Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather.
But here the bond between freedom and the absence of the state was said to be even stronger than in post-Communist Europe. The claim for cyberspace was not just that government would not regulate cyberspace — it was that government could not regulate cyberspace. Cyberspace was, by nature, unavoidably free. Governments could threaten, but behavior could not be controlled; laws could be passed, but they would have no real effect. There was no choice about what kind of government to install — none could reign. Cyberspace would be a society of a very different sort. There would be definition and direction, but built from the bottom-up. The society of this space would be a fully self-ordering entity, cleansed of governors and free from political hacks.
I taught in Central Europe during the summers of the early 1990s; I witnessed through my students the transformation in attitudes about communism that I described above. And so I felt a bit of deja vu when, in the spring of 1995, while teaching the law of cyberspace, I saw in my students these very same post-communist thoughts about freedom and government. Even at Yale — not known for libertarian passions — the students seemed drunk with what James Boyle would later call the “libertarian gotcha[3]”: no government could survive without the Internet’s riches, yet no government could control the life that went on there. Real-space governments would become as pathetic as the last Communist regimes: It was the withering of the state that Marx had promised, jolted out of existence by trillions of gigabytes flashing across the ether of cyberspace.
But what was never made clear in the midst of this celebration was why. Why was cyberspace incapable of regulation? What made it so? The word itself suggests not freedom but control. Its etymology reaches beyond a novel by William Gibson ( Neuromancer, published in 1984) to the world of “cybernetics”, the study of control at a distance through devices[4]. So it was doubly puzzling to see this celebration of “perfect freedom” under a banner that aspires (to anyone who knows the origin, at least) to perfect control.
As I said, I am a constitutionalist. I teach and write about constitutional law. I believe that these first thoughts about government and cyberspace were just as misguided as the first thoughts about government after communism. Liberty in cyberspace will not come from the absence of the state. Liberty there, as anywhere, will come from a state of a certain kind. We build a world where freedom can flourish not by removing from society any self-conscious control, but by setting it in a place where a particular kind of self-conscious control survives. We build liberty as our founders did, by setting society upon a certain constitution.
But by “constitution” I don’t mean a legal text. Unlike my countrymen in Eastern Europe in the early 1990s, I am not trying to sell a document that our framers wrote in 1787. Rather, as the British understand when they speak of their “constitution”, I mean an architecture — not just a legal text but a way of life — that structures and constrains social and legal power, to the end of protecting fundamental values. (One student asked, “constitution” in the sense of “just one tool among many, one simple flashlight that keeps us from fumbling in the dark, or, alternatively . . . more like a lighthouse that we constantly call upon? ” I mean constitution as in lighthouse — a guide that helps anchor fundamental values.)
Constitutions in this sense are built, they are not found. Foundations get laid, they don’t magically appear. Just as the founders of our nation learned from the anarchy that followed the revolution (remember: our first constitution, the Articles of Confederation, was a miserable failure of do-nothingness), so too are we beginning to understand about cyberspace that this building, or laying, is not the work of an invisible hand. There is no reason to believe that the foundation for liberty in cyberspace will simply emerge. Indeed, the passion for that anarchy — as in America by the late 1780s, and as in the former Eastern bloc by the late 1990s — has faded. Thus, as our framers learned, and as the Russians saw, we have every reason to believe that cyberspace, left to itself, will not fulfill the promise of freedom. Left to itself, cyberspace will become a perfect tool of control.
Control. Not necessarily control by government, and not necessarily control to some evil, fascist end. But the argument of this book is that the invisible hand of cyberspace is building an architecture that is quite the opposite of its architecture at its birth. This invisible hand, pushed by government and by commerce, is constructing an architecture that will perfect control and make highly efficient regulation possible. The struggle in that world will not be government’s. It will be to assure that essential liberties are preserved in this environment of perfect control. As Siva Vaidhyanathan puts it,
While once it seemed obvious and easy to declare the rise of a ”network society” in which individuals would realign themselves, empower themselves, and undermine traditional methods of social and cultural control, it seems clear that networked digital communication need not serve such liberating ends[5].
This book is about the change from a cyberspace of anarchy to a cyberspace of control. When we see the path that cyberspace is on now — an evolution I describe below in Part I — we see that much of the “liberty” present at cyberspace’s founding will be removed in its future. Values originally considered fundamental will not survive. On the path we have chosen, we will remake what cyberspace was. Some of that remaking will make many of us happy. But some of that remaking, I argue, we should all regret.
Yet whether you celebrate or regret the changes that I will describe, it is critical to understand how they happen. What produced the “liberty” of cyberspace, and what will change to remake that liberty? That lesson will then suggest a second about the source of regulation in cyberspace.
That understanding is the aim of Part II. Cyberspace demands a new understanding of how regulation works. It compels us to look beyond the traditional lawyer’s scope — beyond laws, or even norms. It requires a broader account of “regulation”, and most importantly, the recognition of a newly salient regulator.
That regulator is the obscurity in this book’s title — Code. In real space, we recognize how laws regulate — through constitutions, statutes, and other legal codes. In cyberspace we must understand how a different “code” regulates — how the software and hardware (i.e., the “code” of cyberspace) that make cyberspace what it is also regulate cyberspace as it is. As William Mitchell puts it, this code is cyberspace’s “law.[6]” “Lex Informatica”, as Joel Reidenberg first put it[7], or better, “code is law.”
Lawyers and legal theorists get bothered, however, when I echo this slogan. There are differences, they insist, between the regulatory effects produced by code and the regulatory effects produced by law, not the least of which is the difference in the “internal perspective” that runs with each kind of regulation. We understand the internal perspective of legal regulation — for example, that the restrictions the law might impose on a company’s freedom to pollute are a product of self-conscious regulation, reflecting values of the society imposing that regulation. That perspective is harder to recognize with code. It could be there, but it need not. And no doubt this is just one of many important differences between “code” and “law.”
I don’t deny these differences. I only assert that we learn something useful from ignoring them for a bit. Justice Holmes famously focused the regulator on the “bad man.[8]
