that plugs the hole in the theory of Code v1. Code v1 described the means. Z-theory provides the motive.
There was an awful movie released in 1996 called Independence Day. The story is about an invasion by aliens. When the aliens first appear, many earthlings are eager to welcome them. For these idealists, there is no reason to assume hostility, and so a general joy spreads among the hopeful across the globe in reaction to what before had seemed just a dream: really cool alien life.
Soon after the aliens appear, however, and well into the celebration, the mood changes. Quite suddenly, Earth’s leaders realize that the intentions of these aliens are not at all friendly. Indeed, they are quite hostile. Within a very short time of this realization, Earth is captured. (Only Jeff Goldblum realizes what’s going on beforehand, but he always gets it first.)
My story here is similar (though I hope not as awful). We have been as welcoming and joyous about the Net as the earthlings were about the aliens in Independence Day; we have accepted its growth in our lives without questioning its final effect. But at some point, we too will come to see a potential threat. We will see that cyberspace does not guarantee its own freedom but instead carries an extraordinary potential for control. And then we will ask: How should we respond?
I have spent many pages making a point that some may find obvious. But I have found that, for some reason, the people for whom this point should be most important do not get it. Too many take this freedom as nature. Too many believe liberty will take care of itself. Too many miss how different architectures embed different values, and that only by selecting these different architectures — these different codes — can we establish and promote our values.
Now it should be apparent why I began this book with an account of the rediscovery of the role for self- government, or control, that has marked recent history in post-Communist Europe. Market forces encourage architectures of identity to facilitate online commerce. Government needs to do very little — indeed, nothing at all — to induce just this sort of development. The market forces are too powerful; the potential here is too great. If anything is certain, it is that an architecture of identity will develop on the Net — and thereby fundamentally transform its regulability.
But isn’t it clear that government should do something to make this architecture consistent with important public values? If commerce is going to define the emerging architectures of cyberspace, isn’t the role of government to ensure that those public values that are not in commerce’s interest are also built into the architecture?
Architecture is a kind of law: It determines what people can and cannot do. When commercial interests determine the architecture, they create a kind of privatized law. I am not against private enterprise; my strong presumption in most cases is to let the market produce. But isn’t it absolutely clear that there must be limits to this presumption? That public values are not exhausted by the sum of what IBM might desire? That what is good for America Online is not necessarily good for America?
Ordinarily, when we describe competing collections of values, and the choices we make among them, we call these choices “political.” They are choices about how the world will be ordered and about which values will be given precedence.
Choices among values, choices about regulation, about control, choices about the definition of spaces of freedom — all this is the stuff of politics. Code codifies values, and yet, oddly, most people speak as if code were just a question of engineering. Or as if code is best left to the market. Or best left unaddressed by government.
But these attitudes are mistaken. Politics is that process by which we collectively decide how we should live. That is not to say it is a space where we collectivize — a collective can choose a libertarian form of government. The point is not the substance of the choice. The point about politics is process. Politics is the process by which we reason about how things ought to be.
Two decades ago, in a powerful trilogy drawing together a movement in legal theory, Roberto Unger preached that “it’s all politics.”[44] He meant that we should not accept that any part of what defines the world is removed from politics — everything should be considered “up for grabs” and subject to reform.
Many believed Unger was arguing that we should put everything up for grabs all the time, that nothing should be certain or fixed, that everything should be in constant flux. But that is not what he meant.
His meaning was instead just this: That we should interrogate the necessities of any particular social order and ask whether they are in fact necessities, and we should demand that those necessities justify the powers that they order. As Bruce Ackerman puts it, we must ask of every exercise of power: Why?[45] Perhaps not exactly at the moment when the power is exercised, but sometime.
“Power”, in this account, is just another word for constraints that humans can do something about. Meteors crashing to earth are not “power” within the domain of “it’s all politics.” Where the meteor hits is not politics, though the consequences may well be. Where it hits, instead, is nothing we can do anything about.
But the architecture of cyberspace is power in this sense; how it is could be different. Politics is about how we decide, how that power is exercised, and by whom.
If code is law, then, as William Mitchell writes, “control of code is power”: “For citizens of cyberspace, . . . code . . . is becoming a crucial focus of political contest. Who shall write that software that increasingly structures our daily lives? ”[46] As the world is now, code writers are increasingly lawmakers. They determine what the defaults of the Internet will be; whether privacy will be protected; the degree to which anonymity will be allowed; the extent to which access will be guaranteed. They are the ones who set its nature. Their decisions, now made in the interstices of how the Net is coded, define what the Net is.
How the code regulates, who the code writers are, and who controls the code writers — these are questions on which any practice of justice must focus in the age of cyberspace. The answers reveal how cyberspace is regulated. My claim in this part of the book is that cyberspace is regulated by its code, and that the code is changing. Its regulation is its code, and its code is changing.
We are entering an age when the power of regulation will be relocated to a structure whose properties and possibilities are fundamentally different. As I said about Russia at the start of this book, one form of power may be destroyed, but another is taking its place.
Our aim must be to understand this power and to ask whether it is properly exercised. As David Brin asks, “If we admire the Net, should not a burden of proof fall on those who would change the basic assumptions that brought it about in the first place? ”[47]
These “basic assumptions” were grounded in liberty and openness. An invisible hand now threatens both. We need to understand how.
One example of the developing struggle over cyber
