government plenty of power. Thus, much of the argument from Part I survives this point about open code — if the world becomes certificate-rich, regulability still increases. The same conclusion follows if more code were burned into hardware rather than left to exist as software. Then, even if the code were open, it would not be modifiable[26].
But when designing an architecture for cyberspace, the margins matter. The values of a given space are not only the values of speech, autonomy, access, or privacy. They may also be values of limited control. As John Perry Barlow puts it, they are the values of a certain bug being programmed into the architecture of the Net — a bug that inhibits the power of government to control the Net perfectly, even if it does not disable that power entirely.
For some, the objective is to build code that disables any possible governmental control. That is not my objective. I certainly believe that government must be constrained, and I endorse the constraints that open code imposes, but it is not my objective to disable government generally. As I’ve argued already, and as the next part makes plain, some values can be achieved only if government intervenes. Government has a role, even if not as substantial a role as it would wish. We need to understand this role, as well as how our values might be advanced in the context of the Web.
One constraint seems clear in this account. As I argue more extensively later in the book, even if open code does not disable government’s power to regulate completely, it certainly changes that power. On the margin, open code reduces the reward from burying regulation in the hidden spaces of code. It functions as a kind of Freedom of Information Act for network regulation. As with ordinary law, open code requires that lawmaking be public, and thus that lawmaking be transparent. In a sense that George Soros ought to understand, open code is a foundation to an open society.
Even this is an important — some might say an essential — check on the power of government. But whether or not one is for transparency generally, my aim so far is just to map out the links. Regulability is conditional on the character of the code, and open code changes that character. It is a limit on government’s power to regulate — not necessarily by defeating the power to regulate, but by changing it.
Part Three - Latent Ambiguities
The story so far has focused on regulation — both the changing regulability of behavior in cyberspace (it is increasing) and the distinctive way in which behavior in cyberspace will be regulated (through code).
In this Part, I apply the analysis drawn so far to three areas of social and political life that will be affected by these changes — intellectual property, privacy, and free speech.
In each of these areas, I will identify values that are relevant. I will then ask how those values translate to life online. In some cases, the values carry over quite directly, but, in others, they produce what I called in Chapter 2 a “latent ambiguity.” That ambiguity forces us to choose between two very different conceptions of the value at stake. My aim is not to make that choice, but instead simply to throw at least two options into relief.
I have another objective in each chapter as well. In my view, the most important lesson about law in cyberspace is the need for law to account for the regulatory effect of code. Just as the wise regulator accounts for the way the market interacts with legal regulation, so too the wise regulator must account for the ways in which technology interacts with legal regulation. That interaction is often counterintuitive. But unless a regulator takes this interactive effect into account, the regulation — whether to control behavior or to protect certain liberties — will fail.
To know what values are relevant, however, we need a method for carrying values into a new context. I begin this part with an account of that method. The values I will describe are part of our tradition, and they need to be interpreted and made real in this context. Thus, I begin this part with one approach that the law has developed for recognizing and respecting these values. This is the interpretive practice I call “translation.” A translator practices a fidelity to earlier commitments to value. Latent ambiguities are those instances where fidelity runs out. We have nothing to be faithful to, because the choices we now face are choices that our forbears did not.[1]
Chapter 9. Translation
At the height of a previous war on drugs — Prohibition, in the late 1920s — the federal government began using a technique of police work that startled many but proved quite effective: wiretapping.[1] Life had just begun to move onto the wires, and, in an effort to take advantage of the evidence that this new medium might yield, the government began to tap phones without warrants.
Because law enforcement officials themselves were conflicted about the ethics of wiretapping, taps were used sparingly. Nonetheless, for threats perceived to be extremely grave, the technique was deployed. Illegal alcohol, the obsession of the age, was just such a threat.
The most famous of these taps led to the 1928 Supreme Court case Olmstead v. United States. The government was investigating one of the largest illegal liquor import, distribution, and sales organizations in the nation. As part of the investigation, the government began to tap the telephones used by dealers and their agents. These were private phones, but the taps were always secured without trespassing on the property of the targets[2]. Instead, the taps were placed on the wires in places where the government had rightful access to the phone lines.
Using these taps, the government recorded many hours of conversations (775 typewritten pages, according to Justice Louis Brandeis)[3], and it used these recordings to convict the defendants in the case. The defendants challenged the use of these recordings, claiming that the government had violated the Constitution in securing them. The Fourth Amendment protects “persons, houses, papers, and effects, against unreasonable searches and seizures, ” and this wiretapping, the defendants argued, was a violation of their right to be protected from unreasonable searches.
Under then-existing law, it was plain that to enter the apartments of alleged bootlegger Roy Olmstead and his associates and search them (at least while they were gone), the government investigators would have needed a warrant, that is, they would have needed the approval of a judge or magistrate before invading the defendants’ privacy. This is what the Fourth Amendment had come to mean — that certain places (persons, houses, papers, and effects) were protected by presumptively requiring a warrant before they could be invaded[4]. Here there had been no warrant, and hence, as the defendants argued, the search had been illegal. The evidence had to be excluded.
We might pause to ask why. If we read the text of the Fourth Amendment carefully, it is hard to see just where a warrant is required:
