speech being protected?
I have not tried to be comprehensive. But I have pushed for a view that addresses the relationship between architectures and speech globally and uses constitutional values to think not just about what is permitted given a particular architecture, but also about which architectures are permitted. Our real-space constitution should inform the values of our cyberspace constitution. At the least, it should constrain the state in its efforts to architect cyberspace in ways that are inconsistent with those values.
Chapter 13. Interlude
Let’s pause for a moment and look back over these three chapters. There is a pattern to the problems they present — a way of understanding how all three problems are the same.
In one sense, each has asked: How much control should we allow over information, and by whom should this control be exercised? There is a battle between code that protects intellectual property and fair use; there is a battle between code that might make a market for privacy and the right to report facts about individuals regardless of that market; there is a battle between code that enables perfect filtering of speech and architectures that ensure some messiness about who gets what. Each case calls for a balance of control.
My vote in each context may seem to vary. With respect to intellectual property, I argue against code that tracks reading and in favor of code that guarantees a large space for an intellectual commons. In the context of privacy, I argue in favor of code that enables individual choice — both to encrypt and to express preferences about what personal data is collected by others. Code would enable that choice; law could inspire that code. In the context of free speech, however, I argue against code that would perfectly filter speech — it is too dangerous, I claim, to allow perfect choice there. Better choice, of course, is better, so code that would empower better systems of reputation is good, as is code that would widen the legitimate range of broadcasting.
The aim in all three contexts is to work against centralized structures of choice. In the context of filtering, however, the aim is to work against structures that are too individualized as well.
You may ask whether these choices are consistent. I think they are, but it’s not important that you agree. You may believe that a different balance makes sense — more control for intellectual property or filtering perhaps, and less for privacy. My real interest is in conveying the necessity of such balancing and of the values implicit in the claim that we will always require a balance. Always there is a competition between the public and private; always the rights of the private must be balanced against the interests of the public. Always a choice must be made about how far each side will be allowed to reach. These questions are inherent to public law: How will a particular constellation of constitutional values be reckoned? How will a balance be struck in particular factual contexts?
I have argued this point while neglecting to specify who is responsible for any given imbalance. There are those who would say that there is too much filtering, or not enough privacy, or too much control over intellectual property, but these are not public concerns unless the government is responsible for these imbalances. Constitutional value in the United States extends only so far as state action extends. And I have not shown just how state action extends to these contexts.
I do not intend to. In my view, our tradition reveals at least an ambiguity about how far constitutional values are to extend. In a world where only governments are regulators, keeping the Constitution’s authority limited to state action makes some sense. But when the modalities of regulation are multiplied, there is no reason to ignore the reach of constitutional values. Our framers made no choice about this; there is no reason why regulation through code cannot be informed by constitutional values. No argument has been made for why this part of our life should be cut off from the limitations and protections traditionally provided by the Constitution.
Code strikes the balance between individual and collective rights that I have highlighted so far. In the next chapter, a different balance is struck — one again made salient by code. However, this time the balance is not between the state and the individual but between the state and the implicit regulations of the architectures of cyberspace. Now the threat is to a traditional sovereignty. How do we translate that tradition to fit a world where code is law?
Part Four - Competing Sovereigns
Sovereigns take themselves very seriously — especially sovereigns in cyberspace. Each has a strong sense of its own domain, and sometimes that sense translates into dominance in other domains. As more move online, the claims of one sovereign to control speech or behavior will increasingly conflict with the claims others sovereigns. That conflict will prove to be the most important generative fact for the Internet to be.
I approach the question of this conflict in two steps. The first chapter in this Part addresses the question of sovereignty independently of the question of conflict. What does sovereignty mean? How is it manifest? The next chapter then focuses upon the particular dynamic that the conflict among sovereigns will create. That conflict, I argue, will press the architecture of the Internet to a certain familiar form.
Chapter 14. Sovereignty
Vietnam is a Communist nation. It is one of the few remaining Communist states, and, of course, its communism is nothing like the communism that gave birth to the Cold War. But nonetheless, it is a sovereign nation that still links its identity to Marx and Lenin (through Chairman Ho).
The United States is not a Communist nation. Defeated by Vietnam, but a victor in the Cold War, we are a nation that in large part defines itself in opposition to the ideology of Marx and Lenin. Vietnam sets the state in service of the withering of the state as its ideal; the United States sets the withered state in the service of liberty as its ideal. Control is the model of communism; freedom is the model of the United States.
Or so we are to think.
I confess a certain fascination with Communist states. In the early 1980s I wandered through every European Communist state that would let me in. In the early 1990s, I worked with constitutionalists in Georgia as they drafted their constitution. And in 1996, I spent much of the summer wandering through Vietnam. Alone and e-mail-free, I tried to understand this place that in my childhood fell victim to my nation’s exported struggle with the Cold War.
Though I’ve been to many different places around the world, I’ve never been to a place more spectacular. One is always overwhelmed by forgiveness, and an American can’t help being overwhelmed by this nation’s warmth and welcome. Perhaps had we “won” the war forgiveness would not be so forthcoming. But it apparently comes easily to those who did win.
