government, as much by stigma and intolerance as by the threat of state punishment. His objective was to argue against these private forces of coercion. His work was a defense against liberty-suppressing norms, because, in England at that time, these were the real threat to liberty.
Mill’s method is important, and it should be our own as well. It asks, What is the threat to liberty, and how can we resist it? It is not limited to asking, What is the threat to liberty from government? It understands that more than government can threaten liberty, and that sometimes this something more can be private rather than state action. Mill was not concerned with the source of the threat to liberty. His concern was with liberty.
Threats to liberty change. In England, norms may have been the threat to free speech in the late nineteenth century; I take it they are not as much a threat today. In the United States in the first two decades of the twentieth century, the threat to free speech was state suppression through criminal penalties for unpopular speech; the strong protections of the First Amendment now make that particular threat less significant.[2] The labor movement was founded on the idea that the market is sometimes a threat to liberty — not so much because of low wages, but because the market form of organization itself disables a certain kind of freedom.[3] In other societies, at other times, the market is a key to liberty, not the enemy.
Thus, rather than think of “liberty’s enemy” in the abstract, we should focus upon a particular threat to liberty that might exist in a particular time and place. And this is especially true when we think about liberty in cyberspace. I believe that cyberspace creates a new threat to liberty, not new in the sense that no theorist had conceived of it before,[4] but new in the sense of newly urgent. We are coming to understand a newly powerful regulator in cyberspace. That regulator could be a significant threat to a wide range of liberties, and we don’t yet understand how best to control it.
This regulator is what I call “code” — the instructions embedded in the software or hardware that makes cyberspace what it is. This code is the “built environment” of social life in cyberspace. It is its “architecture.”[5] And if in the middle of the nineteenth century the threat to liberty was norms, and at the start of the twentieth it was state power, and during much of the middle twentieth it was the market, then my argument is that we must come to understand how in the twenty-first century it is a different regulator — code — that should be our current concern.
But not to the exclusion of other significant “regulators.” My argument is not that there’s only one threat to liberty, or that we should forget other, more traditional threats. It is instead that we must add one more increasingly salient threat to the list. And to see this new, salient threat, I believe we need a more general understanding of how regulation works — one that focuses on more than the single influence of any one force such as government, norms, or the market, and instead integrates these factors into a single account.
This chapter is a step toward that more general understanding.[6] It is an invitation to think beyond the threat to liberty from government power. It is a map for this more general understanding.
A Dot’s Life
There are many ways to think about “regulation.” I want to think about it from the perspective of someone who is regulated, or, what is different, constrained. That someone regulated is represented by this (pathetic) dot — a creature (you or me) subject to different regulations that might have the effect of constraining (or as we’ll see, enabling) the dot’s behavior. By describing the various constraints that might bear on this individual, I hope to show you something about how these constraints function together.
Here then is the dot.
How is this dot “regulated”?
Let’s start with something easy: smoking. If you want to smoke, what constraints do you face? What factors regulate your decision to smoke or not?
One constraint is legal. In some places at least, laws regulate smoking — if you are under eighteen, the law says that cigarettes cannot be sold to you. If you are under twenty-six, cigarettes cannot be sold to you unless the seller checks your ID. Laws also regulate where smoking is permitted — not in O’Hare Airport, on an airplane, or in an elevator, for instance. In these two ways at least, laws aim to direct smoking behavior. They operate as a kind of constraint on an individual who wants to smoke.
But laws are not the most significant constraints on smoking. Smokers in the United States certainly feel their freedom regulated, even if only rarely by the law. There are no smoking police, and smoking courts are still quite rare. Rather, smokers in America are regulated by norms. Norms say that one doesn’t light a cigarette in a private car without first asking permission of the other passengers. They also say, however, that one needn’t ask permission to smoke at a picnic. Norms say that others can ask you to stop smoking at a restaurant, or that you never smoke during a meal. These norms effect a certain constraint, and this constraint regulates smoking behavior.
Laws and norms are still not the only forces regulating smoking behavior. The market is also a constraint. The price of cigarettes is a constraint on your ability to smoke — change the price, and you change this constraint. Likewise with quality. If the market supplies a variety of cigarettes of widely varying quality and price, your ability to select the kind of cigarette you want increases; increasing choice here reduces constraint.
Finally, there are the constraints created by the technology of cigarettes, or by the technologies affecting their supply.[7] Nicotine-treated cigarettes are addictive and therefore create a greater constraint on smoking than untreated cigarettes. Smokeless cigarettes present less of a constraint because they can be smoked in more places. Cigarettes with a strong odor present more of a constraint because they can be smoked in fewer places. How the cigarette is, how it is designed, how it is built — in a word, its architecture — affects the constraints faced by a smoker.
Thus, four constraints regulate this pathetic dot — the law, social norms, the market, and architecture — and the “regulation” of this dot is the sum of these four constraints. Changes in any one will affect the regulation of the whole. Some constraints will support others; some may undermine others. Thus, “changes in technology may usher in changes in . . . norms”,[8] and the other way around. A complete view, therefore, must consider these four modalities together.
So think of the four together like this:
In this drawing, each oval represents one kind of constraint operating on our pathetic dot in the center. Each constraint imposes a different kind of cost on the dot for engaging in the relevant behavior — in this case, smoking. The cost from norms is different from the market cost, which is different from the cost from law and the cost from the (cancerous) architecture of cigarettes.
