenberg, Technology andPrivacy.
53. See Guido Calabresi and A. Douglas Mel a m ed ,“ Property Ru l e s ,L i a bi l i ty Rules, andInalienability: 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 not as to the value of the entitlement. . . . Liability rules involve an additional stage ofstate intervention: not only are entitlements protected, but their transfer or destruction isallowed on the basis of a value determined by some organ of the state rather than by theparties themselves” (1092). Andrew Shapiro discusses a similar idea in The Control Revolu tion, 158–65.
54. Cf. Margaret Jane Radin, Contested Commodities (Cambridge, Mass.: Harvard University Press, 1996); Martha Nussbaum, “Aristotelian Social Democracy,” in Liberalism and theGood, edited by R. Bruce Douglass et al.(New York: Routledge,1990),232.
55.Cf. Margaret Jane Radin,“Property Evolving in Cyberspace,” Journal of Law and Com munications 15 (1996): 509,524–26.
56. See “Privacy Now Campaign,” available at http://www.eff.org/goldkey.html (visited
May 30,1999).
57. See Marc Rotenberg, “Data Protection in the United States: A Rising Tide?,” speech
given at the Nineteenth International Conference of Privacy Data Protection Commissioners,
Brussels, September 17–19, 1997, available at http://www.privacy.fgov.be/conference/
pt1_3.html (visited May 30,1999).
58. Cf. Breyer, “The Uneasy Case for Copyright.”
59. John Perry Barlow, “The Economy of Ideas,” Wired (March 1994), available online at
http://www.wired.com/wired/archive/2.03/economy.ideas.html.

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1. Two excellent examples include Owen M. Fiss, The Irony of Free Speech (Cambridge,
Mass.: Harvard University Press, 1996); and Cass R. Sunstein, Democracy and the Problem ofFree Speech (New York: Free Press,1993).
2. See 47 CFR § 73.658(e) (1998); see also Herbert J. Rotfeld et al., “Television Station
Standards for Acceptable Advertising,” Journal of Consumer Affairs 24 (1990): 392.
3. See Strafgesetzbuch (penal code) (StGB) §§ 130–31, reprinted in German Criminal
Law, vol.1, edited by Gerold Harfst, translated by Otto A.Schmidt (Würzburg: Harfst Verlag,
1989),75–76.
4. Built by industry but also especially by Cypherpunks—coders dedicated to building thetools f or privacy f or the Internet. As Eric Hughes writes in “A Cypherpunk’s Manifesto” (inApplied Cryptography, 2d ed., by Bruce Schneier [New York: Wiley, 1996], 609): We theCypherpunks are dedicated to building anonymous systems. We are defending our privacy
with cryptography, with anonymous mail forwarding systems, with digital signatures, andwith 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
publish our code so that our fellow Cypherpunks may practice and play with it. Our code isfree for all to use, worldwide.

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5. 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
http://www.eff.org/pub/Publications/John_Perry_Barlow/leaving_the_physical_world.article(visited May 30,1999).
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, The Papers and the Papers: An Account of the Legal and Political Bat tle over the Pentagon Papers (New York: Columbia University Press, 1989), 120; cited in
Rudenstine, The Day the Presses Stopped, 92.
12. See ibid., 105.
13. Near v Minnes ota, 283 US 697, 716 (1931); cf. United States v Noriega, 917 F2d 1543
(11th Cir 1990) (affi rming the prior restraint of audiotapes of the defendant’s conversations
with his attorney on the grounds that they might impede his right to a fair trial), cert. denied,
498 US 976 (1990) ( Justice Thurgood Marshall dissenting).
14. See, for example, Organization for a B etter Austin 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. Su ll ivan and Gerald
Gunther: “(1) It is easier for an official to restrict speech ‘by a simple stroke of the pen’ thanby the more cumbersome apparatus of subsequent punishment. . . . (2) Censors will havea professional bias in favor of censorship, and thus will systematically overvalue government interests and undervalue speech. (3) Censors operate more informally than judges
and so afford less procedural safeguards to speakers. (4) Speech suppressed in advancenever reaches the marketplace of ideas at all. (5) When speech is suppressed in advance,t h ere is no empi rical evidence from which to measure its alleged likely harms”; Fi rs t
Amendment Law (New York: 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 commonplace 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 casein 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. Whatshould 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, editedby Peter Irons and Stephanie Guitton (New York: Free Press,1993),173.
17. In a c oncurring 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 resultin direct, immediate, and ir reparable damage to our Nation or its people”; New York Times
Company v United States, 403 US 713,730 (1971) (per curiam). This standard has frequently
been thought to r eflect the position of the Court; see Laurence H. Tribe, American Constitu tional Law (Meneola,N.Y.: Foundation Press,1978), 731; Morton H. Halperin and Daniel N.
Hoffman, Top Secret: National Security and the Right to Know (Washington, D.C.: New Republic Books, 1977),147 n.22; see also Alderman v Philadelphia Housing Authority, 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”).

notes277

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. The Milwaukee Sentinel and Fusion magazine had published articles dealing with similar concepts; see A. DeVolpi et al., Born Sec ret: The H-Bomb, The P rogressive Case, and Na tional Securit y (New York: Pergamon Press, 1981), 102, 106; see also Howard Morland, The
Secret That Exploded (New York: 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 fueltank explosion caused the crash; see “Statement of Jim Hall, Chairman, National Transportation Safety Board,” July 16, 1998, available at http://www.ntsb.gov/pressrel/980716.htm (visited May 30, 1999).
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, The Downing of TWA Flight 800 (New York: Kensington Publishing, 1997), 131–37; Accuracy in Media et al., “TWA 800—Missile Website
Roadm a p,” ava i l a ble at http://www.angel f i re . com/hi/TWA800/ (visited May 30, 1999);
Ma rk K. An ders on , “Friendly Ire,” available at http : / / w w w. va ll eyadvoc a te . com/arti cl e s/twa3.html (visited May 30, 1999); Ian W. Goddard, “TWA Flight 800 and Facts Pertaining
to U.S. Navy Culpability,” available at http://www.erols.com/igoddard/twa-fact.htm (visited
May 30, 1999).
24. See Sanders, The Downing of TWA Flight 800, 29–30, 7 5 ,7 0 – 7 9 , 171–73.
25. We can tell that it is false, of course, as in, “The cat was alive and not alive.”
26. Andrew Shapiro has a powerful analysis of a particularly smart loon; see The Control
Revolution, 133–41.
27. As Shapiro puts it, “What we need are trusted intermediaries: people to whom we entrust certain tasks because we recognize the value of their p erspective, their expertise, theirtime,and their independence”; ibid.,188.
28. See Zucker, “Production of Trust,” 63–65.
29. Obscenity is not constitutionally protected speech, and federal laws prohibit thetransportation 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 pers on ,a pp lying contemporary community standards’
would find that the work ,t a ken as a wh o l e ,a ppeals to the prurient interest; (b) whether thework depicts or describes, in a patently offensive way, sexual conduct specifically 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) (5–4 decision), rehearing denied, 414 US 881 (1973). Porn, on the other hand, is protected by theFirst Amendment but may be regulated to promote the state’s interest in protecting children from harmful materials so long as the regulation is the least restrictive means to further the articulated interest; see Ginsberg v New York, 390 US 629, 637–40 (1968). Childporn may be prohibited as obscene material even if it is not obscene under the Miller test,
owing to the strong state interest in preventing the sexual exploitation of children ;s ee New
York v Ferber, 458 US 747, 764 (1982). Child porn is not constitutionally protected, and federal law prohibits the transportation of child porn; see 18 USCA § 2252 (1984), amended
by 18 USCA §2252 (Supp 1999).
30. Justice Sandra Day O’Connor listed more than forty states with such law in her concurrence in Reno v ACLU, 521 US 844,887 n.2.
31. Ginsberg v New York, 390 US 629 (1968).
32. See Godwin, CyberRights, 206–59.

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notes

33. See Blake T. Bilstad, “Obscenity and Indecency in a Digital Age: The Legal and Political Implications of Cybersmut, Virtual Pornography, and the Communications Decency Act
of 1996,” Santa Clara Computer and High Technology Law Journal 13 (1997): 321,336–37.
34. Marty Rimm,“Marketing Pornography on the Information Superhighway: A Surveyof 917,410 Images, Descriptions, Short Stories, and Animations Downloaded 8.5 Million
Times by Consumers in over 2,000 Cities in Forty Countries, Provinces, and Territories,”
Georgetown University Law Journal 83 (1995):1849.Godwin provides the whole history of theRimm article, describing the most significant problems and consequences of the “misleading”
and “false” statements, and its eventual demise; CyberRights, 206–59; see also Jonathan Wallace and Mark Mangan, Sex, Laws, and Cyberspace (New York: M&T Books,1996), ch.6.
35. See Philip Elmer-DeWitt, “On a Screen Near You: 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.
36. 47 USCA § 223(e)(5)(A) (Supp 1999).
37. The law was extinguished (at least in part) at 521 US 844 (1997); see Eugene Volokh,“Freedom of Speech, Shielding Children, and Transcending Balancing,” Supreme Court Re view 1997 (1997):141.
38. 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 Jonathan Weinberg convincingly argues, Pacifica continues to have influence inthe broadcasting context; “Cable TV, Indecency, and the Court,” Columbia-VLA Journal of
Law and the Arts 21 (1997): 95.
39. See Gentile v State Bar of Nevada, 501 US 1030,1048–51 (1991) (vague regulations ofspeech are void owing to the impermissible risk of chilling speech); Dombrowski v Pfister, 380
US 479,494 (1965) (chilling speech).
40. For a more extensive discussion of this system, see Lawrence Lessig and Paul Resnick,“The Architectures of Mandated Access Controls,” Michigan Law Review (forthcoming, 1999).
41. 47 USC § 230 (Supp 1999). Charles Nesson and David Marglin suggest that the constitutionality of the CDA—and by extension of COPA—will change over time: even if it was
not constitutional initially, technological change may render it constitutional later; seeCharles Nesson and David Marglin, “The Day the Internet Met the First Amendment: Timeand the Communications Decency Act,” Harvard Journal of Law and Technology 10 (1996):
113.
42. See World Wide Web Consortium, “Platform for Internet Content Selection (PICS),”
available at http://www.w3.org/PICS/ (visited October 25,1998).
43. See Diane Roberts, “On the Plurality of Ratings,” Cardozo Arts and Entertainment Law
Journal 15 (1997): 105,113–15.
44. Paul Resnick, “PICS-Interest@w3.org, Moving On,” January 20 1999, available at
http://lists.w3.org/Archives/Public/pics-interest/1999Jan/0000.html (visited May 30, 1999);
Paul Re s n i ck , “ Fi l tering Inform a ti on on the Intern et ,” S ci en tific American 106 (March
1997), also available at http://www.sciam.com/0397issue/0397resnick.html (visited May 30,1999); Paul Re s n i ck ,“ PICS and Intellectual Freedom FAQ,” available at http://www.w3.org/PICS/PICS-FAQ–980126.html (visited May 30, 1999); Paul Resnick and Jim Miller, “PICS:
Internet Access Controls Without Censorship,” Communications of the ACM 39 (1996): 87,
also available at http://www.w3.org/PICS/iacwcv2.htm (visited May 30, 1999); Jim Miller,
Paul Resnick, et al., “PICS 1.1 Rating Services and Rating Systems—and Their MachineReadable Descriptions,” October 31, 1996, available at http://www.w3.org/TR/REC-PICSs ervi ces) (vis i ted May 30, 1999); Tim Krauskopf, Paul Re s n i ck , et al., “PICS 1.1 LabelDistribution—Label Syntax and Communication Protocols,” October 31, 1996, available at
http://www.w3.org/TR/REC-PICS-labels (visited May 30, 1999); Christopher Evans, Paulnotes279

Resnick, et al., “W3C Recommendation: PICS Rules 1.1, REC-PICS, Rules–971229,” Decem ber 29, 1997, available at http : / / w w w. w 3 . or g / T R / R E C - PI C S Rules (visited May 30,1999).
45. See Jonathan Weinberg, “Rating the Net,” Hastings Communications and Entertain ment Law Journal 19 (1997):453, 478 n.108.
46. See, for example, the Center for Democracy and Technology’s endorsement of
parental empowerment through rating systems and blocking software rather than government regulation in “Internet Family Empowerment White Paper,” July 16, 1997, available at
http://www.cdt.org/speech/empower.html (visited May 30, 1999); a similar point of view isfound in Esther Dys on ,“ Release 1.0: Labels and Disclosure,” December 1996, available at
http://www.edventure.com/release1/1296body.html (visited May 30,1999).
47. This claim, of course,is too strong. The site could block deceptively, making it seem as
if the user were gaining access but actually not giving her access to what she believes she isgaining access to.
48. See Richard Thompson Ford (“The Boundaries of Race: Political Geography in Legal
Analysis,” Harvard Law Review 107 [1994]: 1841, 1844), who asserts that jurisdictionalboundaries perpetuate racial segregation and inequality; Gerald E. Frug (“Universities andCities,” 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.
49. 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 authoritative selection’”).
50. See Fiss, The Irony of Free Speech, 3, 37–38; Sunstein, Democracy and the Problem ofFree Speech, xvi–xx. Andrew Shapiro’s powerful analysis of Sunstein’s point is better tuned to
the realities of the Net; see The Control Revolution, 107–12.
51. Ithiel de Sola Pool, Technologies Without Boundaries: On Telecommunications in a
Global Age, edited by Eli M. Noam (Cambridge, Mass.: Harvard University Press,1990),15.
52. See Geoffrey R.Stone,“Imagining a F ree Press,” Michigan Law Review 90 (1992):1246,
1264.
53. But see Thomas G. Krattenmaker and L.A. Powe Jr. (“Converging First Amendment
Principles for Converging Communications Media,” Yale Law Jou rn a l 104 [1995]: 1719,1735), who argue that First Amendment principles urge that consumers,not the government,
control the content they consume in the area of emerging media technologies; Sunstein (“TheFirst Amendment in Cyberspace,” Yale Law Journal 104 [1995]: 1757, 1765) contends thatemerging media t echnologies produce new areas for applying old M adisonian First Amendment principles.
54. For an early and ext raordinary work that struggles with the complexity of the question about which information you should be able to own, see Anne Wells Branscomb, Who
Owns Information?: From Privacy to Public Access (New York: Basic Books, 1994). My conclusions are different from hers, but I agree with her insight that “ownership” cuts across different kinds of information in different ways. James Boyle advances a similar theme in Shamans,
Software, and Spleens.
55. See 47 CFR § 73.277 (1998).
56.47 USCA §§ 81–119 (1927) (repealed by the Communications Act of 1934).
57. 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

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notes

(1943). Thomas Hazlett makes a powerful critique of Frankfurter’s history of the emergenceof any necessity for FCC regulation; see Physical Scarcity.
58. See Turner Broadcasting System, Inc. v Federal Communications Commission, 512 US
622,637–38 (1997);see also Huber, Law and Disorder in Cyberspace.
59. See National Broadcasting Company, Inc. v Columbia Broadcasting System, 213.
60. See Huber, Law and Disorder in Cyberspace, 28–34. The dominant voice in this debate
is Thomas W. Hazlett, who has argued strongly against the licensing regime for spectrum andin favor of a property auction. His work on the history of the Radio Act is particularly good;see, for example, “Assigning Property Rights to Radio Spectrum Users: Why Did FCC License
Auctions Take Sixty-seven Years?,” Journal of Law and Economics 41 (1998): 529; “Oak Leaves
and the Origins of the 1927 Radio Act: Comment,” Public Choice 95 (1998): 277; “PhysicalScarcity, Rent Seeking, and the First Amendment,” Columbia Law Review 97 (1997):905; “TheRationality of U.S. Regulation of the Broadcast Spectrum,” Journal of Law and Economics 33(1990): 133; Thomas W. Hazlett and David Sosa, “Was the Fairness Doctrine a ‘Chilling Effect’?: Evidence from the Postderegulation Radio Market,” Journal of Legal Studies 26 (1997):
279. For another historical account, see Morton I. Hamburg and Stuart N. Brotman, Com munications Law and Practice, vol. 1 (New York: Law Journal Seminars–Press, 1995), 5–8.
Ithiel de Sola Pool was an early advocate of a position close to Hazlett’s;see Technologies With out Boundaries, 108–88.
61. See Ronald H. Coase, “The Federal Communications Commission,” Journal of Law
and Economics 2 (1959): 1.
62. See Patrick M. Garry, Scrambling for Protection: The New Media and the First Amend ment (Pittsburgh: University of Pittsburgh, 1994),97–106.
63. There is an important argument supporting a different treatment for the “press” under the First Amendment, though the Supreme Court has not yet developed this distinctive
jurisprudence. Justice Potter Stewart sketched some of the potential in “Or of the Press”(Hastings Law Journal 26 [1975]: 631), and his argument takes on a new significance in thecontext of the Internet. For a persuasive account,see Garry, Scrambling for Protection, 107–21.
64. See Hazlett, Physical Scarcity, 911–12; Anna Couey, “The Birth of Spread Spectrum,”available at http://www.sirius.be/lamarr.htm (visited May 30, 1999); Jack Glas, “The Principles of Spread Spectrum Communication,” available at http://cas.et.tudelft.nl/~glas/ssc/techn/techniques.html (visited May 30, 1999).One important reason for the shortage ofspectrum is its inefficient use;see de Sola Pool, “Technologies Without Boundaries,” 42–45.
65. Yochai Benkler’s article provides (for lawyers) the most extensive discussion of thetechnology; see “Overcoming Agoraphobia,” 287. He describes the change in technology:“The technological shift derives from various techniques—such as spread spectrum and code
division multiple access, time division multiple access,frequency hopping, and packet switching—for allowing multiple users to communicate at the same time using the same frequency
range. Some of these technologies complement each other; some conflict with each other.
What is crucial to understand about these t echnologies is that they challenge the underlying
assumption of both licensing and privatization:that the only way to assure high quality wireless communications is to assign one person the right to transmit in a given frequency
band”(324, footnote omitted). The appendix to his article then describes the related technologies,including spread spectrum (395), time division multiple access (TDMA) (397),and
frequency hopping (399). For a discussion of code division multiple access and frequency division multiple access,see Ted Stevens,“Regulation and Licensing of Low-Earth-Orbit Satellites,” Santa Clara Computer and High Technology Law Journal 10 (1994): 401.
66. Ethernet literally functions like this. Data on an Ethernet network are st reamed into
each machine on that network. Each machine sniffs the data and then pays attention to thedata intended for it. This process creates an obvious security hole: “sniffers” can be put onnotes281“promiscuous mode” and read packets intended for other machines; see Loshin, TCP/IP
Clearly Explained, 44–46.
67. See Yochai Benkler and Lawrence Lessig, “Net Gains,” New Republic, December 14,
1998.
68. The founder of this argument must be Eli Noam;see “Spectrum Auctions: Yesterday’s
Heresy, Today’s Orthodoxy, Tomorrow’s Anachronism—Taking the Next Step to Open Spectrum Access,” Journal of Law and Economics 41 (1998): 765. Benkler has spiced it up a bit (inmy vie w, in critical ways) by adding to it the value of the commons. For an extraordinarily
powerful push to a similar political (if not technological) end,see Eben Moglen, “The Invisible Barbecue,” 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 Gilded Age’s allocation of benefits and privileges associated with the railroad industry.

C H A P T E R

F O U R T E E N

1. See Stephen Holmes, “What Russia Teaches Us Now; How Weak States Threaten Freedom,” American Prospect (July-August 1997): 30.
2. See Restatement (Third) Of Foreign Relations Law (1986),§ 402(2) and comment (e).
3. 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 UnitedStates Safeguard the Rights of Children as Mandated by International Law?,” Fordham Inter national Law Journal 18 (1995):1852,1902–12.
4. See Bill Grantham, “America the Menace: France’s Feud With Hollywood,” World Policy
Journal 15,no. 2 (Summer 1998): 58; Chip Walker, “Can TV Save the Planet?,” American De mographics (May 1996): 42.
5. These are among the most watched television shows in the world;see Henry Goldblatt,“The Universal Appeal of Schlock,” Fortune, May 12,1997,32.
6. Akhil Reed Amar, “Of Sovereignty and Federalism,” Yale Law Journal 96 (1987): 1425,
1430–31.
7. U.S. Constitution,art.VI, cl.2.
8. See, for example,David R. Johnson and David Post,“Law and Borders: The Rise of Law
in Cyberspace,” Stanford Law Review 48 (1996): 1367,1369–76.
9. Ibid.,1379–80.
10. See Jack L. Goldsmith, “Against Cyberanarchy,” University of Chicago Law Review 65(1998): 1199; Jack L. Goldsmith, “The Internet and the Abiding Significance of Territorial
Sovereignty,” Indiana Journal of Global Legal Studies 5 (1998): 475; see also David Johnston, Sunny Handa, and Charles Morgan, Cyberlaw: What You Need to Know About Doing
Business Online (Toron to : Stod d a rt , 1997), ch. 10. Allan R. Stein (“The Unexcepti on a l
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.
11. See Litman,“Revising Copyright Law for the Information Age,” 38–39.
12. Ibid.
13. As Katie Hafner and Matthew Lyon put it: “The best hackers were professionals.
Meddlesome and malicious network users, of which there were virtually none at the outset,
were first referred to as ‘n et work randoms’ or ‘net randoms’ or just plain ‘randoms.’ Itwould be another decade before hacking was given a bad name”; Where Wizards Stay Up
Late, 190.

282

notes

14. Cf. Bruce Sterling, The Hacker Crackdown: Law and Disorder on the Electronic Frontier(New York: Bantam Books,1992),55–57.
15. See Kaare Christian and Susan Richter, The UNIX Operating System, 3d ed. (NewYork: Wiley, 1994),5–8.
16. See, for example, Allen H. Lipis et al., Electronic Banking (New York: Wiley,
1985),159–87.
17. Examples include the hacking of the Defense Department computers by the GermanPeter Ca rl , and then an authorized break-in to dem on s trate the vulnerability; see Ka ti e
Hafner and John Markoff, Cyberpunk: Outlaws and Hackers on the Computer Frontier (NewYork: Simon & Schuster 1991),173–79,266.
18. Morris’s father, Robert Morris Sr., was the NSA’s expert on data security at the time;
see ibid.,253–341.
19.A commercial version of the software is not free,and of course,that version includes
updates to correct for “bugs.”
20. See Computer Fraud and Abuse Act,18 USC § 1030(a)(5)(A) (1988) (current version
at 18 USC § 1030[a][5][A] [1994],amended by 18 USC 1030[a][5][A] [Supp II 1996]).
21. United States v Morris, 928 F2d 504, 506 (2d Cir 1991).
22. Julian Dibbell, “The Prisoner: Phiber Optik Goes Directly to Jail,” Village Voice, January 12,1994, available at http://www.levity.com/julian/phiber.html (visited May 30,1999).
23. See United States v LaMaccia, 871 FSupp 535 (DMass 1994);see also Mitchell Zuckoff,“Software Piracy Charges Dismissed Against Student,” Boston Globe, December 30, 1994, 1;
United States v LaMaccia, memorandum of decision and order on defendant’s motion to dismiss, December 28,1994,http://photo.net/dldf/dismiss-order.html (visited May 30,1999).
24. See Steve Jackson Games, Inc. v U.S. Secret Service, 36 F3d 457 (5th Cir 1994); see also
Joe Abernathy, “Trial Set This Week in Computer Case; Publisher Sues Secret Service,” Hous ton Chronicle (January 18,1993),13; Steve Jackson Games v U.S.Secret Service, complaint, May
1, 1991, available at http://www.eff.org/pub/Legal/Cases/Inc./SJG/complaint.sjg (visited May
30,1999).
25. Nevertheless,there is arguably something of a revival among hackers—as distinct from“crackers”—at least among new hackers who emphasize political or social ends; see, for example, Jim Kerstetter, “A Reprieve for ‘Ethical Hacking,’” PC Week Online, July 20, 1998, available at
http://www.zdnet.com/zdnn/stories/zdnn_display/0,3440,337644,00.html (visited May 30,1999); Alex Wellen,“‘Cracker’ Term Gains Acceptance by Media,” ZDTV, May 19, 1998, available
at http://www.zdnet.com/zdnn/content/zdtv/0519/317307.html (visited May 30, 1999).
26. See Alan Schwartz, “The Default Rule Paradigm and the Limits of Contract Law,”Southern California Interdisciplinary Law Journal 3 (1993):389.
27. See Goldsmith, “Against Cyberanarchy,” 1205–12.
28. ProCD, Inc. v Zeidenberg, 86 F3d 1447,1453–55 (7th Cir 1996).
29. “The landowner’s right to exclude [is] ‘one of the most essential sticks in the bundleof rights that are commonly characterized as property’”; Loretto v Teleprompter Manhattan
CATV Corporation, 458 US 419,433 (1982) (quoting Kaiser Aetna v United States, 444 US 164,
176 [1979]); see also Cape Cod Nursing Home Council v Rambling Rose Rest Home, 667 F2d
238 (1st Cir 1981) (organizations seeking access to rest home to inform residents of services
they provided could be excluded); Asociacion Trabajadores Agricolas de Puerto Rico v Green
Giant Company, 518 F2d 130 (3d Cir 1975), (company-owned camp for migrant workers
could exclude union officials); cf. Kaiser Aetna v United States, 444 US 164 (1979) (requiring
public access to a private marina was a taking).
30. See, for example, Laguna Publishing Company v Golden Rain Foundation, 131 CAL
App3d 816, 845, 182 Calif Rptr 813 839 (1982) (noting that the only means for competitorsof a community newspaper to distribute samples was through the mail); Guttenberg Tax payers and Rentpayers Association v Galaxy Towers Condominium Association, 297 NJSuper
404, 410–11, 688 A2d 156, 159 (NJSupCtChDiv) aff ’d 297 NJSuper 309, 688 A2d 108 (NJ-

notes283

SupCtAppDiv 1996) (noting that the plaintiffs, who were seeking to distribute political materials to condominium residents, had only the inadequate alternative of distributing theirmaterials through the mail).
31. The reader may wonder whether this kind of cyberspace relationship is more than“phone sex.” Yes. The intensity of this form of exchange is wildly beyond the panting of a telephone lover; see Julian Dib bell,“Keys to the Kingdom: Cryptography, the Black Art of Spies
and Diplomats, Moves Center Stage on the Net,” Time, November 11,1996,TD38ff.“But it isalso incontrovertible proof that some kinds of arithmetic can reach meaningfully into ourlives at every point on the spectrum of human experience—in our political contests, in our
economic dealings and,as anyone who has used the office computer to E-mail a lover can attest,in the most intimate recesses of our emotional affairs.”
32. Timothy S. Wu has a more careful and balanced picture of the conditions under whichsovereignty might exist; see “Cyberspace Sovereignty?: The Internet,” Harvard Journal of Law
and Technology 10 (1997):647.
33. David R. Johnson and David G. Post both favor, not no government, but decentralized emergent norms that resist top-down control; see, for example, “And How Shall the Net
Be Governed?: A Meditation on the Relative Virtues of Decentralized ,E m er gent Law,” in Co ordinating the Internet, edited by Brian Kahin and James H. Keller (Cambridge, Mass.: MIT
Press, 1997), 62. I have not addressed the means for governing in cyberspace, except to theextent that the means are implied by an architecture of open code. My primary focus is on
the set of values.
34. See Judith N.Shklar, American Citizenship: The Quest for Inclusion (Cambridge, Mass.:
Harvard University Press, 1991), 25–62; James A. Gardner, “Liberty, Community, and theConstitutional Structure of Political Influence: A Reconsideration of the Right to Vote,” Uni versity of Pennsylvania Law Review 145 (1997): 893; Quiet Revolution in the South, edited by
Chandler Davidson and Bernard Grofman (Princeton,N.J.: Princeton University Press,1994):
21–36.
35. See Lani Guinier, The Tyranny of the Majority: Fundamental Fairness in Representative
Democracy (New York: Free Press, 1994); Richard Thompson Ford,“Beyond Borders: A Partial Response to Richard Briffault,” Stanford Law Review 48 (1996):1173; Richard Thompson
Ford, “Geography and Sovereignty: Jurisdictional Formation and Racial Segregation,” Stan ford Law Review 49 (1997): 1365; Jerry Frug, “Decentering Decentralization,” University of
Chicago Law Review 60 (1993): 253; Jerry Frug, “The Geography of Community,” Stanford
Law Review 48 (1996): 1047.
36. See Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality (New York:
Basic Books,1983).
37. See Charles M. Tiebout, “A Pure Theory of Local Expenditures,” Journal of Political
Economy 64 (1956):416; see also Clayton P. Gillette, Local Government Law: Cases and Mate rials (Boston: Little, Brown,1994),382; Vicki Been,“‘Exit’ as a Constraint on Land Use Exactions: Rethinking the Unconstitutional Con d i ti ons Doctrine,” Columbia Law Review 91(1991): 473, 514–28.
38. See David G. Post, “Governing Cyberspace,” Wayne Law Review 43 (1996):155; David
Post, “The New Electronic Federalism,” American Lawyer (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
http://www.law.cornell.edu/jol/post.html (visited May 30, 1999).
39. See Phillip E. Areeda et al., Antitrust Law, vol.2A (Boston:Little, Brown,1995),85–87.
40. See Post, “Anarchy, State,and the Internet,” 29–30.

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41. This was not quite t rue of MUDing in the past. When the communities were smaller,
there were portals that allowed characters to move from one MUD to another. Famous MUD
characters became well known in many different communities, and it was unethical to takethe name of a well-known MUDer, even from a different MUD. But as the world of MUDinghas grown,the ability to port yourself elsewhere is less meaningful. The communities here aresimply associations,and the associations do not transfer.
42.I am not saying that this situation could not be different. We might imagine regions ofcommunities in cyberspace that facilitate mo ving between communities.I am speaking only
about the space as it is now.
43. See Post, “Anarchy, State, and the Internet,” 82–83, 100.
44. Ibid.,100.
45. See, for example, George A. Bermann, “Taking Subsidiarity Seriously: Federalism in
the European Community and the United States,” Columbia Law Review 94 (1994): 331; Albert Breton et al.,“Decentralization and Subsidiarity: Toward a Theoretical Reconciliation,”
University of Pennsylvania Journal of International Economic Law 19 (1998): 21; Clayton P.
Gillette, “The Exercise of Trumps by Decentralized Governments,” Virginia Law Review 83(1997):1347.
46. See, for example, George A. Bermann, “Subsidiarity and the European Community,”
Hastings International and Comparative Law Review 17 (1993):97, 103,105; Bermann, “Taking Subsidiarity Seriously,” 452–53.
47.Or at least three of the four regions in the early United States shared this history; see
Fischer, Albion’s Seed, 827–28.
48. 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 first Article.” These clauses
state: “(1) The Migration or Importation of such Persons as any of the States now existing shallthink 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.”
49. See John F. Kennedy, Profiles in Courage (New York: Harper, 1956), ch.3.
50. For example, in its development of PICS, the World Wide Web consortium made acommitment to both value and vendor neutrality; see “Platform for Internet Content Selection (PICS),” available at http://www.w3.org/PICS (last modified June 4,1998).
51. See World Intellectual Property Organization, “Final Report of the WIPO Internet
Domain Name Process,” April 30, 1999, forthcoming in hardcover as WIPO Publication No.
92–805–0779–6, available at http://wipo2.wipo.int/process/eng/final_report.html (visited
May 30,1999).
52. Quoted in Brin, The Transparent Society, 218. For an excellent account of the moregeneral question, see A. Michael Froomkin, “The Internet as a Source of Regulatory Arbitrage,” in Borders in Cyberspace: Information Policy and the Global Information Infrastructure,edited by Brian Kahin and Charles Nesson (Cambridge, Mass.: MIT Press, 1997), 129.
Froomkin considers both the technological features of the Net that enable arbitrage and thelimits on arbitrage that we might expect.
53. Ethan Katsh makes a similar point in “Software Worlds and the First Amendment,”
where he argues that legislators will come to understand the plasticity and regulation incode. Tim Wu makes the same point in “Cyberspace and the International System.” For athoughtful account of how a federalist structure in cyberspace might loo k ,s ee Dan L. Burk,“Federalism in Cyberspace,” Connecticut Law Review 28 (1996): 1095. Burk’s analys i s ,m adefrom the perspective of American federalism, is a template for the same questions raised internationally.

notes285

54. Some conceive of constitutional values, for example, as constraints on efficiency; see
Brin, The Transparent Society, 223, quoting Godwin: “Governments have to sacrifice some efficiency to preserve those rights.”

C H A P T E R

F I F T E E N

1. Missouri v Holland, 252 US 416,433 (1920).
2. See, for example, Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of
the Constitution (New York: Alfred A. Knopf, 1996), 289–90; see also Akhil Reed Amar, “TheBill of Rights as a Constitution” (Yale Law Journal 100 [1991]:1131), for another such understanding of the Bill of Rights.
3. This is not to deny that some aspects of the equality delineated in the Civil War amendments 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, “TheNatural 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, forexample,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: Similarities and Differences,” New York 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).
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 El y, Democracy and Distrust: A Theory o f Judicial Review(Cambridge, Mass.: Harvard University Press,1980).
11. I’ve overstated the security of the American judiciary. A recent incident with District Court Judge Harold Baer suggests continued insecurity, especially in the context of thewar on drugs. Baer released a criminal defendant after suppressing a search that had discovered ei gh ty pounds of narco ti c s ; Don Van Natta Jr., “Judge’s Drug Ruling Likely toStand,” New York Times, 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,” New York Times, March 24, 1996, 29. President
Clinton then joined the bandwagon, suggesting that he might ask for Baer’s resignation if
Baer did not reverse his decision; Alison Mitchell, “Clinton Pressing Judge to Relent,” NewYork Times, March 22, 1996, 1. Baer then did reverse his decision; Don Van Natta Jr. ,“ Under Pressure, Federal Judge Reverses Decision in Drug Case,” New York Times, April 2, 1996,
1. Chief Judge Jon Newman, of the Second Circuit Court of Appeals, along with otherjudges, then criticized Dole’s criticism of Baer, arguing that he went “too far”; Don Van
Natta Jr. ,“ Ju d ges Defend a Colleague from Attacks,” New York Times, March 29, 1996, B1.
Soviet citizens would recognize the pattern.
12. I describe the Court’s conception of its role in more detail in Lessig, “Translating Federalism.”
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, The Commerce Clause Under Marshall, Taney, andWaite (Chapel Hill: University of North Carolina Press,1937): 82.

notes286

15. The relationship between a c ontested ground and a political judgment is more complex than this suggests. I discuss it more extensively in Lawrence Lessig, “Fidelity and Constraint,” 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. Fischer (Albion’s Seed) shows how town planning in the United States followed habitsin Europe.
20. David P. Currie, The Constitution of the Federal Republic of Germany (Chicago: University of Chicago Press,1994),182–87.
21.This is the system that associates a name on the Internet (for example, “cyber.law.harvard.edu”) with an Internet protocol address (for example,128.12.12.01). People register domain names,now primarily through a company called Network Solutions. Their name,if it isavailable, is then associated with a particular server.
22. Payne v Tennessee, 501 US 808,844 (1991) (Justice Thurgood Marshall dissenting).
23. In 1999 it was revealed that with some versions of Microsoft Word a unique identifier
was embedded in Word documents. Microsoft subsequently provided an upgrade to remove
the identifier data.

C H A P T E R

S I X T E E N

1. Deborah Hellman,in “The Importance of Appearing Principled” (Arizona Law Review
37 [1995]: 1107), describes the illegitimacy costs that courts incur when they overrule precedents 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 Richard A. Posner, The Problems of Jurisprudence (Cambridge, Mass.: Harvard University Press,1990),300–301.
4. I am grateful to Viktor Mayer-Schönberger for demonstrating this point to me. Hal
Abelson points out that the components would have to be 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. Mark A. Lemley and David W. O’Brien,“Encouraging Software Reuse,” Stanford Law
Review 49 (1997): 255.
6. For an extraordinary account of the damage done by copyright law to software development, see Mark Haynes,“Black Holes of Innovation in the Software Arts,” Berkeley Tech nology Law Journal 14 (1999): 503.
7. Kennedy, Profiles in Courage, 71.
8. Negroponte, Being Digital, 238.
9. See Buckley v Valeo, 424 US 1 (1976) (striking campaign finance reform under the First
Amendment).
10. See, for example, James S. Fishkin, The Voice of the People (New Haven, Conn.: Yale
University Press,1995).
11. 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?,” Berkeley Technology Law
Journal 12 (1997): 413. As he describes it, the possibility of self-governance depends impor-notes287

tantly on architectural features of the Net—not all of which are developing in ways that wil lsupport democracy; see also Shapiro (The Control Revolution, 150–57,217–30), who discusses“push-button politics” and tools of democracy.
12. Alexis de Tocqueville, Democracy in America, vol. 1 (New York: Vi n t a ge , 1990),
284–85.

C H A P T E R

S E V E N T E E N

1. In “Accountability in a Computerized Society” (Science and Engineering Ethics 2 [1996]:25), Helen Nissenbaum discusses the erosion in accountability within computerized societies,
including accountability about code itself.
2. Andrew L. Shapiro, “The Disappearance of Cyberspace and the Rise of Code,” Seton
Hall Constitutional Law Journal 8 (1998): 703,721.

A P P E N D I X

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 LutherKing, Jr. Within 10 days before the birthday of Dr. Martin Luther King, Jr., in each year theGovernor shall issue a proclamation announcing the holiday and designating the official
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).
4. See Robert Cooter, “Expressive Law and Economics,” Journal of Legal Studies 27 (1998):
585.
5. Cf. Paul N. Bracken, The Command and Control of Nuclear Forces (New Haven, Conn.:
Yale University Press,1983),179–237; Christopher Chant and Ian Hogg, The Nuclear War File
(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 Daniel Ford, The
Button: The Nuclear Trigger—Does It Work? (London: Allen & Unwin,1985), 118–21.
7. “The phenomena of social meaning and incommensurability constrain rational choice(individual and collective). Generalizing, it is irrational to treat goods as commensurable
where 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 goodcolleague within an academic community to offer another scholar cash instead o f commentson her manuscript. Against the background of social norms, the comment’s signification ofrespect 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 Structural Approach to Adjudicating the New Law Merchant,” University of Pennsylvania Law Review 144 (1996): 1643, 1662;
Robert D. Cooter, “The Theory of Market Modernization of Law,” International Review of Law
and Economics 16 (1996):141,153. By internalization, Cooter is just describing the same sortof subjectivity that happens with the child and fire: the constraint moves from being an o b-

288

notes

jectively ex post constraint to a subjectively ex ante constraint. The norm becomes a part ofthe person, such that the person feels its resistance before he acts, and hence its resistancecontrols his action before he acts.Once internalized,norms no longer need to be enforced tohave 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. Someinternalization 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 the Virtuous,” Michi gan Law Review 96 (1997): 127.
10. See, for example,Schuster et al., Preserving the Built Heritage; Peter Katz, The New Ur banism: Toward an Architecture of Community (New York: McGraw-Hill, 1994); Duany and
Plater-Zyberk, Towns and Town-Making Principles.
11. Michael Sorkin, Local Code: The Constitution of a City at 42˚N Latitude (New York:Princeton Architectural Press,1993), 11,127.

I N D E X

Abortion, 95, 96–97, 118
Abrams, Floyd, 168, 170
Accountability, 96, 153, 199
Ackerman, Bruce, 59
Advertising, 153–54, 198
African Americans, 98, 214
Agency, 237
Agreements, incompletely theorized, 149
Airline industry, 92, 155, 158–59, 171–72
Airplane crashes, 171–72. See also Airline
industry
Airport security, 158–59. See also Airline
industry
Alcohol, 91
Algorithms, 39–40
Alien and Sedition Acts, 148
Amazon.com, 31, 34
Ambiguity, latent, 22–23, 110, 119–20, 223;
in agreements, 149; and codifying
constitutions, 215; and democracy,
227; and free speech rights, 181; andsovereignty, 191; and translation,
211–12
American Lawyer Media, L.P., 72
Americans with Disabilities Act, 91
American Telephone & Telegraph (AT&T),
44, 117, 150
America Online (AOL), 59, 83, 166; basic
description of, 66–71; chat, 21, 67–69,
71, 74; and Counsel Connect (CC),73, 78; filtering features, 198; screen
names, 34, 67–68
Anarchism, 28, 214“Anarchy, State, and the Internet” (Post),
201
Angola, 228

Anonymity, 26, 28, 217; and authentication,
31; and free speech rights, 166; andintellectual property issues, 138–41;
and newsgroups, 80, 82
AOL (America Online), 59, 83, 166; basic
description of, 66–71; chat, 21, 67–69,
71, 74; and Counsel Connect (CC),73, 78; filtering features, 198; screen
names, 34, 67–68
Apple Computer, 105
Articles of Confederation, 5–6
AT&T (American Telephone & Telegraph),44, 117, 150
ATM networks, 27Authentication, 30–36, 39–40, 42
Authorization, 40
Avatar space, 11–13, 20, 66. See also Virtual
reality

Baker, Stewart, 36
Bandwidth, 66
Barlow, John Perry, 108, 218
Baud rates, 64
BBSs (bulletin board services), 63, 67, 71
Benkler, Yochai, 185, 280n65
Berlin Wall, 77
Berners-Lee, Tim, 103
Bickel, Alexander, 168
Bill of Rights, 7, 213–14
Blind individuals, 65–66. See also Disabledindividuals
Body scans, 158
Borders, notion of, 9–13, 206
Bovinity, 57
Boyle, Jamie, 18, 131, 141

290

Index

Brandeis, Louis, 111, 115, 117–18, 139, 144
Breyer, Stephen, 124Brin, David, 60, 153
Britain, 5, 113. See also England
Broadcasting, 182–85
Brown v Board of Education, 214
Browsers: access control features for,176–77; and cookies, 34–35, 41–42;
and intellectual property issues, 123;
and protocols, 102
Buddy lists, 69–70

Cahill, Gordon (law firm), 168
Cailliau, Robert, 103
Calabresi, Guido, 223
CALEA (Communications Assistance for
Law Enforcement Act), 44–46, 106
Camp, Jean, 220–21
Campaign financing, 227
Canada, 35, 207
Carnegie Mellon University, 77Case, Steve, 68
Cases: Brown v Board of Education, 214;
Ginsberg v New York, 173, 175, 176,
178–79; Hudgson v Minnesota, 95;
Katz v United States, 116–17; Maher vRoe, 95; Maryland v Craig, 119; Near v
Minnesota, 169; New York v UnitedStates, 96, 97, 98; Olmstead v UnitedStates, 111–12, 114, 116–17, 149;
ProCD v Zeidenberg, 136; Roe v Wade,
95; Rust v Sullivan, 95–98; Shelley v
Kramer, 97
Catalfo, Phil, 63
Cates, Richard, 229
CC (Counsel Connect), 71–74, 78–79, 83
CDA (Communications Decency Act),
174–75, 177–79, 216
CDs (compact discs), 46–47, 49, 128
Cellular telephones, 45–46, 146. See also
Telephones
Censorship, 178, 181, 205, 233. See also Free
speech
CERN, 103
Certificates, digital, 35, 38–39, 42, 49–53,
176, 207–8
Chat, 65–66; on American Online, 21,
67–69, 71, 74; Internet Relay Chat
(IRC), 64

Chicago Tribune, 169
Children, 71, 92; access control for, 33,
175–82; and COPA (Child Online
Protection Act), 177; protection of,from pornography, 173–76; and rating
systems, 47; and television, 47. See also
Education
China, 56, 143, 167
Christian Right, 177
Circumvention, 49
Cisco, 52–53
Citibank, 206
Citizenship, 35, 41, 56; and education,
Marshall on, 92–93; and sovereignty,
199, 202, 205, 207; in a state, versus ina nation, 226
Civil War, 213–14, 226
Click-wrap (shrink-wrap) licenses, 135, 206
Clinton, Bill, 229
Clinton, Hillary Rodman, 229
Clipper chip, 47–48, 248n18, 258n53
Coase, Ronald, 183
Codifying constitution, 213–15
Coercion, 85
Cohen, Julie, 139, 140
Cohen Theorem, 139, 140
Commerce Department, 125
Commons, 141, 225
Communications Decency Act (CDA),
174–75, 177–79, 216
Communism, 3–5, 8, 58, 209; and the First
Amendment, 214; and intellectual
property issues, 131, 134; in Vietnam,
188, 189
Compaq, 57
Competition, 207
Computer Fraud and Abuse Act, 195
Confidentiality, 35–36. See also Privacy
Congress, 45–47, 53–54, 69, 191, 216; Alienand Sedition Acts, 148; Americans
with Disabilities Act, 91; CALEA(Communications Assistance for Law
Enforcement Act), 44–46, 106; CDA(Communications Decency Act),
174–75, 177–79; Computer Fraud andAbuse Act, 195; COPA (Child Online
Protection Act), 177; Digital
Millennium Copyright Act, 49,
264n19; House Committee on
Impeachment, 229; Low Level

IndexRadioactive Waste Policy
Amendments Act, 95–96;
Telecommunications Act of 1996, 47
Congressional Record, 168
Constitution. See Bill of Rights; specificamendments
Contraceptives, 148Contracts, 136, 196, 198
Controlled use, 150–56
Cookies, 34–35, 41–42
COPA (Child Online Protection Act), 177
Copyight law, 49, 88–89; and CDs, 46;
overview of, 122–41; for software, 225;
and sovereignty, 193, 197, 198, 205–6;
and trusted systems, 127–30; and Web
pages, 103. See also Intellectual
property
Cornell University, 195
Counsel Connect (CC), 71–74, 78–79, 83
Craswell, Richard, 258n45
Credentials, 28–29, 31
Credit cards: secure servers and, 39–40;
usage of, collection of data on, 19,148, 150; validation of, 41
Crime, 21–22, 31–32, 44; drug trafficking,
94–95; hackers, 194–96; theft, 90–91,
123. See also Criminal; Drugs, illegal
Criminal: evidence, 148; trials, rights ofdefendants in, 119. See also Crime
Cryptography, 35–39. See also Encryption
Cybernetics, 5Czech Republic, 92

DAT (digital audio tape), 46–47, 49, 128“David Lynch effect,” 82
Deaf individuals, 65–66. See also Disabledindividuals“Declaration of the Independence ofCyberspace” (Barlow), 218
Defamation laws, 88–89
Defense Department, 4, 168, 169, 217,
282n17
Democracy, 3, 82–83, 218–20, 225–30; andthe courts, 214; and judicial review,
223; and virtual communities, 76–78,
89
Dibbell, Julian, 74–75
Dictatorships, 36
Diffie, Witfield, 36291

Diffie-Hellman system, 36–37
Digital certificates, 35, 38–39, 42, 49–53,
176, 207–8
Digital IDs, 38–39, 41–42, 50, 54–60
Digital Millennium Copyright Act, 49,
264n19
Digital signatures, 42Dignity, 147–48, 155, 161
Disabled individuals, 65–66, 91, 94–95, 164
Discrimination, 94, 156, 164
Distribution, 182–85
Diversity, 82
DNA, 102
Downloading, 64, 71
Drugs, illegal, 93–94, 111, 165–66
Due process, 7Durham, Ivor, 77
DuVal, Richard, 16

East Coast Code, 53–54, 99, 221
Easterbrook, Frank, 136, 197
Education, 92–94, 126, 128. See alsoChildren
Effectiveness, 224
Efficiency, 156–57, 208–9
Elections, 227, 228
Ellsberg, Daniel, 168
E-mail, 49, 188, 198; through AOL, 67, 68;
content, monitoring of, 144–45; andcryptography, 38; and free speechrights, 167; and newbies, 64;
protocols, 195; servers, 102
Encryption, 35–40, 42, 47–49, 89; and the
Clipper chip, 47–48, 248n18, 258n53;
and free speech rights, 166; history of,52; and monitoring practices, 157;
and secure servers, 39–40;
and sovereignty, 205
Energy Department, 170
England, 85, 138. See also Britain
Environmental issues, 95–96
EPIC (Electronic Privacy Information
Center), 161
Equality, 154–56, 180, 214, 217
Essence, notion of, 24–25
Europe, 3–5, 8, 58, 191, 226; andcommunism, 188, 209; constitutional
courts in, 92; and free speech rights,
167; and intellectual property issues,

292

Index

Europe (cont.)
134; and monitoring practices, 159.
See also European Union; specificcountries
European Union, 55. See also Europe;
specific countries
Evidence, 148

Fair use, 134, 137–39, 197
FBI (Federal Bureau of Investigation), 17,
45–46, 146, 231
FCC (Federal Communications
Commission), 45, 166, 182, 183
Fidelity, 115, 118–19, 215
Fifth Amendment, 148
Filtering, 176–82, 186–87, 198, 233
FINGER command, 77
Fingerdaemon, 195
First Amendment, 26, 148, 165–69, 174,
203–4; clarity of, 214; Madisonian
conception of, 180–81; and television,
47. See also Free speech“First sale” doctrine, 134
Fish, Stanley, 9
Fishkin, James, 228
Ford, Richard, 199–200“Forget Big Brother” (Lewis), 152
Formalism, 221
Fourteenth Amendment, 120, 199, 204
Fourth Amendment, 17–18, 111–18,
148–49France, 91, 106–7, 167, 213
Frankfurter, Felix, 183
Free software, 7–8
Free Software Foundation, 104
Free speech, 7–8, 164–85; and AOL, 69; andpublications, 168–73; and sovereignty,
196, 203–4; state suppression of, 85.
See also First Amendment
French Revolution, 91
Frequent flyer mile programs, 155
Friedman, Milton, 165
Froomkin, Michael, 39, 258n53
FTP (file transfer protocol), 101, 102

Gambling, 14, 19, 50, 54–55, 116–17, 198
Gandy, Oscar, 153
George II (king), 17–18
George III (king), 17–18

Georgetown University Law Review, 174
Germany, 92, 166, 190
Gibson, William, 5Ginsberg v New York, 173, 175, 176, 178–79
GNU, 104–5
God, 12, 90
Godwin, Mike, 63, 254n34
Goldsmith, Jack, 193, 197
Goodale, James, 168
GPL (general public license), 105
Grant, Gail L., 40

Hackers, 194–96
Hafner, Katie, 77
Hansen, Chuck, 170
Harter, Peter, 106
Harvard Law School, 26–29, 38, 79
Headers, 28
Hellman, Martin, 36
Herz, J. C., 25–26
Hewlett Packard, 145
Hierarchies, social, 155
Holmes, Oliver Wendell, 6Homelessless, 180
Hoover, Herbert, 182
Hotels, 92
House Committee on Impeachment, 229
HTML (HyperText Markup Language),
102, 103
HTTP (hypertext transfer protocol), 101–3
Hudgson v Minnesota, 95
Hungary, 167, 191
Hunt, 101
Hurst, Paul, 36
Hustler, 16

IBEX, 78–82
IBM (International Business Machines), 52,
59, 105, 177
Identification, 30–39, 67–68. See also
Certification
Identity, 30–34
IETF (Internet Engineering Task Force), 52,
102, 207
Ignition-locking systems, 94
Imperialism, 203
Incentives, 41
Independence Day (film), 58
Indirection, problem of, 95–98

IndexIndustry Standard, The, 98
Innateness, notion of, 24–25
Innocence, 152
Integrity, 40, 41, 98, 204
Intel, 105
Intellectual property, 8, 122–41, 186; andmonitoring practices, 162; promise
for, in cyberspace, 127–30. See also
Copyright law“Intellectual Property and the National
Information Infrastructure”(Commerce Department), 125–27
Inter–active WeekOnline, 24Internet Engineering Task Force (IETF), 52,
102, 207
Internet Service Providers (ISPs), 51–53,
201–2
IP (Internet Protocol) addresses, 32–33, 101
IRC (Internet Relay Chat), 64. See also Chat
“Is-isms,” fallacy of, 24–29
ISPs (Internet Service Providers), 51–53,
201–2“Jake’s communities,” 14–17, 21, 83, 166,
190, 198
Japan, 214
Japanese Americans, 214
Java, 102
Jefferson, Thomas, 132, 141, 233
Jim Crow laws, 154
Johnson, David, 24, 71, 192–93, 201
Johnson, Steven, 154, 252n6
Jones, Martha, 9–10
Jury system, 229

Kaker, Jake, 190
Kapor, Mitch, 20
Katsh, Ethan, 90, 143Katz, Charles, 117Katz v United States, 116–17
Kennedy, John F., 171, 225–26
Kennedy School of Government, 220
Kids. See Children
Kids-ID box, 176, 177, 179
Kundera, Milan, 193

Labor movement, 85
Laffer Curve, 94

293

Laissez-faire policy, 87, 163, 206
LamdaMOO, 74–78, 83. See also MOOs
(virtual worlds)
Latent ambiguity, 22–23, 110, 119–20, 223;
in agreements, 149; and codifying
constitutions, 215; and democracy,
227; and free speech rights, 181; andsovereignty, 191; and translation,
211–12.law.cyber newsgroup, 78–83. See also
Newsgroups
Lawyers, vilification of, 229–30. See also CC(Counsel Connect);.law.cyber newsgroup
Legal cases: Brown v Board of Education,
214; Ginsberg v New York, 173, 175,
176, 178–79; Hudgson v Minnesota,
95; Katz v United States, 116–17;
Maher v Roe, 95; Maryland v Craig,
119; Near v Minnesota, 169; New Yorkv United States, 96, 97, 98; Olmstead v
United States, 111–12, 114, 116–17,
149; ProCD v Zeidenberg, 136; Roe v
Wade, 95; Rust v Sullivan, 95–98;
Shelley v Kramer, 97
Legislation: Alien and Sedition Act s ,1 4 8 ;Americans with Disabilities Act ,9 1 ;CALEA (Communications Assistancefor Law Enforcement Act ) ,4 4 – 4 6 ,1 0 6 ;C DA (Communications Decency
Act ) ,1 7 4 – 7 5 ,1 7 7 – 7 9 ; Computer
Fraud and Abuse Act ,1 9 5 ;C O PA
(Child Online Protection Act ) ,1 7 7 ;Digital Millennium Copyright Act,
4 9 ,2 6 4n19; Low Level Radioactive
Waste Policy Amendments Act,
95–96; Telecommunications Act of
1 9 9 6 ,4 7
Lemley, Mark, 225
Lenin, V. I., 188
Lewis, Peter, 152
Lexis, 34, 72
Liability, 10, 112–13, 161, 232
Libertarianism, 3–6, 54–55, 219; andDeclan, 232; and Mill, 85; and Net95,
28–29; and sovereignty, 206
Licenses: click-wrap (shrink-wrap), 135,
206; general public (GPL), 105
Limbaugh, Rush, 221
Linux, 105
Litman, Jessica, 193

294

Index

Louisiana purchase, 217
Low Level Radioactive Waste Policy
Amendments Act, 95–96
Lyon, Matthew, 77

MacArthur Foundation, 104
McCullagh, Declan, 231–33
Maddox, Tom, 6Maher v Roe, 95
Malpractice insurance, 172
Marshall, Thurgood, 92–93, 220
Marx, Karl, 5, 188
Maryland v Craig, 119
Meares, Tracey, 94
Merkle, Ralph, 127
Microsoft, 6, 177; Windows, 104, 105;
Word, 144, 221, 286n23
MicroWarehouse, 38
Mill, John Stuart, 85
Minimalism, 33
MIT (Massachusetts Institute ofTechnology), 53
Mitchell, John, 169
Mitchell, William, 6, 60, 89–90
Mnookin, Jennifer, 78
Mobility, economic, 155
Modularity, 225
Monarchy, 17–18
Monitoring, 143–63
MOOs (virtual worlds), 11–12, 13, 64;
LamdaMOO, 74–78, 83; tinySex
behavior in, 142–43
Morland, Howard, 170
Morris, Robert Tappin, 195
Moses, Robert, 92
Motion Picture Association, 47
Mozilla, 105
MP3 file format, 49
MUDs (virtual worlds), 11–12, 13, 74,
284n41; competition among, 202;
spoofing someone’s identity in, 89;
tinySex behavior in, 142–43
Mysticism, 64

Napoleon III, 91
National Enquirer, 171–72
National Science Foundation (NSF), 3 9 ,2 1 9

National Security Agency (NSA), 17, 35,
144, 145
National Transportation Safety Board(NTSB), 171
Nature, concept of, 24–25, 30, 82
Nazi Party, 166
Near v Minnesota, 169
Negroponte, Nicholas, 28, 226, 264n15
Net95, 27–28, 33, 53
Netizens, 90
Netscape, 39–40, 52, 105–6, 176–77; andPICS, 177; and SSL, 106
Network Associates, 52
Network Solutions, 219“Newbies,” 64
New Deal, 159
Newsgroups, 15, 64, 72, 81, 170, 174; AOL
access to, 68; .law.cyer newsgroup,
78–83
News reporting, 228
Newsweek, 174
New Yorker, The, 28
New York Times, 25–26, 129, 152, 168–72,
179–180, 183
New York v United States, 96, 97, 98
Nike, 4, 152
Nixon, Richard M., 229
NNTP (Network News Transfer Protocol),15
Nonprofit organizations, 219–20
Nonrepudiation, 40
Norms, 85–88, 92–95, 123, 159–60, 235–38;
and free speech rights, 164–65, 173;
use of the term, 235
North Korea, 167
NSA (National Security Agency), 17, 35,
144, 145
NTSB (National Transportation Safety
Board), 171
Nuclear waste, 95–96

O’Brian, David, 225
Obsenity laws, 88–89
Olmstead v United States, 111–12, 114,
116–17, 149
On Liberty (Mill), 85
Open code, 7, 224–25
Open source software, 7–8, 100–108

Index
Originalism, one-step, 114
OSI (open systems interconnect) model,
101
Ownership, 7–8, 13, 61

P3P, 160, 162–63, 177, 181
Packets, 28, 32, 44“Panoptic sort,” 153
Parking garages, 92
Parking tickets, 90–91
Passwords, 34–35
Pearl Harbor, 214
Pentagon Papers, 168–70, 172
PGP (Pretty Good Privacy), 52
Photocopying, 124, 128, 168
PICS, 177–78, 181
PKI (public key infrastructure), 38, 41, 52
Polling, 228
Pornography, 15–17, 33, 191; and freespeech rights, 173–75; in Vietnam,189; and virtual communities, 74–75
Posner, Richard, 45, 165
Post, David, 24, 192–93, 201–2
Post, Robert, 116
Postel, Jon, 219
PowerPC chip, 105
Press-Connection, 170
Printing press, 124, 183
Privacy, 8, 142–63, 186–87, 217; and the Billof Rights, 7; conception of, choosing,
149–50; as dignity, 147–48; tominimize burden, 146–47; andprotocols, 40–41; reasonable
expectation of, notion of, 117–18; andsearch and seizure, 112–14; andsovereignty, 206, 208; as substantive,
148–49; and trespass law, 111–14; andwiretapping, 111–12, 114, 116–17,
139, 149; and worms, 17–19, 23. See
also Confidentiality
Privacy Now! (organization), 161
ProCD v Zeidenberg, 136
Profiles in Courage (Kennedy), 225
Profiling, 155
Progressive, The, 170
Prohibition, 111
Property law, 122–23, 130–35; andmonitoring practices, 159–62; and295

sovereignty, 198. See also Intellectual
property
Protocols, 32–33, 89; four layers of, 101–2;
and free speech rights, 166, 184;
Internet mail, 195; and monitoring
practices, 160; and open source
software, 101–2, 106; and sovereignty,
106, 195
Pseudonyms, 82
Public forums, 69
Public key encryption, 35–39, 40. See also
Encryption
Public transportation, 92
Punishment, 85, 90–91, 125, 214

Radio, 182–85
Radio Act, 182
Rand, Ayn, 131
RAND Corporation, 168
Rape, 75
Rating systems, 47, 279n46
Reagan, Ronald, 96
Reconstruction, 226
Reeves, Harold, 122–23
Reid, Elizabeth, 74
Rhenquist, William, 215
Roe v Wade, 95
Rotenberg, Marc, 161
Router technology, 52–53
Russia, 5–6, 207
Rust v Sullivan, 95–98

Salinger, Pierre, 171
Scalia, Anthony, 97, 147–48
Scanning, 128
Screen names, 34, 67–68
Search and seizure, 112–14
Search engines, 123, 153
Seatbelts, 93–94, 224, 257n34
Sedition, evidence of, 148Segregation, 98, 154, 164, 214
Self-regulation, 159, 287n11
Self-sufficiency, 130
SENDMAIL, 104, 195
Servers, 39–40, 42, 55, 198, 207
SET (secure electronic transaction)
protocol, 40

296

Index

Shamans, Software, and Spleens (Boyle), 141
Shapiro, Andrew, 233
Shelley v Kramer, 97
Shrink-wrap (click-wrap) licenses, 135, 206
Sixth Amendment, 148
Skorkin, Michael, 239
Slavery, 204–5, 214, 226
Smoking, 87, 91
SMTP (simple mail transport protocol),101, 102
Sola Pool, Ithiel de, 180–81
Soros, George, 108, 165–66
Sovereignty, 8, 21–22, 187–209
Soviet Union, 107, 182, 185, 234
SSL (secure socket layer) protocol, 39, 40,
106
Stalin, Josef, 107, 125
Stallman, Richard, 104, 105
Stanford Law Review, 24
States, jurisdiction of, 54–56, 198, 203
Stefik, Mark, 6, 127–29, 135, 137
Steinert-Threlkeld, Tom, 24
Stewart, Potter, 117–18
Stone, Geof, 26, 181
Streets, design of, 92
Stuntz, William, 45, 148
Subjection of Women, The (Mill), 85
Sunstein, Cass, 149, 180, 181
Sweden, 207
Switching technologies, 44

Taft, William H., 114–17, 144
Taiwan, 56, 177
Taxation, 50–51, 69, 91
TCP/IP (Transmission Control
Protocol/Internet Protocol), 27,
32–34, 101–2, 175, 211
Telecommunications Act of 1996, 47
Telegraph, 39
Telephone(s), 19, 44–46, 106, 157; cellular,
45–46, 146; records, 148, 150; andsovereignty, 196. See also Wiretapping
Television, 47, 124–25; and free speechrights, 166; shows, lifestyle alternatives
portrayed in, 191; and sovereignty,
196
Theft, 90–91, 123. See also Crime
Themes, 19–23
Thumbprint readers, 57–58

Tiebout, Charles, 201
Time, 174
Tipping, 155–56
Tocqueville, Alexis de, 229
Tomlin, Lily, 39
Torvalds, Linus, 104
Traceability, 51, 140
Trademarks, 206. See also Intellectual
property
Transformative constitution, 213–14
Transience, 82
Translation, 109–21, 158, 222–23; andintellectual property issues, 139, 149;
and latent ambiguities, 211–12; use of
the term, 261n15
Transparency, 96, 224, 225
Trespass law, 111–14, 117, 198
Tribe, Laurence, 117–19
Trusted systems, 127–30, 135, 137–39,
205–6
TWA Flight 800, 171, 172
Twilight of Sovereignty, The (Wriston), 206

UDP (User Datagram Protocol), 101“Ugly” individuals, 65–66
Unger, Roberto, 59
University of Chicago, 3, 26, 27, 79, 122
University of Helsinki, 104
University of Illinois, 53
University of Michigan, 21
UNIX, 77, 194
USENET newsgroups, 15, 64, 72, 81, 170,174; AOL access to, 68;.law.cyer
newsgroup, 78–83
Utopianism, 4, 29

V-chip, 47, 106
Verification, 34–35. See also Authentication
VeriSign, 38, 246n31
Videotape, 74, 124–25, 145–148, 151
Vietnam, 168, 188, 189
Village Voice, 74
Vinge, Vernor, 6Violent content, 15–17, 74–75
Virtual reality, 74–78, 83. See also MOOs
(virtual worlds); MUDs (virtualworlds)Viruses, 17, 71

IndexVisa, 40
V-mail (voice mail), 145
Vote, right to, 199–200, 209, 214

W3C (World Wide Web Consortium), 102,
160
Wall, the, 79–80
Wall Street Journal, 179–180, 183
Warrants, 112–13
Warren, Earl, 45, 215
Warren, Robert, 170
Warren Court, 45, 215
Weapons, concealed, 158
Web browsers: access control features for,176–77; and cookies, 34–35, 41–42;
and intellectual property issues, 123;
and protocols, 102. See also Web sites
Web sites: access control and, 176–77; anddata collection techniques, 153–54;
and free speech rights, 167; andsovereignty, 195. See also Web
browsers; World Wide Web
Webster, Daniel, 225–26
WELL, The, 63, 64
West Coast Code, 53–54, 98–99, 221
White Papers, 125–27, 219
Williams, Bernard, 120297

Windows (Microsoft), 104, 105Winn, Jane, 39
Wired News, 231
Wiretapping, 111–12, 114, 116–17, 139, 149
Wood, Gordon, 154
Word (Microsoft), 144, 221, 286n23
World War II, 205, 214
World Wide Web, 66, 102–3. See also Web
browsers; Web sites
World Wide Web Consortium (W3C), 102,
160
Worms, 17–19, 22, 110, 144–50, 195
Wriston, Walter, 206
Wu, Tim, 102

Xerox PARC, 127

Y2K issues, 104, 231–32
Yahoo!, 35
Yale Law School, 79, 82, 168

Zelizer, Viviana, 155–56
Zoning, 28, 57, 216; and free speech rights,
175–79, 181; and the ideal of equality,154; and segregation, 98C O D E