And so too with Jake. While sitting in a dorm at the University of Michigan, he was able to teleport himself—in the only normatively significant sense—to a different world where the norms of civility and decency that governed outside his dorm room did not obtain. Cyberspace gave Jake the chance to escape Ann Arbor norms and to live according to the norms of another place. It created a competing authority for Jake and gave him the chance to select between these competing authorities merely by switching his computer on or off.

Again, my point is not that no similar possibility exists in real space—it plainly does. There is no doubt a Jake living in Hackensack, New Jersey (a suburban town with suburban values), who drives every night into lower Manhattan and lives for a few hours according to the “rules” of lower Manhattan. Those rules are not the rules of Hackensack; that life is different. Like Ann Arbor Jake, the Hackensack Jake lives under competing authorities. But between the lives of these two Jakes, there is a difference in degree that ripens into a difference in kind. The Ann Arbor Jake raises a more significant problem for Ann Arbor than the Hackensack Jake raises for Hackensack. The differences are greater, and the effect more pervasive.

Nor should we think too narrowly about the competing normative communities into which a Jake might move. The valences here are both positive and negative. It is escape when a gay teen in Iowa can leave the norms of Iowa through a gay chat room on America Online;¹ it is escape when a child predator escapes the norms of ordinary society and engages a child in online sex.² Both escapes are enabled by the architecture of cyberspace as we now know it.

The difference between these two escapes is our view about the underlying norm. I call the first escape liberating, and the second criminal. There are some who would call both escapes criminal, and some who would call both liberating. The question isn’t about name-calling, but about the consequences of living in a world where we can occupy both sorts of space at the same time. Which sovereign should govern?

Latent Ambiguity

A fair view of the Constitution’s protections could go in either of two ways. It may be that we see the worm’s invasion as inconsistent with the dignity that the amendment was written to protect,⁴ or it may be that we see the invasion of the worm as so unobtrusive as to be reasonable. The answer could be either, which means that the change reveals a latent ambiguity in the original constitutional value. Either answer is possible, so now we must choose one or the other.

You may not buy my story of the worm. You may think it is pure science fiction. By the end of the book, however, I will convince you that there are any number of cases in which a similar ambiguity troubles our constitutional past. In many of them our Constitution yields no answer to the question of how it should be applied, because at least two answers are possible—that is, in light of the choices that the framers actually made.

For Americans, this ambiguity creates a problem. If we lived in an era when courts felt entitled to select the answer that in the context made the most sense, there would be no problem. Latent ambiguities would be answered by choices made by judges—the framers could have gone either way, but we choose to go this way.

But we don’t live in such an era, and so we don’t have a way for courts to resolve these ambiguities. As a result, we must rely on other institutions. My claim, a dark one, is that we have no such institutions. If our ways don’t change, our constitution in cyberspace will be a thinner and thinner regime.

Cyberspace will present us with ambiguities over and over again. It will press this question of how best to go on. We have tools from real space that will help resolve the interpretive questions by pointing us in one direction or another, at least some of the time. But in the end the tools will guide us even less than they do in real space and time. When the gap between their guidance and what we do becomes obvious, we will be forced to do something we’re not very good at doing—deciding what we want, and what is right.

My aim is not to lament choice. It is to highlight its nature and effect, as well as an aspect of the transformation that we can expect this transformation in technology to create—one with which we, uniquely, are unable to reckon.

My aim is to use these four themes to understand cyberspace as it is, and cyberspace as I believe it is becoming as it moves from a world of relative freedom to a world of relatively perfect control. These themes will help us to see why and to understand how we might respond to this transformation—how we might reclaim the values that are important in this space, and how we might insist on bringing to it values that are now absent.

Footnotes

¹ See Steve Silberman, “We’re Teen, We’re Queer, and We’ve Got E-Mail,” Wired (November 1994): 76, 78, 80, reprinted in Composing Cyberspace: Identity, Community, and Knowledge in the Electronic Age, edited by Richard Holeton (Boston: McGraw-Hill, 1998), 116. Edit Delete

² Cf. United States v Lamb, 945 FSupp 441 (NDNY 1996). Edit Delete

³ Jed Rubenfeld has developed most extensively an interpretive theory that grounds meaning in a practice of reading across time, founded on paradigm cases; see “Reading the Constitution as Spoken,” Yale Law Journal 104 (1995): 1119, 1122; and “On Fidelity in Constitutional Law,” Fordham Law Review 65 (1997): 1469. Edit Delete

⁴ See Minnesota v Dickerson, 508 US 366, 380 (1993) (Justice Antonin Scalia concurring: “I frankly doubt . . . whether the fiercely proud men who adopted our Fourth Amendment would have allowed themselves to be subjected, on mere suspicion of being armed and dangerous, to such indignity. . . . ”). Edit Delete