Themes
Four stories, four themes, each a window into one aspect of cyberspace that will be central in all that follows. My aim in the balance of this book is to work through the issues raised by these four themes. I thus end this chapter with a map of the four, laid out in the order they will appear in the balance of the book. That order begins with story number two.
Regulability
“Regulability” is 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 (at least) its citizens while on the Net. The story about Boral was thus a story 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 commercial gambling within her jurisdiction; after the Internet, when the servers moved outside of Boral, regulation became much more difficult.
For the regulator, this is just a particular instance of a much more general story. To regulate well, you need to know (1) who someone is, (2) where they are, and (3) what they’re doing. But because of the way the Internet was originally designed (and more on this below), there was no simple way to know (1) who someone is, (2) where they are, and (3) what they’re doing. Thus, as life moved onto (this version of) the Internet, the regulability of that life decreased. The architecture of the space — at least as it was — rendered life in this space less regulable.
The balance of Part I is about regulability. Can we imagine a more regulable cyberspace? Is this the cyberspace we are coming to know?
Regulation by Code
The story about Martha and Dank is a clue to answering this question about regulability. If in MMOG space we can change the laws of nature — make possible what before was impossible, or make impossible what before was possible — why can’t we change regulability in cyberspace? Why can’t we imagine an Internet or a cyberspace where behavior can be controlled because code now enables that control?
For this, importantly, is just what MMOG space is. MMOG space is “regulated”, though the regulation is special. In MMOG space regulation comes through code. Important rules are imposed, not through social sanctions, and not by the state, but by the very architecture of the particular space. A rule is defined, not through a statute, but through the code that governs the space.
This is the second theme of this book: There is regulation of behavior on the Internet and in cyberspace, but that regulation is imposed primarily through code. The differences in the regulations effected through code distinguish different parts of the Internet and cyberspace. In some places, life is fairly free; in other places, it is more controlled. And the difference between these spaces is simply a difference in the architectures of control — that is, a difference in code.
If we combine the first two themes, then, we come to a central argument of the book: The regulability described in the first theme depends on the code described in the second. Some architectures of cyberspace are more regulable than others; some architectures enable better control than others. Therefore, whether a part of cyberspace — or the Internet generally — can be regulated turns on the nature of its code. Its architecture will affect whether behavior can be controlled. To follow Mitch Kapor, its architecture is its politics[22].
And from this a further point follows: If some architectures are more regulable than others — if some give governments more control than others — then governments will favor some architectures more than others. Favor, in turn, can translate into action, either by governments, or for governments. Either way, the architectures that render space less regulable can themselves be changed to make the space more regulable. (By whom, and why, is a matter we take up later.)
This fact about regulability is a threat to those who worry about governmental power; it is a reality for those who depend upon governmental power. Some designs enable government more than others; some designs enable government differently; some designs should be chosen over others, depending upon the values at stake.
Latent Ambiguity
The worm tells a different story still. Though it is a technology for searching, the worm’s function differs from “searching” in real space. In real space, a search carries costs: the burdens of the search, the insecurities it might create, the exposure it might make possible to invasions beyond a legitimate reach[23]. 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 raises a question 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 the amendment was written to protect[24], or it may be that we see the invasion of the worm as so unobtrusive as to be reasonable. The answer could be either, which means that the change reveals what I will call “a latent ambiguity” in the original constitutional rule. In the original context, the rule was clear (no generalized search), but in the current context, the rule depends upon which value the Constitution was meant to protect. The question is now ambiguous between (at least) two different answers. Either answer is possible, depending upon the value, so now we must choose one or the other.
You may not buy my story about the worm. You may think it is pure science fiction. But by the end of the book, I will convince you that there are any number of cases in which a similar ambiguity troubles our constitutional past. In many of them our Constitution yields no answer to the question of how it should be applied, because at least two answers are possible — in light of the choices that the framers actually made and given the technologies of today.
For Americans, this ambiguity creates a problem. If we lived in an era when courts felt entitled to select the value that produced an answer that made the most sense in the context, there would be no problem. Latent ambiguities would be answered by choices made by judges — the framers could have gone either way, but our judges 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 resolve these ambiguities. As
