IT Ethics Assignment

18 Jun IT Ethics Assignment

C O D E

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C O D E

v e r s i o n 2 . 0

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

A Member of the Perseus Books Group New York

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Copyright © 2006 by Lawrence Lessig CC Attribution-ShareAlike

Published by Basic Books A Member of the Perseus Books Group

Printed in the United States of America. For information, address Basic Books, 387 Park Avenue South, New York, NY 10016–8810.

Books published by Basic Books are available at special discounts for bulk purchases in the United States by corporations, institutions, and other organizations. For more information, please contact the Special Markets Department at the Perseus Books Group, 11 Cambridge Center, Cambridge MA 02142, or call (617) 252-5298, (800) 255-1514 or e-mail special.markets@perseusbooks.com.

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

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

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

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Code version 1.0

FOR CHARLIE NESSON, WHOSE EVERY IDEA

SEEMS CRAZY FOR ABOUT A YEAR.

Code version 2.0

TO WIKIPEDIA,

THE ONE SURPRISE THAT TEACHES MORE THAN EVERYTHING HERE.

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C O N T E N T S

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

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

PART I: “REGULABILITY”

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

PART II: REGULATION BY CODE

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

PART III: LATENT AMBIGUITIES

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

PART IV: COMPETING SOVEREIGNS

Chapter 14. Sovereignty 281 Chapter 15. Competition Among Sovereigns 294

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PART V: RESPONSES

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

Appendix 340 Notes 347 Index 399

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

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

In the years since, that common view has faded. The confidence of the Internet exceptionalists has waned. The idea—and even the desire—that the Internet would remain unregulated is gone. And thus, in accepting the invita- tion to update this book, I faced a difficult choice: whether to write a new book, or to update the old, to make it relevant and readable in a radically dif- ferent time.

I’ve done the latter. The basic structure of the first edition remains, and the argument advanced is the same. But I’ve changed the framing of particu- lar examples, and, I hope, the clarity of the writing. I’ve also extended the argument in some parts, and added brief links to later work in order to better integrate the argument of the original book.

One thing I have not done, however, is extend the argument of this book in the places that others have worked. Nor have I succumbed to the (insanely powerful) temptation to rewrite the book as a response to critics, both sym- pathetic and not. I have included direction in the notes for those wanting to follow the arguments others have made in response. But, even more than when it was first published, this book is just a small part of a much bigger debate. Thus, you shouldn’t read this to the exclusion of extraordinary later work. Two books in particular already published nicely complement the argu- ment made here—Goldsmith and Wu’s Who Controls the Net? (2006), and Benkler’s TheWealth of Networks (2006)—and a third by Zittrain, expected in 2007, significantly extends the same argument.

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

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

I am grateful to JotSpot () for donating the wiki and hosting services that were used to edit Code v1. That wiki was managed by an extraordinary Stanford undergraduate, JakeWachman, who gave this project more time than he had. Each chapter of the book, while living on the wiki, had a “chapter captain.” I am grateful to each of them—Ann Bartow, Richard Belew, Seth Finkelstein, Joel Flynn,Mia Garlick, Matt Goodell, Paul Gowder, Peter Harter, Brian Honermann, Brad Johnson, Jay Kesan, John Logie, Tom Maddox, Ellen Rigsby, and Jon Stewart—for the work they volunteered to do, and to the many volunteers who spent their time trying to make Code v1 bet- ter. I am especially grateful to Andy Oram for his extensive contributions to the wiki.

In addition to these volunteers, Stanford helped me gather an army of law students to help complete the research that Code v2 required. This work began with four—David Ryan Brumberg, Jyh-An Lee, Bret Logue, and Adam Pugh—who spent a summer collecting all the work that built upon or criti- cized Code v1. I relied upon that research in part to decide how to modify Code v1.During the fall semester, 2005, a seminar of Stanford students added their own critical take, as well as classes at Cardozo Law School. And then during the year, two other students, John Eden and Avi Lev Robinson-

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

No student, however, contributed as much to the final version of Code v2 as Christina Gagnier. In the final months of this project, she took command of the research, completing a gaggle of unresolved questions, putting the results of this 18-month process in a form that could be published, and super- vising a check of all citations to verify their completeness and accuracy.With- out her work, this book would not have been completed.

I am also grateful to friends and colleagues who have helped me see how this work needed to change—especially Ed Felten, David Johnson, Jorge Lima, Alan Rothman, and Tim Wu. Jason Ralls designed the graphics for Code v2. And finally, I am indebted beyond words to Elaine Adolfo, whose talent and patience are far beyond anything I’ve ever known, and without whom I could not have done this, or much else in the past few years.

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

In the spring of 1996, at an annual conference organized under the title “Com- puters, Freedom, and Privacy” (CFP), two science-fiction writers were invited to tell stories about cyberspace’s future.VernorVinge spoke about “ubiquitous law enforcement”made possible by“fine-grained distributed systems,” in which the technology that will enable our future way of life also feeds data to, and accepts commands from, the government. The architecture that would enable this was already being built—it was the Internet—and technologists were already describing ways in which it could be extended. As this network which could allow such control became woven into every part of social life, it would be just amatter of time,Vinge said, before the government claimed control over vital parts of this system.As the systemmatured, each new generation of system code would increase the power of government.Our digital selves—and increas- ingly, our physical selves—would live in a world of perfect regulation, and the architecture of this distributed computing—what we today call the Internet and its successors—would make that regulatory perfection possible.

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

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

present. Cyberspace was increasingly everywhere, but it was very hard for those in the audience to imagine it tamed to serve the ends of government. And at that time, commerce was certainly interested in cyberspace, though credit 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.

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

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

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

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

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This book continues Vinge’s and Maddox’s stories. I share their view of the Net’s future; much of this book is about the expanding architecture of reg- ulation that the Internet will become. But I don’t share the complacency of the self-congratulatory cheers echoing in the background of that 1996 recording. It may well have been obvious in 1996 who “the enemy” was. But it is not obvious now.

The argument of this book is that our future is neither Vinge’s nor Mad- dox’s accounts standing alone. Our future is the two woven together. If we were only in for the dystopia described by Vinge, we would have an obvious and powerful response: Orwell gave us the tools, and Stalin gave us the resolve to resist the totalitarian state. After 9/11, we may well see a spying and invasive Net. But even that will have limits. Totalitarian control by Washington is not our future. 1984 is solidly in our past.

Likewise, if we were only in for the future that Maddox described, many of our citizens would call that utopia, not science fiction. A world where “the market” runs free and the “evil” of government is defeated would be, for them, a world of perfect freedom.

But when you tie the futures described by Vinge and Maddox together, it is a different picture altogether: A future of control in large part exercised by technologies of commerce, backed by the rule of law (or at least what’s left of the rule of law).

The challenge for our generation is to reconcile these two forces. How do we protect liberty when the architectures of control are managed as much by the government as by the private sector? How do we assure privacy when the ether perpetually spies? How do we guarantee free thought when the push is to propertize every idea? How do we guarantee self-determination when the architectures of control are perpetually determined elsewhere? How, in other words, do we build a world of liberty in the face of the dangers that Vinge and Maddox together describe?

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

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

There is great work from both generations. Esther Dyson and John Perry Barlow, and Todd Lapin still inspire, and still move one (Dyson is editor at

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

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 man- uscript off to the publisher, I can already hear the reactions: “Can’t you tell the difference between the power of the 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 cyber- space (free software) that disables government’s ability to do good?”

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

I have learned an extraordinary amount from the teachers and critics who have helped me write this book. Hal Abelson, Bruce Ackerman, James Boyle, Jack Goldsmith, and Richard Posner gave patient and excellent advice on earlier drafts. I am grateful for their patience and extremely fortunate to have had their advice. Larry Vale and SarahWhiting guided my reading in the field of architecture, though no doubt I was not as patient a student as I should have been. SonyaMead 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 Farber, Melanie Glickson, Bethany Glover, Nerlyn Gonzalez, Shannon Johnson, Karen King, Alex Macgillivray, Marcus Maher, David Melaugh, Teresa Ou, Laura Pirri, and Wendy Seltzer provided extensive, if respectful, criticism.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 10. Tim Wu forced me to rethink much of Part I. And Andrew Shapiro showedme the hopefulness in a future that I have described in very dark terms.

I am especially indebted to Catherine Marguerite Manley, whose extraor- dinary talent, both as a writer and a researcher, made it possible to finish this work long before it otherwise 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.

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This is a not a field where one learns by living in libraries. I have learned everything I know from the conversations I have had, or watched, with an extraordinary community of academics and activists, who have been strug- gling over the last five years both to understand what cyberspace is and to make it better. This community includes the scholars 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 conversa- tions with nonlawyers, especially Hal Abelson, John Perry Barlow, Todd Lapin, Joseph Reagle, Paul Resnick, and DannyWeitzner. But perhaps more impor- tantly, I’ve benefited from discussions with the activists, in particular the Cen- ter for Democracy and Technology, the Electronic Frontier Foundation, and the American Civil Liberties Union. They have made the issues real, and they have done much to defend at least some of the values that I think important.

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 David Johnson. I am grateful to all three for what they have taught.

I began this project as a fellow at Harvard’s Program on Ethics and the Professions. I am grateful to Dennis Thompson for his skeptical encourage- ment that year. The Berkman Center for Internet and Society at Harvard Law School has made much of my research possible. I am grateful in particular to Lillian andMyles Berkman for that support, and especially to the center’s co- director and my sometime coteacher, Jonathan Zittrain, for his support and, more important, friendship. I’ve dedicated this book to the other co-director of the Berkman Center, Charlie Nesson, who has given me the space and sup- port 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, of the person to whom I’ve dedicated my life, Bettina Neuefeind. Her love will seem crazy, and wonderful, for much more than a year.

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C O D E

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O N E

c o d e i s l a w

ALMOST TWO DECADES AGO, IN THE SPRING OF 1989, COMMUNISM IN EUROPE died—collapsed, like a tent, its main post removed. The end was not brought by war or revolution. The end was exhaustion. A new political regime was born in its place across Central and Eastern Europe, the beginnings of a new political society.

For constitutionalists (like me), this was a heady time. I had graduated from law school in 1989, and in 1991 I began teaching at the University of Chicago.At that time, Chicago had a center devoted to the study of the emerg- ing 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 translated constitutions to the emerging consti- tutional republics; the rest had innumerable half-baked ideas about how the new nations should be governed. These Americans came from a nation where constitutionalism seemed to work, yet they had no clue why.

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

What we saw was striking, if understandable. Those first moments after communism’s collapse were filled with antigovernmental passion—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 organiza- tions—a new society—take government’s place. After generations of com- munism, this reaction was completely understandable. Government was the

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

A certain kind of libertarianism seemed to many to support much in this reaction. If the market were to reign, and the government were kept out of the way, freedom and prosperity would inevitably grow. Things would take care of themselves. There was no need, and could be no place, for extensive regu- lation by the state.

But things didn’t take care of themselves.Markets didn’t flourish. Govern- ments were crippled, and crippled governments are no elixir of freedom. Power didn’t disappear—it shifted from the state to mafiosi, themselves often created by the state. The need for traditional state functions—police, courts, schools, health care—didn’t go away, and private interests didn’t emerge to fill that need. Instead, the needs were simply unmet. Security evaporated.A mod- ern if plodding anarchy replaced the bland 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 mur- dered in broad daylight on Moscow streets. One system of control had been replaced by another. Neither was what Western libertarians would call “free- dom.”

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

The catalyst for this change was likewise unplanned. Born in a research project in the Defense Department,1 cyberspace too arose from the unplanned displacement of a certain architecture of control. The tolled, single-purpose network of telephones was displaced by the untolled and multipurpose net- work of packet-switched data. And thus the old one-to-many architectures of publishing (television, radio, newspapers, books) were complemented by a world in which anyone could become a publisher. People could communicate and associate in ways that they had never done before. The space seemed to promise a kind of society that real space would never allow—freedomwithout anarchy, control without government, consensus without power. In the words of a manifesto that defined this ideal: “We reject: kings, presidents and voting. We believe in: rough consensus and running code.”2

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As in post-Communist Europe, these first thoughts about freedom in cyberspace tied freedom to the disappearance of the state. As John Parry Bar- low, former lyricist for the Grateful Dead and co-founder of the Electronic Frontier Foundation, declared in his “Declaration of Independence for Cyber- space,”

Governments of the IndustrialWorld, you weary giants of flesh and steel, I come

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

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

eignty where we gather.

But here the bond between freedom and the absence of the state was said to be even stronger than in post-Communist Europe. The claim for cyber- space was not just that government would not regulate cyberspace—it was that government could not regulate cyberspace. Cyberspace was, by nature, unavoidably free. Governments could threaten, but behavior could not be controlled; laws could be passed, but they would have no real effect. There was no choice about what kind of government to install—none could reign. Cyberspace would be a society of a very different sort. There would be defini- tion and direction, but built from the bottom-up. The society of this space would be a fully self-ordering entity, cleansed of governors and free from political hacks.

I taught in Central Europe during the summers of the early 1990s; I wit- nessed throughmy students the transformation in attitudes about communism that I described above.And so I felt a bit of déjà vu when, in the spring of 1995, while teaching the law of cyberspace, I saw inmy students these very same post- communist thoughts about freedom and government. Even atYale—not known for libertarian passions—the students seemed drunk with what James Boyle would later call the“libertarian gotcha”:3 no government could survive without the Internet’s riches, yet no government could control the life that went on there. Real-space governments would become as pathetic as the last Communist regimes: It was the withering of the state thatMarx had promised, jolted out of existence by trillions of gigabytes flashing across the ether of cyberspace.

But what was never made clear in the midst of this celebration was why. Why was cyberspace incapable of regulation? What made it so? The word itself suggests not freedom but control. Its etymology reaches beyond a novel byWilliam Gibson (Neuromancer, published in 1984) to the world of “cyber- netics,” the study of control at a distance through devices.4 So it was doubly puzzling to see this celebration of “perfect freedom” under a banner that aspires (to anyone who knows the origin, at least) to perfect control.

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As I said, I am a constitutionalist. I teach and write about constitutional law. I believe that these first thoughts about government and cyberspace were just as misguided as the first thoughts about government after communism. Liberty in cyberspace will not come from the absence of the state. Liberty there, as anywhere, will come from a state of a certain kind.We build a world where freedom can flourish not by removing from society any self-conscious control, but by setting it in a place where a particular kind of self-conscious control survives.We build liberty 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 in the early 1990s, 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 architecture—not just a legal text but a way of life—that structures and constrains social and legal power, to the end of pro- tecting fundamental values. (One student asked,“constitution” in the sense of “just one tool amongmany, one simple flashlight that keeps us from fumbling in the dark, or, alternatively . . . more like a lighthouse that we constantly call upon?” I mean constitution as in lighthouse—a guide that helps anchor fun- damental values.)

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 constitu- tion, the Articles of Confederation, was a miserable failure of do-nothing- ness), so too are we beginning to understand about cyberspace that this building, or laying, is not the work of an invisible hand. There is no reason to believe that the foundation for liberty in cyberspace will simply emerge. Indeed, the passion for that anarchy—as in America by the late 1780s, and as in the former Eastern bloc by the late 1990s—has faded. Thus, as our framers learned, and as the Russians saw, we have every reason to believe that cyber- space, left to itself, will not fulfill the promise of freedom. Left to itself, cyber- space will become a perfect tool of control.

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

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While once it seemed obvious and easy to declare the rise of a ”network society”

in which individuals would realign themselves, empower themselves, and under-

mine traditional methods of social and cultural control, it seems clear that net-

worked digital communication need not serve such liberating ends.5

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

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

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

That regulator is the obscurity in this 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 a different “code” regulates— how the software and hardware (i.e., the “code” of cyberspace) that make cyberspace what it is also regulate cyberspace as it is. As William Mitchell puts it, this code is cyberspace’s “law.”6 “Lex Informatica,” as Joel Reidenberg first put it,7 or better, “code is law.”

Lawyers and legal theorists get bothered, however, when I echo this slo- gan. There are differences, they insist, between the regulatory effects produced by code and the regulatory effects produced by law, not the least of which is the difference in the “internal perspective” that runs with each kind of regu- lation.We understand the internal perspective of legal regulation—for exam- ple, that the restrictions the law might impose on a company’s freedom to pollute are a product of self-conscious regulation, reflecting values of the society imposing that regulation. That perspective is harder to recognize with code. It could be there, but it need not. And no doubt this is just one of many important differences between “code” and “law.”

I don’t deny these differences. I only assert that we learn something useful from ignoring them for a bit. Justice Holmes famously focused the regulator

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

My point is the same. I suggest we learn something if we think about the “bot man” theory of regulation—one focused on the regulation of code. We will learn something important, in other words, if we imagine the target of regulation as a maximizing entity, and consider the range of tools the regula- tor has to control that machine.

Code will be a central tool in this analysis. It will present the greatest threat to both liberal and libertarian ideals, as well as their greatest promise.We can build, or architect, or code cyberspace to protect values that we believe are fun- damental. Or we can build, or architect, or code cyberspace to allow those val- ues to disappear. There is no middle ground. There is no choice that does not include some kind of building. Code is never found; it is only ever made, and only ever made by us.AsMark Stefik puts it,“Different versions of [cyberspace] support different kinds of dreams.We choose, wisely or not.”9 Or again, code “determines which people can access which digital objects . . . How such pro- gramming regulates human interactions . . . depends on the choices made.”10

Or,more precisely, a code of cyberspace, defining the freedoms and controls of cyberspace, will be built. About that there can be no debate. But by whom, and with what values? That is the only choice we have left to make.

My argument is not for some top-down form of control. The claim is not that regulators must occupy Microsoft. A constitution envisions an envi- ronment; as Justice Holmes said, it “call[s] into life a being the development of which [cannot be] foreseen.”11 Thus, to speak of a constitution is not to describe a hundred-day plan. It is instead to identify the values that a space 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 should be protected there? What values should be built into the space to encourage what forms of life?

The “values” at stake here are of two sorts—substantive and structural. In the American constitutional tradition, we worried about the second first. The framers of the Constitution of 1787 (enacted without a Bill of Rights) were focused on structures of government. Their aim was to ensure that a partic- ular government (the federal government) did not become too powerful. And so they built into the Constitution’s design checks on the power of the federal government and limits on its reach over the states.

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

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

We face the same questions in constituting cyberspace, but we have approached them from the opposite direction.12 Already we are struggling with substance:Will cyberspace promise privacy or access?Will it enable a free culture or a permission culture?Will it preserve a space for free speech? These are choices of substantive value, and they are the subject of much of this book.

But structure matters as well, though we have not even begun to under- stand how to limit, or regulate, arbitrary regulatory power.What “checks and balances” are possible in this space? How do we separate powers? How do we ensure that one regulator, or one government, doesn’t become too powerful? How do we guarantee it is powerful enough?

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

In Part III, I bring these questions back down to the ground. I consider three areas of controversy—intellectual property, privacy, and free speech— and identify the values within each that cyberspace will change. These values are the product of the interaction between law and technology. How that interaction plays out is often counter-intuitive. My aim in this part is to map that interaction, so as to map a way that we might, using the tools of Part II, preserve the values that are important to us within each context.

Part IV internationalizes these questions. Cyberspace is everywhere, meaning those who populate cyberspace come from everywhere. How will the sovereigns of everywhere live with the claimed “sovereignty” of cyberspace? I

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

The final part, Part V, is the darkest. The central lesson of this book is that cyberspace requires choices. Some of these are, and should be, private: Whether an author wants to enforce her copyright; how a citizen wants to protect his privacy. But some of these choices involve values that are collective. I end by asking whether we—meaning Americans—are up to the challenge that these choices present. Are we able to respond rationally—meaning both (1) are we able to respond without undue or irrational passion, and (2) do we have institutions capable of understanding and responding to these choices?

My strong sense is that we are not, at least now, able to respond rationally to these challenges.We are at a stage in our history when we urgently need to make fundamental choices about values, but we should trust no institution of government to make such choices. Courts cannot do it, because as a legal culture we don’t want courts choosing among contested matters of values. Congress should not do it because, as a political culture, we are deeply skep- tical (and rightly so) about the product of this government. There is much to be proud of in our history and traditions. But the government we now have is a failure. Nothing important should be trusted to its control, even though everything important is.

Change is possible. I don’t doubt that revolutions remain in our future. But I fear that it is too easy for the government, or specially powered interests, to dislodge these revolutions, and that too much will be at stake for it to allow real change to succeed. Our government has already criminalized the core ethic of this movement, transforming the meaning of hacker into something quite alien to its original sense. Through extremism in copyright regulation, it is criminalizing the core creativity that this network could produce.And this is only the beginning.

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 simply a confes- sion of the limits of 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 for- mer Communist republics are learning—how to escape these disabling ideas about the possibilities for governance. But nothing in the past decade, and especially nothing in the past five years, has convinced me that my skepticism about governance was misplaced. Indeed, events have only reinforced that pessimism.

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T W O

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

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

But “cyberspace” is something more. Though built on top of the Internet, cyberspace is a richer experience.Cyberspace is something you get pulled“into,” perhaps by the intimacy of instant message chat or the intricacy of “massively multiple online games” (“MMOGs” for short, or if the game is a role-playing game, then“MMORPGs”). Some in cyberspace believe they’re in a community; some confuse their lives with their cyberspace existence. Of course, no sharp line divides cyberspace from the Internet. But there is an important difference in experience between the two. Those who see the Internet simply as a kind of Yel- low-Pages-on-steroids won’t recognize what citizens of cyberspace speak of. For them,“cyberspace” is simply obscure.

Some of this difference is generational. For most of us over the age of 40, there is no “cyberspace,” even if there is an Internet. Most of us don’t live a life online that would qualify as a life in“cyberspace.”But for our kids, cyberspace is increasingly their second life. There are millions who spend hundreds of hours a month in the alternative worlds of cyberspace—later on we will focus on one of these worlds, a game called “Second Life.”1 And thus while you may think to yourself, this alien space is nothing I need worry about because it’s nowhere I’ll ever be, if you care to understand anything about the world the next generation will inhabit, you should spend some time understanding “cyberspace.”

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

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through these four very different stories is to orient by sometimes disorienting. My hope is that you’ll come to understand four themes that will recur through- out this book.At the end of this chapter, I come clean about the themes and pro- vide a map. For now, just focus on the stories.

BORDERS

It was a very ordinary dispute, this argument between Martha Jones and her neighbors.2 It was the sort of dispute that people have had since the start of neighborhoods. It didn’t begin in anger. It began with a misunderstanding. In this world, misunderstandings like this are far too common. Martha thought about that as she wondered whether she should stay; there were other 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 like a simple idea, one you would have thought the powers-that-be would have worked out 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 something of 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 flowers were also poisonous. This was Martha’s weird idea: to make flowers of extraordinary beauty which, if touched, would kill. Strange no doubt, but no one said that Martha wasn’t strange. 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, had a dog. Dank’s dog died. The dog died because it had eaten a petal from one 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 toomuch anger, or perhaps with anger appropriate to the situation.

“There is no reason to grow deadly flowers,” Dank yelled across the fence. “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? Get yourself a pain-free-death dog, andmy 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. (At first I had teleported to get near, but we needn’t compli- cate the story with jargon. Let’s just say I was walking.) I saw the two neighbors becoming increasingly angry with each other. I had heard about the disputed

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flowers—about how their petals carried poison. It seemed tome a simple prob- lem to solve, but I guess it’s simple only if you understand how problems like this are created.

Dank andMartha were angry because in a sense they were stuck. Both had built a life in the neighborhood; they had invested many hours there. But both were coming to understand its limits. This is a common condition:We all build our lives in places with limits.We are all disappointed at times.What was differ- ent about Dank andMartha?

One difference was the nature of the space, or context,where their argument was happening. This was not “real space”but virtual space. It was part of what I call “cyberspace.” The environment was a “massively multiple online game” (“MMOG”), andMMOG space is quite different from the space we call real.

Real space is the place where you are right now: your office, your den,maybe by a pool. It’s a world defined by both laws that areman-made and others that are not. “Limited liability” for corporations is a man-made law. It means that the directors of a corporation (usually) cannot be held personally liable for the sins of the company. Limited life for humans is not aman-made law: That we all will die is not the result of a decision that Congress made. 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. Our language is a norm; norms are collectively determined. As our norms have been determined, your “stealing”makes you a thief, and not just because you took it. There are plenty of ways to take something but not be thought of as a thief. If you came across a dollar blowing in the wind, taking themoney will notmake you a thief; indeed, not taking themoneymakes 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.

Some of these norms can be changed collectively, if not individually. I can choose to burn my draft card, but I cannot choose whether doing so will make me a hero or a traitor. I can refuse an invitation to lunch, but I cannot choose whether doing so will makeme rude. I have choices in real life, but escaping the consequences of the choices Imake is not one of them.Norms in this sense con- strain us in ways that are so familiar as to be all but invisible.

MMOG space is different. It is, first of all, a virtual space—like a cartoon on a television screen, sometimes rendered to look three-dimensional. But unlike a cartoon,MMOG space enables you to control the characters on the screen in real time. At least, you control your character—one among many characters con- trolled bymany others in this space.One builds the world one will inhabit here.

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As a child, you grew up learning the physics that governed the world of Road Runner andWile E. Coyote (violent but forgiving); your children will grow up making the world of Road Runner andWile E. Coyote (still violent, but maybe 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 MMOG space is unreal. There is real life in MMOG space, constituted by how people interact. The “space” describes where people interact—much as they interact in real space no doubt, but with some important differences. In MMOG space the interaction is in a virtual medium. This inter- action is “in” cyberspace. In 1990s terms, people “jack” into these virtual spaces, and they do things there. And “they” turns out to be many many people. As EdwardCastronova estimates,“an absoluteminimum figure would be 10million [butmy] guess is that it is perhaps 20 to 30million”participating in these virtual worlds.3 The “[t]ypical user spends 20–30 hours per week inside the fantasy. Power users spend every available moment.”4 As one essay estimates,“assuming just average contact time among these 9.4 million people, subscribers to virtual worlds could be devoting over 213 million hours per week to build their virtual lives.”5

The things people do there are highly varied. Some play role-playing games: working within a guild of other players to advance in status and power to some ultimate end. 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 typemessages to each other.Or they walk around (again, the ambigu- ity is not a slight one) and talk to people. My friend Rick does this as a cat—a male cat, he insists. As a male cat, Rick parades around this space and talks to anyone who’s interested. He aims to flush out the cat-loving sorts. The rest, he reports, he punishes.

Others domuchmore than gab. Some, for example, homestead.Depending on the world and its laws, citizens are given or buy plots of undeveloped land, which they then develop. People spend extraordinary amounts of time building a life on these plots. (Isn’t it incredible the way these people waste time? While you and I spend up to seventy hours a week working for firms we don’t own and building futures we’re not sure we’ll enjoy, these people are designing and build- ing things andmaking a life, even if only a virtual one. Scandalous!) They build houses—by designing and then constructing them—have family or friendsmove in, and pursue hobbies or raise pets. They may grow trees or odd plants—like Martha’s.

MMOG space grew out of “MUD” or “MOO” space.6 MUDs and MOOs are virtual worlds, too, but they are text-based virtual worlds. There are no real graphics in a MUD or MOO, just text, reporting what someone says and does.

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