Code 2.0

48.

See Neil M. Richards, 'Reconciling Data Privacy and the First Amendment,' UCLA Law Review 52 (2005): 1148, 116. Richards rightly identifies the brilliant Eugene Volokh as the strongest proponent of the view that the First Amendment restricts privacy property. But the comprehensive view Richards offers of the range of rules regulating privacy is quite persuasive against the Volokh position.

49.

William McGeveran, 'Programmed Privacy Promises: P3P and Web Privacy Law,' New York University Law Review 76 (2001): 1813, 1843.

50.

The important limit to contracts, however, is that they typically bind only people 'within privity,' meaning parties to the contract. Thus, an agreement I enter in with you about how you promise not to use a book I've sold you (e.g., a promise not to review it before a certain date) won't bind someone else who comes across the book and reads it.

51.

As described above, the weakness is linked to the point above about 'privity.' Unlike a rule of property that travels automatically with the property, a rule built out of agreements reaches only as far as the agreements.

52.

Barlow, 'The Economy of Ideas,' Wired (March 1994), available at http://www.wired.com/wired/archive/2.03/economy.ideas.html (cached: http://www.webcitation.org/5J6lk1mDt) ('informa tion wants to be free').

Chapter Twelve Notes

1.

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.

2.

See Strafgesetzbuch (penal code) (StGB) 130–31, reprinted in German Criminal Law, vol. 1, edited by Gerold Harfst, translated by Otto A. Schmidt (W–rzburg: Harfst Verlag, 1989), 75–76.

3.

Built by industry but also especially by Cypherpunks — coders dedicated to building the tools for privacy for the Internet. As Eric Hughes writes in 'A Cypherpunk's Manifesto' (in Applied Cryptography, 2d ed., by Bruce Schneier New York: Wiley, 1996, 609): 'We the Cypherpunks are dedicated to building anonymous systems. We are defending our privacy with cryptography, with anonymous mail forwarding systems, with digital signatures, and with 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 is free for all to use, worldwide.'

4.

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/Misc/Publications/John_Perry_Barlow/HTML/leaving_the_physical_world.html (cached: http://www.webcitation.org/5J6lmf9hY).

5.

Or it may well be that our understanding of First Amendment doctrine is insufficiently focused on its history with electronic media. See Marvin Ammori, 'Another Worthy Tradition: How the Free Speech Curriculum Ignores Electronic Media and Distorts Free Speech Doctrine,' Missouri Law Review 70 (2005): 59.

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.