How the code regulates, who the code writers are, and who controls the code writers—these are questions that any practice of justice must focus in the age of cyberspace. The answers reveal how cyberspace is regulated. My claim in this part of the book is that cyberspace is regulated, and that the regulation is changing. Its regulation is its code, and its code is changing.

We are entering an age when the power of regulation will be relocated to a structure whose properties and possibilities are fundamentally different. As I said about Russia at the start of this book, one form of power may be destroyed, but another is taking its place.

Our aim must be to understand this power and to ask whether it is properly exercised. As David Brin asks, “If we admire the Net, should not a burden of proof fall on those who would change the basic assumptions that brought it about in the first place?”¹

These “basic assumptions” were grounded in liberty and openness. An invisible hand now threatens both. We need to understand how.

code and other regulators

Part 1 set up the problem: cyberspace will not take care of itself. Its nature is not given. Its nature is its code, and its code is changing from a place that disabled control to a place that will enable an extraordinary kind of control. Commerce is making that happen; government will help. Before this happens, we should decide whether this is the way we want things to be.

In part 2 we will prepare for that choice. I begin by describing a more complex sense of the life that code makes possible. That’s chapter 6. What makes these places feel as they do? What architectures make possible the life within each? And how might that life change as the structures that constitute them—their architectures—change?

Chapter 7 is about the techniques for that change. Building on the pattern I described in chapter 5, I offer a general model of regulation that is applicable to cyberspace as well as real space. My aim is to convey a sense of the power that government has here, and a stronger sense of why that power will increase—not decrease—over time.

I then describe an important limitation to this power—in terms from the introduction, a structural constraint on government’s power. This is the limit implicit in the open code movement. As I argue in chapter 8, the power that government obtains through the techniques I sketched in chapter 5, open code takes away. There is thus a competition about regulability, mediated by the ownership of the code.

The aim in the end is to see what is at stake, what is possible, and what limits there are on what is possible. The argument is not against regulation; the argument is against a particularly narrow, and useless, conception of regulation. Once we have a better view of how regulation works, we will see more clearly how we might choose the space cyberspace should be.

Footnotes

¹ Brin, The Transparent Society, 324. Edit Delete