One can hardly blame judges for this. Indeed, in some cases their deference should be encouraged.¹ But we should not underestimate its consequences. In the future legislatures will act relatively unconstrained by courts; the values that we might call constitutional—whether enacted into our Constitution or not—will constrain these legislatures only if they choose to take them into account.

Before we turn to what we might expect from legislatures, consider one other problem with courts—specifically, the problem confronting our constitutional tradition as the Constitution moves into the context of cyberspace. This is the problem of “state action.”

Architectures constitute cyberspace; these architectures are varied; they variously embed political values; some of these values have constitutional import. Yet for the most part—and fortunately—[???????]  these architectures are private. They are constructed by universities or corporations and implemented on wires no longer funded by the Defense Department. They are private and therefore traditionally outside the scope of constitutional review. The constitutional values of privacy, access, rights of anonymity, and equality need not trouble this new world, since this world is “private” and the Constitution is concerned only with “state action.”

Why this should be is not clear to me. If code functions as law, then we are creating the most significant new jurisdiction since the Louisiana Purchase, yet we are building it just outside the Constitution’s review. Indeed, we are building it just so that the Constitution will not govern—as if we want to be free of the constraints of value embedded by that tradition.

So far in this book, I have not relied very much on this private/public distinction. You might say I have ignored it. But I have ignored it not because it makes no sense, but because I don’t know how it could be carried over to the regulation of cyberspace. The concept of state action itself presents a latent ambiguity, and I don’t think we have a clear idea of how to resolve it.

The ambiguity is this: the Constitution was drawn at a time when basic architectures were set. The framers found the laws of nature, the laws of economics, the “natural law” of man; they were not made by government or man.

These architectures constrained, of course, and their constraint was a “regulation.” But the degree to which they could be used as tools of self-conscious control was limited. Town planning was not limited,² but beyond laying out a space, there was little these founders could do about the rules that would govern the built environment of this space.

Cyberspace, however, has different architectures, whose regulatory power is not so limited. An extraordinary amount of control can be built into the environment that people know there. What data can be collected, what anonymity is possible, what access is granted, what speech will be heard—all these are choices, not “facts.” All these are designed, not found.

Our context, therefore, is very different. That the scope of constitutional review was limited in the first context does not compel it to be similarly limited in the second. It could be, but we cannot know that merely from its being so limited in a very different context.

We have no answer from the framers, then, about the scope of state action. We must decide on our own what makes better sense of our constitutional tradition. Is it more faithful to our tradition to allow these structures of control, the functional equivalent of law, to develop outside the scope of constitutional review? Or to extend constitutional review to the structures of private regulation, to preserve those fundamental values within our tradition?

These are hard questions, though it is useful to note that they are not as hard to ask in other constitutional regimes. The German tradition, for example, would have less trouble with the idea that private structures of power must ultimately be checked against fundamental constitutional values.³ The German tradition, of course, is not our own. But the fact that they have sustained this view suggests that we may make space for the constraint of the Constitution without turning everything into a constitutional dispute. Nevertheless, it will take a revolution in American constitutional law for the Court, self-consciously at least, to move beyond the limits of state action.

It is in these two ways then that courts are stuck. They cannot be seen to be creative, and the scope of their constitutional review has been narrowed (artificially, I believe) to exclude the most important aspect of cyberspace’s law—code. [MORE EXPLANATION WOULD BE HELPFUL, MAYBE SOME RECENT EXAMPLES OF THIS WOULD ALSO BE HELPFUL] If there are decisions about where we should go, and choices about the values this space will include, then these are choices we can’t expect our courts to make.

Footnotes

¹ One could well argue that during the crisis of the Depression deference by the Court to the Congress would have been well advised; see, for example, Sunstein, Democracy and the Problem of Free Speech, 39. Edit Delete

² Fischer (Albion’s Seed) shows how town planning in the United States followed habits in Europe. Edit Delete

³ David P. Currie, The Constitution of the Federal Republic of Germany (Chicago: University of Chicago Press, 1994), 182–87. Edit Delete