freedoms is the still-not-free China. The Chinese government has taken an increasingly aggressive stand against behavior in cyberspace that violates real-space norms. Purveyors of porn get 10 years in jail. Critics of the government get the same. If this is the people’s republic, this is the people’s tough love.
To make these prosecutions possible, the Chinese need the help of network providers. And local law requires that network providers in China help. So story after story now reports major network providers — including Yahoo! and Microsoft — helping the government do the sort of stuff that would make our Constitution cringe.
The extremes are bad enough. But the more revealing example of the pattern I’m describing here is Google. Google is (rightly) famous for its fantastic search engine. Its brand has been built on the idea that no irrelevant factor controls its search results. Companies can buy search words, but their results are bracketed and separate from the main search results. The central search results — that part of the screen your eyes instinctively go to — are not to be tampered with.
Unless the company seeking to tamper with the results is China, Inc. For China, Google has promised to build a special routine.[48] Sites China wants to block won’t appear in the Google.CN search engine. No notice will be presented. No system will inform searchers that the search results they are reading have been filtered by Chinese censors. Instead, to the Chinese viewer, this will look like normal old Google. And because Google is so great, the Chinese government knows most will be driven to Google, even if Google filters what the government doesn’t want its people to have.
Here is the perfect dance of commerce with government. Google can build the technology the Chinese need to make China’s regulation more perfectly enabled, and China can extract that talent from Google by mandating it as a condition of being in China’s market.
The value of that market is thus worth more to Google than the value of its “neutral search” principle. Or at least, it better be, if this deal makes any sense.
My purpose here is not to criticize Google — or Microsoft, or Yahoo! These companies have stockholders; maximizing corporate value is their charge. Were I running any of these companies, I’m not sure I would have acted differently.
But that in the end is my point: Commerce has a purpose, and government can exploit that to its own end. It will, increasingly and more frequently, and when it does, the character of the Net will change.
Radically so.
Part Two - Regulation By Code
The lesson of the last part was that the interaction between commerce and government will change the effective architecture of the Internet. That change will increase the regulability of behavior on the Internet. Powder will be sprayed on the invisible men of cyberspace, and after the spray, their exploits will be more easily known.
But so far my story has not changed the basic mode by which government regulates. So far, the government threatens punishment, and that threat is intended to create the incentive for individuals to obey the government’s rule. The changes in the effective architecture of cyberspace that I have described would simply make it easier for the state to make good on its threat, and that would reduce the expected value of criminal behavior (preferably below zero). Traceability will increase effective enforcement; effective enforcement will increase the costs of deviating from a state-specified rule.
In this part, I consider a different kind of regulation. The question here is not how the architecture of the Net will make it easier for traditional regulation to happen. The issue here is how the architecture of the Net — or its “code” — itself becomes a regulator. In this context, the rule applied to an individual does not find its force from the threat of consequences enforced by the law — fines, jail, or even shame. Instead, the rule is applied to an individual through a kind of physics. A locked door is not a command “do not enter” backed up with the threat of punishment by the state. A locked door is a physical constraint on the liberty of someone to enter some space.
My claim is that this form of regulation will become increasingly common in cyberspace. And it has, moreover, a distinctive and often counter-intuitive character. The aim of this part is to explore this distinctive mode of regulation as a step to understanding more systematically the interaction between technology and policy.
Chapter 6. Cyberspaces
I’ve said we can distinguish the Internet from cyberspace. To make the distinctive form of regulation that is the subject of this part salient, we need to say a bit more about this distinction. The Internet is a medium of communication. People do things “on” the Internet. Most of those things are trivial, even if important. People pay bills on the Internet, they make reservations at restaurants. They get their news from the Internet. They send news to family members using e-mail or IM chat. These uses are important in the sense that they affect the economy and make life easier and harder for those using the Internet. But they’re not important in the sense that they change how people live. It’s very cool that you can buy books with one click at Amazon. I buy tons (maybe literally) of books I wouldn’t otherwise have bought. But my life has not been changed by one-click (even if my bank account has). It’s been made easier and more literate, but not anything fundamentally different.
Cyberspace, by contrast, is not just about making life easier. It is about making life different, or perhaps better. It is about making a different (or second) life. It evokes, or calls to life, ways of interacting that were not possible before. I don’t mean that the interaction is new — we’ve always had communities; these communities have always produced something close to what I will describe cyberspace to have produced. But these cyberspace communities create a difference in degree that has matured into a difference in kind. There is something unique about the interactions in these spaces, and something especially unique about how they are regulated.
Life in cyberspace is regulated primarily through the code of cyberspace. Not regulated in the sense of Part I — my point is not that the code makes it easy to know who did what so that penalties can be visited upon those who behaved badly. Regulated in the sense that bars on a prison regulate the movement of a prisoner, or regulated in the sense that stairs regulate the access of the disabled. Code is a regulator in cyberspace because it defines the terms upon which cyberspace is offered. And those who set those terms increasingly recognize the code as a means to achieving the behaviors that benefit them best.
And so too with the Internet. Code on the Internet is also a regulator, and people live life on the Internet subject to that regulation. But my strategy in this chapter is to begin with the more obscure as a way to build recognition about the familiar. Once you see the technique applied to worlds you are unlikely to inhabit, you will recognize the technique applied to the world you inhabit all the time.
Cyberspace is not one place. It is many places. And the character of these many places differ in ways that are fundamental. These differences come in part from differences in the people who populate these places, but demographics alone don’t
