Code 2.0

See Mitchell Kapor, 'The Software DesignManifesto,' available at http://hci.stanford.edu/bds/1-kapor.html (cached: http://www.webcitation.org/5IwlcyQ3F); David Farber, 'A Note on the Politics of Privacy and Infrastructure,' November 20, 1993, available at http://www.interesting-people.org/archives/interesting- people/199311/msg00088.html (cached: http://www.webcitation.org/5IwlerVLw); 'Quotations,' available at http://www.cs.arizona.edu/icon/oddsends/farber.htm (cached: http://www.webcitation.org/5IwlhA4Sz); see also Pamela Samuelson et al., 'A Manifesto Concerning the Legal Protection of Computer Programs,' Columbia Law Review 94 (1994): 2308. Steven Johnson powerfully makes a similar point: 'All works of architecture imply a worldview, which means that all architecture is in some deeper sense political'; see Interface Culture: 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.

23.

Jed Rubenfeld has developed most extensively an interpretive theory that grounds meaning in a practice of reading across time, founded on paradigm cases; see 'Reading the Constitution as Spoken,' Yale Law Journal 104 (1995): 1119, 1122; and 'On Fidelity in Constitutional Law,' Fordham Law Review 65 (1997): 1469. See also Jed Rubenfeld, Freedom and Time: A Theory of Constitutional Government (New Haven: Yale University Press, 2001).

24.

See Minnesota v. Dickerson, 508 US 366, 380 (1993) (Justice Antonin Scalia concurring: 'I frankly doubt . . . whether the fiercely proud men who adopted our Fourth Amendment would have allowed themselves to be subjected, on mere suspicion of being armed and dangerous, to such indignity. . . .').

25.

See Steve Silberman, 'We're Teen, We're Queer, and We've Got E-Mail,' Wired (Novem ber 1994): 76, 78, 80, reprinted in Composing Cyberspace: Identity, Community, and Knowledge in the Electronic Age, edited by Richard Holeton (Boston: McGraw-Hill, 1998), 116.

26.

Cf. United States v. Lamb, 945 F.Supp 441 (NDNY 1996). (Congress's intent in passing the Child Protection Act was to regulate child pornography via computer transmission, an interest legitimately related to stemming the flow of child pornography.)

Part I notes

Chapter Three notes

1.

David Johnson and David Post, 'Law and Borders — The Rise of Law in Cyberspace,' Stanford Law Review 48 (1996): 1367, 1375.

2.

Tom Steinert-Threlkeld, 'Of Governance and Technology,' Inter@ctive WeekOnline, October 2, 1998.

3.

J. C. Herz, Surfing on the Internet: A Nethead's Adventures On-Line (Boston: Little, Brown, 1995), 2–3.

4.

The design of the network has changed slightly in the years since this was written. Some authentication is now required on the Chicago network, but once Ethernet ports have been assigned an IP address, that address remains 'as long as it doesn't misbehave, we won't know that has happened. In that sense, it is much the way it was.' Audio Tape: Interview with Greg Jackson (1/9/06) (on file with author).

5.

See Helen Nissenbaum, 'Values in the Design of Computer Systems,' Computers and Society (March 1998): 38.

6.

As network adminstrator Greg Jackson described to me, while certain ports (including the wireless network) require that the user initially register the machine, there is no ongoing effort to verify the identity of the user. And, more importantly, there are still a significant number of ports which remain essentially unregulated. That doesn't mean that usage, however, isn't regulated. As Jackson described, 'But the truth is, if we can identify a particular peer-to-peer network that is doing huge movie sharing, we will assign it a lower priority so it simply moves slower and doesn't interfere with other people. So, we do a lot of packet shaping of that sort. Almost never does that extend to actually blocking particular sites, for example, although there are a few cases where we have had to do that just because . . .' According to Jackson, it is now Columbia that earns the reputation as the free-est network. 'Columbia . . . really doesn't ever try to monitor at all who gets on the wired network on campus. They just don't bother with that. Their policy is that they protect applications, not the network.' Audio Tape: Interview with Greg Jackson (1/9/06) (on file with author).

7.

For an extremely readable description, see Peter Loshin_, TCP/IP Clearly Explained_ (San Francisco: