But why was never made clear. That cyberspace was a place that governments could not control was an idea that I never quite got. The word itself speaks not of freedom but of 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.¹ Cybernetics had a vision of perfect regulation. Its very motivation was finding a better way to direct. Thus, it was doubly odd to see this celebration of non-control over architectures born from the very ideal of control.

[This paragraph has always struck me as weak. The word "cyberspace" was appropriated because it was *needed*, and the Greek origins of the word had little if any relevance. Gibson certainly didn't have it in mind. I would suggest that in its early days of widespread use, the net *appeared* to have an autonomy with respect to law and custom that was founded on empirical experience, i.e., the observed inability of anyone outside the technical elite to have much effect on the net's development because of their technical incompetence, ignorance, and presumed inability to remedy the same. The technically skilled folks who made it work were enormously confident--arrogant, really--about their ability to ignore, evade, or counter the lame effects of various old-fashioned organizations to regulate the net.]

Note: the markup isn't working as advertised here (and/or I don't understand how it's supposed to). I selected part of a paragraph, applied the "needs work" block style, and the whole page got marked as such. Bug??

As I said, I am a constitutionalist. I teach and write about constitutional law. I believe that these first thoughts about government and cyberspace are 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.² We build a world where freedom can flourish not by removing from society any self-conscious control; we build a world where freedom can flourish by setting it in a place where a particular kind of self-conscious control survives. We build liberty, that is, 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, 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—principles and ideals that reach beyond the compromises of ordinary politics.

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 see in cyberspace that this building, or laying, is not the work of an invisible hand. There is no reason to believe that the grounding for liberty in cyberspace will simply emerge. In fact, as I will argue, quite the opposite is the case. 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.³

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 what it was at cyberspace’s birth. The invisible hand, through commerce, is constructing an architecture that perfects control—an architecture that makes possible highly efficient regulation. As Vernor Vinge warned in 1996, a distributed architecture of regulatory control; as Tom Maddox added, an axis between commerce and the state.⁴

This book is about that change, and about how we might prevent it. When we see the path that cyberspace is on—an evolution I describe in part 1—we see that much of the “liberty” present at cyberspace’s founding will vanish in its future. Values that we now consider fundamental will not necessarily remain. Freedoms that were foundational will slowly disappear.

[The para above strikes me as one of the most prescient of Lessig's claims in CODE. Though the "how we might prevent it" might seem naive at present, that's only because the other forces (in my view, most especially that "axis between commerce and the state") have grown enormously powerful and have formed alliances of control. All of which applies with greater force to the paragraph below. Any history of cyberspace must include the cultural/national responses to 9/11, which, most crucially in this realm, included generally discarding the values of freedom and privacy and replacing them with security.]

If the original cyberspace is to survive, and if values that we knew in that world are to remain, we must understand how this change happens, and what we can do in response. That is the aim of part 2. Cyberspace presents something new for those who think about regulation and freedom. It demands a new understanding of how regulation works and of what regulates life there. It compels us to look beyond the traditional lawyer’s scope—beyond laws, regulations, and norms. It requires an account of a newly salient regulator.

That regulator is the obscurity in the 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 code regulates—how the software and hardware that make cyberspace what it is regulate cyberspace as it is. As William Mitchell puts it, this code is cyberspace’s “law.”⁵ Code is law.

[Carrying foward the comments above: alas, code is not law -- not exactly. Law is law, and code ultimately can only exert forces that act in the context of law (or, more properly, in the entire context of the other forces shown in the 4-fold diagram of CODE).

So, looking at the next paragraph, it is not code that is the threat to any kind of ideals; it's code-in-service-to structures of control--DRM in service to absurd notions of fair use, &c. Lessig is again prescient, in a way that I think can only be understood in the context of the giddy sense of freedom characteristic of the early Internet.

This code presents the greatest threat to liberal or libertarian ideals, as well as their greatest promise. We can build, or architect, or code cyberspace to protect values that we believe are fundamental, or we can build, or architect, or code cyberspace to allow those values to disappear. There is no middle ground. There is no choice that does not include some kind of building. Code is never found; it is only ever made, and only ever made by us. As Mark Stefik puts it, “Different versions of [cyberspace] support different kinds of dreams. We choose, wisely or not.”⁶

[And the preceding paragraph is right on the money. We choose -- however, the "we" turned out to be the courts, Congress, law enforcement agencies, and so on. Their choices dominate.]

My argument is not for some top-down form of control; my claim is not that regulators must occupy Microsoft. A constitution envisions an environment; as Justice Holmes said, it “call[s] into life a being the development of which [can not be] foreseen.”⁷ Thus, to speak of a constitution is not to describe a one-hundred-day plan. It is instead to identify the values that a space should guarantee. It is not to describe a “government”; it is not even to select (as if a single choice must be made) between bottom-up or top-down control. In speaking of a constitution in cyberspace we are simply asking: What values are protected there? What values will we build into the space to encourage certain forms of life?

The “values” here are of two sorts—substantive and structural. In the American tradition, we worried about the second first. The framers of the Constitution of 1787 (enacted without a Bill of Rights) were focused on structures of government. Their aim was to ensure that a particular government (the federal government) did not become too powerful. And so they built into its design checks on the power of the federal government and limits on its reach over the states.

Footnotes

¹ See Kevin Kelley, Out of Control: The New Biology of Machines, Social Systems, and the Economic World (Reading, Mass.: Addison-Wesley, 1994), 119. Edit Delete

² As Stephen Holmes has put it, “Rights depend upon the competent exercise of . . . legitimate public power. . . . The largest and most reliable human rights organization is the liberal state. . . . Unless society is politically well organized, there will be no individual liberties and no civil society”; “What Russia Teaches Us Now: How Weak States Threaten Freedom,” American Prospect 33 (1997): 30, 33. Edit Delete

³ This is a dark picture, I confess, and it contrasts with the picture of control drawn by Andrew Shapiro in The Control Revolution (New York: Public Affairs, 1999). As I discuss later, however, the difference between Shapiro’s view and my own turns on the extent to which architectures enable top-down regulation. In my view, one highly probable architecture would enable greater regulation than Shapiro believes is likely. Edit Delete

⁴ See “We Know Where You Will Live,” Computers, Freedom, and Privacy Conference, March 30, 1996, audio link available at http://www.swiss.ai.mit.edu/projects/mac/cfp96/plenary-sf.html. Edit Delete

⁵ See William J. Mitchell, City of Bits: Space, Place, and the Infobahn (Cambridge, Mass.: MIT Press, 1995), 111. In much of this book, I work out Mitchell’s idea, though I drew the metaphor from others as well. Ethan Katsh discusses this notion of software worlds in “Software Worlds and the First Amendment: Virtual Doorkeepers in Cyberspace,” University of Chicago Legal Forum (1996): 335, 338. Joel Reidenberg discusses the related notion of “lex informatica” in “Lex Informatica: The Formulation of Information Policy Rules Through Technology,” Texas Law Review 76 (1998): 553. I have been especially influenced by James Boyle’s work in the area. I discuss his book in chapter 9, but see also “Foucault in Cyberspace: Surveillance, Sovereignty, and Hardwired Censors,” University of Cincinnati Law Review 66 (1997): 177. For a recent and powerful use of the idea, see Shapiro, The Control Revolution. Mitch Kapor is the father of the meme “architecture is politics” within cyberspace talk. I am indebted to him for this. Edit Delete

⁶ Mark Stefik, “Epilogue: Choices and Dreams,” in Internet Dreams: Archetypes, Myths, and Metaphors, edited by Mark Stefik (Cambridge, Mass.: MIT Press, 1996), 390. Edit Delete

⁷ Missouri v Holland, 252 US 416, 433 (1920). Edit Delete