In this drawing, each oval represents one kind of constraint operating on our pathetic dot in the center. Each constraint imposes a different kind of cost on the dot for engaging in the relevant behavior—in this case, smoking. The cost from norms is different from the market cost, which is different from the cost from law and the cost from the (cancerous) architecture of cigarettes.

The constraints are distinct, yet they are plainly interdependent. Each can support or oppose the others. Technologies can undermine norms and laws; they can also support them. Some constraints make others possible; others make some impossible. Constraints work together, though they function differently and the effect of each is distinct. Norms constrain through the stigma that a community imposes; markets constrain through the price that they exact; architectures constrain through the physical burdens they impose; and law constrains through the punishment it threatens.

We can call each constraint a “regulator,” and we can think of each as a distinct modality of regulation. Each modality has a complex nature, and the interaction among these four is hard to describe. I’ve worked through this complexity more completely in the appendix. But for now, it is enough to see that they are linked and that, in a sense, they combine to produce the regulation to which our pathetic dot is subject in any given area.

The same model describes the regulation of behavior in cyberspace.

Law regulates behavior in cyberspace. Copyright law, defamation law, and obscenity laws all continue to threaten ex post sanction for the violation of legal rights. How well law regulates, or how efficiently, is a different question: in some cases it does so more efficiently, in some cases less. But whether better or not, law continues to threaten a certain consequence if it is defied. Legislatures enact;¹ prosecutors threaten;² courts convict.³

Norms also regulate behavior in cyberspace. Talk about democratic politics in the alt.knitting newsgroup, and you open yourself to flaming; “spoof” someone’s identity in a MUD, and you may find yourself “toaded”;⁴ talk too much in a discussion list, and you are likely to be placed on a common bozo filter. In each case, a set of understandings constrain behavior, again through the threat of ex post sanctions imposed by a community.

Markets regulate behavior in cyberspace. Pricing structures constrain access, and if they do not, busy signals do. (AOL learned this quite dramatically when it shifted from an hourly to a flat rate pricing plan.)⁵ Areas of the Web are beginning to charge for access, as online services have for some time. Advertisers reward popular sites; online services drop low-population forums. These behaviors are all a function of market constraints and market opportunity. They are all, in this sense, regulations of the market.

And finally, an analog for architecture regulates behavior in cyberspace—code. The software and hardware that make cyberspace what it is constitute a set of constraints on how you can behave. The substance of these constraints may vary, but they are experienced as conditions on your access to cyberspace. In some places (online services such as AOL, for instance) you must enter a password before you gain access; in other places you can enter whether identified or not.⁶ In some places the transactions you engage in produce traces that link the transactions (the “mouse droppings”) back to you; in other places this link is achieved only if you want it to be.⁷ In some places you can choose to speak a language that only the recipient can hear (through encryption);⁸ in other places encryption is not an option.⁹ The code or software or architecture or protocols set these features; they are features selected by code writers; they constrain some behavior by making other behavior possible, or impossible. The code embeds certain values or makes certain values impossible. In this sense, it too is regulation, just as the architectures of real-space codes are regulations.

As in real space, then, these four modalities regulate cyberspace. The same balance exists. As William Mitchell puts it (though he omits the constraint of the market):

Architecture, laws, and customs maintain and represent whatever balance has been struck [in real space]. As we construct and inhabit cyberspace communities, we will have to make and maintain similar bargains—though they will be embodied in software structures and electronic access controls rather than in architectural arrangements.¹⁰

Laws, norms, the market, and architectures interact to build the environment that “Netizens” know. The code writer, as Ethan Katsh puts it, is the “architect.”¹¹

But how can we “make and maintain” this balance between modalities? What tools do we have to achieve a different construction? How might the mix of real-space values be carried over to the world of cyberspace? How might the mix be changed if change is desired?

Footnotes

¹ The ACLU lists twelve states that passed Internet regulations between 1995 and 1997; see http: //www.aclu.org/issues/cyber/censor/stbills.html#bills (visited May 31, 1999). Edit Delete

¹⁰ Mitchell, City of Bits, 159. Edit Delete

¹¹ See Katsh, “Software Worlds and the First Amendment,” 335, 340. “If a comparison to the physical world is necessary, one might say that the software designer is the architect, the builder, and the contractor, as well as the interior decorator.” Edit Delete

² See, for example, the policy of the Minnesota attorney general on the jurisdiction of Minnesota over people transmitting gambling information into the state; available at http://web.archive.org/web/20000816215338/http://www.ag.state.mn.us/home/consumer/consumernews/OnlineScams/memo.html Edit Delete

³ See, for example, Playboy Enterprises v Chuckleberry Publishing, Inc., 939 FSupp 1032 (SDNY 1996); United States v Thomas, 74 F3d 1153 (6th Cir 1996); United States v Miller, 166 F3d 1153 (11th Cir 1999); United States v Lorge, 166 F3d 516 (2d Cir 1999); United States v Whiting, 165 F3d 631 (8th Cir 1999); United States v Hibbler, 159 F3d 233 (6th Cir 1998); United States v Fellows, 157 F3d 1197 (9th Cir 1998); United States v Simpson, 152 F3d 1241 (10th Cir 1998); United States v Hall, 142 F3d 988 (7th Cir 1998); United States v Hockings, 129 F3d 1069 (9th Cir 1997); United States v Lacy, 119 F3d 742 (9th Cir 1997); United States v Smith, 47 MJ 588 (CrimApp 1997); United States v Ownby, 926 FSupp 558 (WDVa 1996). Edit Delete

⁴ See Julian Dibbell, “A Rape in Cyberspace,” Village Voice, December 23, 1993, 36. Edit Delete

⁵ See, for example, “AOL Still Suffering but Stock Price Rises,” Network Briefing, January 31, 1997; David S. Hilzenrath, “‘Free’ Enterprise, Online Style; AOL, CompuServe, and Prodigy Settle FTC Complaints,” Washington Post, May 2, 1997, G1; “America Online Plans Better Information About Price Changes,” Wall Street Journal, May 29, 1998, B2; see also Swisher, Aol.com, 206–8. Edit Delete

⁶ USENET postings can be anonymous; see Henry Spencer and David Lawrence, Managing USENET (Sebastopol, Calif.: O’Reilly & Associates, 1998), 366–67. Edit Delete

⁷ Web browsers make this information available, both in real time and archived in a cookie file; see http: //www.cookiecentral.com/faq.htm (visited May 31, 1999). They also permit users to turn this tracking feature off. Edit Delete

⁸ PGP is a program to encrypt messages that is offered both commercially and free. Edit Delete

⁹ Encryption, for example, is illegal in some international contexts; see Baker and Hurst, The Limits of Trust, 130–36. Edit Delete