be as absolute as present constitutional thinking makes it. When we lawyers tell the Jean Camps of the world that they are simply making a “mistake” when they bring the values of public law to code, it is rather we who are making the mistake. Whether code should be tested with these constraints of public value is a question, not a conclusion. It needs to be decided by argument, not definition.
This won’t be easy, of course. Code is technical; courts aren’t well positioned to evaluate such technicality. But even so, the failure is not even to try. The formalism in American law, which puts beyond review these structures of control, is a third pathology that inhibits choice. Courts are disabled, legislatures pathetic, and code untouchable. That is our present condition. It is a combination that is deadly for action — a mix that guarantees that little good gets done.
Chapter 17. Responses
We need a plan. I’ve told a dark story about the choices that a changing cyberspace is presenting, 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 this short chapter, I consider three responses. These responses are nothing more than sketches, but they should be enough to suggest the nature of the changes we need to make.
Responses of a Judiciary
I’ve said that we should understand judicial hesitancy as grounded in prudence. When so much seems possible, and when a rule is not clearly set, it is hard for a court to look like a court as it decides what policies seem best.[1]
Although 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 the source of the judge’s difficulty. Sometimes a certain hesitation before resolving the questions of the Constitution in cyberspace finally, or firmly, or with any pretense to permanence, is entirely appropriate. But in other cases, judges — especially lower court judges — should be stronger, because there are many of them and because many are extraordinarily talented and creative. Their voices would teach us something here, even if their rulings were temporary or limited in scope.
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 to preserve 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 ignore them, we should do so only because they have been rejected — not by a court but by the people.
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 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 make bad law, but neither should they be treated as if they are 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 the courts may inspire others to decide them.
This is the idea behind the doctrine of a second look outlined twenty years ago by Guido Calabresi, a professor at the time who is now a judge.[2] Brutally simplified, the idea is this: When the Supreme Court confronts issues that present open, yet fundamental questions of value, it should be open about the conflict and acknowledge that it is not plainly resolved by the Constitution. But the Court should nonetheless proceed to resolve it in the way most likely to induce democratic review of the resolution. If the resolution induces the proper review, the Court should let stand the results of that review. The most the Court should do in such cases is ensure that democracy has its say; its job is not to substitute its values for the views of democrats.
Many ridicule this solution.[3] Many argue that the framers clearly had nothing like this 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 not designed for the problems the framers had in mind. As a response to the problems of 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 the democratic 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 we might 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 than on the side of debilitating passivity. It is a tiny role for courts to play in the much larger conversation we need to have — but to date have not started.
Responses for Code
A second challenge is confronting the law in code — resolving, that is, just how we think about the regulatory power of code. Here are a number of ideas that together would push us toward a world where regulation imposed through code would have to satisfy constitutional norms.
Here again is the link to open code. In Chapter 8, when I described a kind of check that open code would impose on government regulation, I argued that it was harder for 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 to disabling government’s power, this change cannot be unambiguously good.
But there are two parts to the constraint that open code might impose; one is certainly good, and the other is not necessarily 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 second 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 required that new cars have automatic seatbelts. This was the regulation of code — the car would be made safer by regulating the code to force
