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Artificial Medium Laws Theory (AML)
The Law's1. The truth in artificial medium (AM) is context dependent.2. The highest perceived psychological dimensions (PPD) is the dominent one.3. AM with time PPD influence ...

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Book
Table of Contents To discuss a chapter or contact its captain, click the chapter title. ${chapter/chapter/sequence}. ${chapter/chapter/title} Parts: [ ${part/part/sequence} ]

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abartow bgjohnson bhonermann erigsby harter jflynn jkesan jlogie jon mgarlick mgoodell pgowder rbelew seth tmaddox

Ch0Part1
In the spring of 1996, at an annual conference organized under the name “Computers, Freedom, and Privacy” (CFP), two science-fiction writers were invited to tell stories about cyberspace’s ...

Ch0Part1Discussion
Here is a discussion about the old audio files of the Vinge and Maddox speeches at CFP '96. Because of Hal Abelson's kind cooperation, I obtained MP3 files of ...

Ch0Part1Footnote0
another footnote

Ch0Part1Footnote1
ORIGINAL FOOTNOTE: See http://mit.edu/cfp96/www. I've attached to this page the MP3 files of the Maddox and Vinge talks cited by Lessig -- scroll to the bottom ...

Ch0Part1Footnote2
another one

Ch0Part2
The future is Vinge’s and Maddox’s accounts together, not either alone. If we were only in for the dystopia described by Vinge, we would have an obvious and ...

Ch0Part2Discussion
Discuss Ch0Part2 here

Ch0Part3
I have learned an extraordinary amount from the teachers and critics who have helped me write this book. Hal Abelson, Bruce Ackerman, James Boyle, Jack Goldsmith, and Richard Posner gave ...

Ch0Part3Discussion
Discuss Ch0Part3 heretest edit

Ch10Part1
[Please discussion page for more background on updating this part.  Essentially, there is not much updating necessary for this part other than if we want to add footnotes or brief ...

Ch10Part10
[Please see the Discussion Page for suggestions/thoughts on how to update this Part.  Please feel free to contribute edits directly to the text or to suggest & discuss ideas on ...

Ch10Part10Discussion
Chapter Captain MKG: So I think this segment needs to be reconceptualized. Under the law that protects 'trusted systems', fair use has effectively been lost. Various business models that implement ...

Ch10Part10Footnote1
See Bell, “Fair Use vs. Fared Use,” 582–84; U.S. Department of Commerce, Task Force—Working Group on Intellectual Property Rights, “Intellectual Property and the National Information Infrastructure,” 66 ...

Ch10Part10Footnote10
See Mark Gimbel (“Some Thoughts on the Implications of Trusted Systems for Intellectual Property Law,” Stanford Law Review 50 [1998]: 1671, 1686), who notes that fair use can be “explained ...

Ch10Part10Footnote11
Stefik, “Letting Loose the Light,” 244.

Ch10Part10Footnote2
For a foundational modern work on the nature of fair use, see Wendy J. Gordon, “Fair Use as Market Failure: A Structural and Economic Analysis of the Betamax Case and ...

Ch10Part10Footnote3
See Gibbons v Ogden, 22 US 1 (1824) (striking down New York’s grant of a monopoly of steamboat navigation on the Hudson River as inconsistent with the federal Coasting ...

Ch10Part10Footnote4
See Bernard C. Gavit, The Commerce Clause of the United States Constitution (Bloomington, Ind.: Principia Press, 1932), 84.

Ch10Part10Footnote5
See Pensacola Telegraph Company v Western Union Telegraph Company, 96 US 1, 9 (1877).

Ch10Part10Footnote6
As one commentator put it near the turn of the century: “If the power of Congress has a wider incidence in 1918 than it could have had in 1789, this ...

Ch10Part10Footnote7
See Alexis de Tocqueville, Democracy in America, vol. 1 (New York: Vintage, 1990), 158–70, on the idea that the framers’ design pushed states to legislate in a broad domain ...

Ch10Part10Footnote8
See Maryland v Wirtz, 392 US 183, 201 (1968) (Justice William O. Douglas dissenting: the majority’s bringing of employees of state-owned enterprises within the reach of the commerce ...

Ch10Part10Footnote9
See Michael G. Frey, “Unfairly Applying the Fair Use Doctrine: Princeton University Press v Michigan Document Services, 99 F3d 1381 (6th Cir 1996),” University of Cincinnati Law Review 66 (1998 ...

Ch10Part11
The Anonymity That Imperfection Allows [Please see the Discussion Page for suggestions/thoughts on how to update this Part.  Please feel free to contribute edits directly to the text or ...

Ch10Part11Discussion
Chapter Captain MKG: So this is the section that I think can benefit from the most updating. There have been numerous reports in recent weeks of Amazon and Google knowing ...

Ch10Part11Footnote1
Efficient here both in the sense of cheap to track and in the sense of cheap to then discriminate in pricing; William W. Fisher III, “Property and Contract on the ...

Ch10Part11Footnote2
Julie E. Cohen, “A Right to Read Anonymously: A Closer Look at ‘Copyright Management’ in Cyberspace,” Connecticut Law Review 28 (1996): Reading anonymously is “so intimately connected with speech and ...

Ch10Part11Footnote3
“The freedom to read anonymously is just as much a part of our tradition, and the choice of reading materials just as expressive of identity, as the decision to use ...

Ch10Part11Footnote4
See Lessig, “Translating Federalism,” 125.

Ch10Part11Footnote5
See Olmstead v United States 277 US 438, 474 (1928) (Justice Louis Brandeis dissenting: “Can it be that the Constitution affords no protection against such invasions of individual security?”).

Ch10Part12
The Problems That Perfection Makes [I do not think there needs to be any updating for this section but I'm happy to debate this. Feel free to edit directly ...

Ch10Part12Discussion
Chapter Captain MKG: I do not think there needs to be any updating for this section but I'm happy to debate this.  Let me know if you think updates ...

Ch10Part12Footnote1
Peter Huber relies explicitly on the high costs of control in his rebuttal to Orwell’s 1984; see Orwell’s Revenge: The 1984 Palimpset (New York: Maxwell Macmillan International, 1994 ...

Ch10Part13
Choices[Please see the Discussion Page for suggestions/thoughts on how to update this Part.  Please feel free to contribute edits directly to the text or to suggest & discuss ideas ...

Ch10Part13Discussion
Chapter Captain MKG: So, whatever updates we generate in segment 11 of this Chapter about the loss of anonymity in exchange for viewing & using digitized material, can be briefly referenced ...

Ch10Part13Footnote1
Washington, Writings of Thomas Jefferson, 6:180–81.

Ch10Part13Footnote2
A founding work is David Lange, “Recognizing the Public Domain,” Law and Contemporary Problems 44 (1981): 147. There are many important foundations, however, to this argument. See, for example, Benjamin ...

Ch10Part13Footnote3
In addition to Boyle, I have learned most from Keith Aoki, Yochai Benkler, Julie Cohen, Niva Elkin-Koren, Peter Jaszi, Mark Lemley, Jessica Litman, Neil Netanel, Margaret Radin, and Pam ...

Ch10Part13Footnote4
For a recent and compelling account of the general movement to propertize information, see Debora J. Halbert, Intellectual Property in the Information Age: The Politics of Expanding Ownership Rights (Westport ...

Ch10Part13Footnote5
“We favor a move away from the author vision in two directions; first towards recognition of a limited number of new protections for cultural heritage, folkloric productions, and biological ‘know ...

Ch10Part13Footnote6
James Boyle, “A Politics of Intellectual Property: Environmentalism for the Net?,” Duke Law Journal 47 (1997): 87.

Ch10Part1Discussion
Chapter Captain MKG: Thanks Paul - I think the discussion of the broadcast flag debate may be better suited to segment 4 of this Chapter where it discusses the Audio Home ...

Ch10Part1Footnote1
Harold Smith Reeves, “Property in Cyberspace,” University of Chicago Law Review 63 (1996): 761.

Ch10Part1Footnote2
This in the end was not his conclusion. He concluded instead, not that boundaries should not be protected in cyberspace, but rather that the unconventional nature of cyberspace requires that ...

Ch10Part1Footnote3
Cf. Yochai Benkler, “Free as the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain,” New York University Law Review 74 (1999): 354.

Ch10Part1Footnote4
Maureen O’Rourke has extended the idea of the technological fences that cyberspace might provide, describing techniques that web sites, for example, might use to control, or block, links from ...

Ch10Part1Footnote5
See, for example, Stephen Breyer, “The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs,” Harvard Law Review 84 (1970): 281.

Ch10Part2
On the Reports of Copyright’s Demise [Please see the discussion page for more comments on possible amendments to this book.] Roughly put, copyright gives a copyright holder the right ...

Ch10Part2Discussion
Chapter Captain MKG: Overall, I do not think that this segment needs much updating. I wonder whether we can update the fifth paragraph to make the argument that not only ...

Ch10Part2Footnote1
Copyright gives other rights as well—such as the right to reclaim an assigned copyright or the right of first sale. For a lucid introduction, see William F. Patry, Latman ...

Ch10Part2Footnote10
As Nicholas Negroponte puts it, “Most people worry about copyright in terms of the ease of making copies. In the digital world, not only the ease is at issue, but ...

Ch10Part2Footnote2
See Richard A. Posner, Law and Literature, 2d ed. (Cambridge, Mass.: Harvard University Press, 1998), 389–92 (discussing incentives to write even without copyright).

Ch10Part2Footnote3
For the real constraint on publication initially was paper, not presses. Before the invention of wood-based paper, paper was produced from cloth. Cloth, however, was extremely expensive. While a ...

Ch10Part2Footnote4
For a complete and readable account of the transformation in technology, and law’s response, see Paul Goldstein, Copyright’s Highway: The Law and Lore of Copyright from Gutenberg to ...

Ch10Part2Footnote5
See Sony Corporation of America v Universal City Studios, Inc., 464 US 417, 421 (1984), which, in defining “time-shifting” as using a VTR principally to record a program one ...

Ch10Part2Footnote6
See Jonathan Evan Goldberg, “Now That the Future Has Arrived, Maybe the Law Should Take a Look: Multimedia Technology and Its Interaction with the Fair Use Doctrine,” American University Law ...

Ch10Part2Footnote7
Judge Posner usefully distinguishes between changes that might help an individual author and changes that help authors as a class. Some decreased copyright protection for authors as a whole would ...

Ch10Part2Footnote8
See Michelle Skatoff-Gee, “Changing Technologies and the Expectation of Privacy: A Modern Dilemma,” Loyola University of Chicago Law Journal 28 (1996): 189, 201–4, who discusses Congress’s enactment ...

Ch10Part2Footnote9
See Esther Dyson, “Intellectual Value,” Wired (July 1995): 137, who discusses the effect of the new economic environment of the Net on intellectual property. John Perry Barlow (“The Economy of ...

Ch10Part3
Law to the Rescue[Please see discussion page for more comments about updating this part. Obviously, this part needs considerable updating to talk about what the White Paper became ...

Ch10Part3Discussion
Chapter Captain MKG: so this is the segment that I think needs the most updating.  As I understand it, the White Paper became the DMCA and, more particularly, s1201.  We ...

Ch10Part3Footnote1
U.S. Department of Commerce, Task Force—Working Group on Intellectual Property Rights, “Intellectual Property and the National Information Infrastructure: The Report of the Working Group on Intellectual Property Rights ...

Ch10Part3Footnote2
George Smirnoff III (“Copyright on the Internet: A Critique of the White Paper’s Recommendation for Updating the Copyright Act and How the Courts Are Already Filling in Its Most ...

Ch10Part3Footnote3
For a summary of the changes called for by the White Paper, see Bruce Lehman, address before the Inaugural Engelberg Conference on Culture and Economics of Participation in an International ...

Ch10Part3Footnote4
The latest such threat is the anticircumvention provision of the Digital Millennium Copyright Act, which makes it a crime (subject to complex exceptions) to manufacture code to circumvent a copyright ...

Ch10Part3Footnote5
See Barlow, “The Economy of Ideas,” 129; see also John Perry Barlow, “Papers and Comments of a Symposium on Fundamental Rights on the Information Superhighway,” Annual Survey of American Law ...

Ch10Part3Footnote6
See Mark Stefik, “Shifting the Possible: How Trusted Systems and Digital Property Rights Challenge Us to Rethink Digital Publishing,” Berkeley Technology Law Journal 12 (1997): 137; Mark Stefik, “Trusted Systems ...

Ch10Part4
The Promise for Intellectual Property in Cyberspace [Please see discussion page for some thoughts on how this part could be updated.]It all depends on whether you really understand the ...

Ch10Part4Discussion
Chapter Captain MKG: In this segment, I wonder whether we should replace or embelish the AHRA/DAT example with the FCC broadcasting flag debate.  On the one hand, the FCC ...

Ch10Part4Footnote1
See Joel R. Reidenberg, “Governing Networks and Rule-Making in Cyberspace,” Emory Law Journal 45 (1996): 911.

Ch10Part4Footnote2
In Shifting the Possible (142–44), Stefik discusses how trusted printers combine four elements—print rights, encrypted online distribution, automatic billing for copies, and digital watermarks—in order to monitor ...

Ch10Part5
[Please see discussion  page for some comments & suggestions on how this part could be updated.] The details of the system are not important here¹ (it builds on the encryption ...

Ch10Part5Discussion
Chapter Captain MKG: In this segment, I think the main target for updating is the third paragraph that discusses how things could be in a future world with DRM applied ...

Ch10Part5Footnote1
Ibid.

Ch10Part5Footnote2
David Hackett Fischer, Albion’s Seed: Four British Folkways in America (New York: Oxford University Press, 1989), 765.

Ch10Part6
The Limits on the Protection of Property[I don't think this segment needs updating although I am happy to be persuaded otherwise. Please feel free to contribute ideas for ...

Ch10Part6Discussion
Chapter Captain MKG: I don't think this segment needs updating although I am happy to be persuaded otherwise.

Ch10Part6Footnote1
See American Legal Realism, edited by William W. Fisher III et al. (New York: Oxford University Press, 1993), 98–129; John Henry Schlegel, American Legal Realism and Empirical Social Science ...

Ch10Part6Footnote2
See Fried, The Progressive Assault on Laissez-Faire, 1–28; see also Joel P. Trachtman (“The International Economic Law Revolution,” University of Pennsylvania Journal of International Economic Law 17 [1996 ...

Ch10Part6Footnote3
Judges have also made this argument; see Lochner v New York, 198 US 45, 74 (1905) (Justice Oliver Wendell Holmes Jr. dissenting).

Ch10Part6Footnote4
This is the epistemological limitation discussed in much of Friedrich A. von Hayek’s work; see, for example, Law, Legislation, and Liberty, vol. 2 (Chicago: University of Chicago Press, 1978

Ch10Part6Footnote5
Boyle, Shamans, Software, and Spleens, 174.

Ch10Part7
[I don't think this segment needs updating although I am happy to be persuaded otherwise. Please feel free to contribute ideas for updating either in the body of the ...

Ch10Part7Discussion
Chapter Captain MKG: I also don't think this segment needs updating.  Let me know if you disagree.

Ch10Part7Footnote1
I am hiding a great deal of philosophy in this simplified utilitarian account, but for a powerful economic grounding of the point, see Harold Demsetz, “Toward a Theory of Property ...

Ch10Part7Footnote2
For a wonderfully clear introduction to this point, as well as a complete analysis of the law, see Robert P. Merges et al., Intellectual Property in the New Technological Age ...

Ch10Part7Footnote3
Thomas Jefferson, letter to Isaac Mcpherson, August 13, 1813, reprinted in Writings of Thomas Jefferson, 1790–1826, vol. 6, edited by H. A. Washington (1854), 180–81, quoted in Graham ...

Ch10Part7Footnote4
For the classic discussion, see Kenneth J. Arrow, “Economic Welfare and the Allocation of Resources for Invention,” in The Rate and Direction of Inventive Activity: Economic and Social Factors (Princeton ...

Ch10Part7Footnote5
For a powerfully compelling problematization of the economic perspective in this context, see Boyle, “Intellectual Property Policy Online,” 35–46. Boyle’s work evinces the indeterminacy that economics ought to ...

Ch10Part7Footnote6
Some will insist on calling this “property”; see Frank H. Easterbrook, “Intellectual Property Is Still Property,” Harvard Journal of Law and Public Policy 13 (1990): 108.

Ch10Part7Footnote7
This is the message of Justice Stephen Breyer’s work on copyright, for example, “The Uneasy Case for Copyright.”

Ch10Part8
[Please see the discussion page for some suggestions on how to update this part.]This is the difference between these two very different kinds of property, and this difference affects ...

Ch10Part8Discussion
Chapter Captain MKG: In part 8, the main area for updating, I think, is to include a brief acknowledgement of what happened in the Eldred case. The initial filing in ...

Ch10Part8Footnote1
For an extensive and balanced analysis, see William M. Landes and Richard A. Posner, “An Economic Analysis of Copyright Law,” Journal of Legal Studies 18 (1989): 325, 325–27, 344 ...

Ch10Part8Footnote2
These limits come from both the limits in the copyright clause, which sets its purposes out quite clearly, and the First Amendment; see, for example, Feist Publications, Inc. v Rural ...

Ch10Part8Footnote3
The “first sale” doctrine was developed under 27 of the former Copyright Act (17 USC [1970]) and has since been adopted under 109(a) of the present Copyright Act; see ...

Ch10Part8Footnote4
Europeans like to say that “moral rights” have been part of their system since the beginning of time, but as Professor Jane C. Ginsburg has shown with respect to France ...

Ch10Part8Footnote5
Or so it is argued in Eldred v Reno (DDC filed January 4, 1999).

Ch10Part9
Private Substitutes for Public Law [Please see the discussion page for more details comments on how this part could be updated.]  But what happens when code protects the interests now ...

Ch10Part9Discussion
Chapter Captain MKG: In this segment, I wonder whether the second paragraph can be bolstered by reference to the decisions of Corely and its ilk that expressly found no fair ...

Ch10Part9Footnote1
It is useful to compare the protection that copyright gives to the protection of trade secret law. All of the protection of trade secret law comes, in a sense, from ...

Ch10Part9Footnote2
86 F3d 1447 (7th Cir 1996); see also Easterbrook, “Intellectual Property Is Still Property,” 113–14. For an excellent account of the debate, see Charles R. McManis, “The Privatization (or ...

Ch10Part9Footnote3
This is a reference to the recent battle to draft what was originally called the Uniform Commercial Code 2B, and more recently the Uniform Computer Information Transactions Act (UCITA). By ...

Ch10Part9Footnote4
See William W. Fisher III, “Compulsory Terms in Internet-Related Contracts,” Chicago-Kent Law Review 73 (1998). Fisher catalogs public policy restrictions on freedom of contract, which he characterizes as ...

Ch10Part9Footnote5
An argument is raging about whether, even through law, this modification of the default copyright law should be permitted. Mark A. Lemley has catalogued the provisions of the Copyright Act ...

Ch10Part9Footnote6
See Tom W. Bell, “Fair Use vs. Fared Use: The Impact of Automated Rights Management on Copyright’s Fair Use Doctrine,” North Carolina Law Review 76 (1998): 557, 581–84 ...

Ch11Part1
The conclusion of part ¹ was that code could enable a more regulable cyberspace and that this is cause for concern. The conclusion of the last chapter was that code ...

Ch11Part10
There was a time when we would have defined our country as a place that aimed to erase these distinctions. The historian Gordon Wood describes this goal as an important ...

Ch11Part10Discussion
Discuss Ch11Part10 here

Ch11Part10Footnote1
See Gordon S. Wood, The Radicalism of the American Revolution (New York: Alfred A. Knopf, 1992), 5–8, 271–86.

Ch11Part10Footnote2
See Lynne G. Zucker, “Production of Trust: Institutional Sources of Economic Structure, 1840–1920,” Research in Organizational Behavior 8 (1986): 53.

Ch11Part10Footnote3
Price discrimination is the ability to charge different prices for the same good. Airplane tickets are the best example—the same seat can cost hundreds of dollars more for a ...

Ch11Part10Footnote4
Viviana A. Zelizer, The Social Meaning of Money, 2d ed. (Princeton, N.J.: Princeton University Press, 1994), 94–95 (footnote omitted).

Ch11Part11
Solutions I’ve identified two distinct threats to the values of privacy that we might imagine cyberspace presenting. No doubt there are others. And no doubt it is an open ...

Ch11Part11Discussion
Discuss Ch11Part11 here

Ch11Part12
Searchable: The Power of Code and the Promise of Procedure Remember the problem: systems that can invade, or search, without anyone knowing or being disturbed. To this (and any) problem ...

Ch11Part12Discussion
Discuss Ch11Part12 here

Ch11Part12Footnote1
It is quite clear that the government’s data encryption standard (DES) is unreliable. The Electronic Frontier Foundation (EFF), to its great credit, has made it that way. In Cracking ...

Ch11Part12Footnote2
For a discussion of the law governing compelled disclosure of keys and plaintext, see Phillip R. Reitinger, “Compelled Production of Plaintext and Keys,” University of Chicago Legal Forum 1996 (1996 ...

Ch11Part12Footnote3
See Michael Adler, “Cyberspace, General Searches, and Digital Contraband: The Fourth Amendment and the Net-Wide Search,” Yale Law Journal 105 (1996): 1093, 1109–10, 1113.

Ch11Part12Footnote4
Cf. ibid., 1100; see also Brin, The Transparent Society, 158–61 (discussing mutual monitoring).

Ch11Part12Footnote5
Cf. Froomkin, “The Metaphor Is the Key.”

Ch11Part13
Monitoring: The Re-Solution Through Property Control over the results of monitoring is a more ambitious project. The traditional solution is to enact laws to deal with the problem. That ...

Ch11Part13Discussion
Discuss Ch11Part13 here

Ch11Part13Footnote1
See Joel R. Reidenberg, “Privacy in the Information Economy: A Fortress or Frontier for Individual Rights?,” Federal Communications Law Journal 44 (1992): 195, 237–38. The principles account for concern ...

Ch11Part13Footnote2
For example, the Video Privacy Protection Act (18 USC, 2701 [1988]) was adopted in response to outrage over the media’s acquisition of a list of films rented by Judge ...

Ch11Part13Footnote3
One highly touted system has been TRUSTe. When a web site becomes licensed by TRUSTe, it has agreed to disclose its information-gathering and dissemination practices (which can be brought ...

Ch11Part13Footnote4
See Joseph M. Reagle and Lorrie Faith Cranor, “The Platform for Privacy Preferences,” Communications of the ACM (February 1999): 48.

Ch11Part13Footnote5
See ibid.

Ch11Part13Footnote6
Joseph M. Reagle Jr., “P3P and Privacy on the Web FAQ, Version 2.0.1,” available at http: //www.w3.org/P3P/P3FAQ.html (visited May 30, 1999).

Ch11Part13Footnote7
In its current design, the protocol is fairly unwieldy. It also lacks encryption, leaving user data open to interception; see Kenneth Lee and Gabriel Speyer, “Platform for Privacy Preferences Project ...

Ch11Part14
The law would be a kind of property right in privacy. Individuals must have both the ability to negotiate easily over privacy rights and the entitlement to privacy as a ...

Ch11Part14Discussion
Discuss Ch11Part14 here

Ch11Part14Footnote1
See Guido Calabresi and A. Douglas Melamed, “Property Rules, Liability Rules, and Inalienability: One View of the Cathedral,” Harvard Law Review 85 (1972): 1089, 1105–6. “Property rules involve a ...

Ch11Part14Footnote2
Cf. Margaret Jane Radin, Contested Commodities (Cambridge, Mass.: Harvard University Press, 1996); Martha Nussbaum, “Aristotelian Social Democracy,” in Liberalism and the Good, edited by R. Bruce Douglass et al. (New ...

Ch11Part14Footnote3
Cf. Margaret Jane Radin, “Property Evolving in Cyberspace,” Journal of Law and Communications 15 (1996): 509, 524–26.

Ch11Part14Footnote4
See “Privacy Now Campaign,” available at http://www.simson.net/pn.html.

Ch11Part14Footnote5
See Marc Rotenberg, “Data Protection in the United States: A Rising Tide?,” speech given at the Nineteenth International Conference of Privacy Data Protection Commissioners, Brussels, September 17–19, 1997, available ...

Ch11Part14Footnote6
Cf. Breyer, “The Uneasy Case for Copyright.”

Ch11Part15
Privacy Compared The reader who was dissatisfied with my argument in the last chapter is likely to begin asking pointed questions. “Didn’t you reject in the last chapter the ...

Ch11Part15Discussion
Discuss Ch11Part15 here

Ch11Part15Footnote1
John Perry Barlow, “The Economy of Ideas,” Wired (March 1994), available online at http: //www.wired.com/wired/archive/2.03/economy.ideas.html.

Ch11Part1Discussion
Discuss Ch11Part1 here

Ch11Part1Footnote1
For a comprehensive account of the American protections for privacy, as well as a comparison with European protections, see Peter P. Swire and Robert E. Litan, None of Your Business ...

Ch11Part1Footnote2
MIT Professor Hal Abelson, interview with the author, Newton, Mass., May 29, 1999.

Ch11Part1Footnote3
Swisher cites an estimate that AOL earned $7 million per month in the spring of 1996 from sex chat; Aol.com, 226.

Ch11Part1Footnote4
See M. Ethan Katsh, Law in a Digital World (New York: Oxford University Press, 1995), 228.

Ch11Part1Footnote5
Obviously, this concern is not new. Alan Westin’s work in the early 1970s was foundational in raising awareness about the relationship between computers and privacy; see Alan F. Westin ...

Ch11Part2
Spaces Protected by Law Recall the worm from the start of this book: a bit of code works itself onto your machine, scans your disk, and reports back to some ...

Ch11Part2Discussion
Discuss Ch11Part2 here

Ch11Part2Footnote1
See Olmstead v United States, 277 US 438 (1928).

Ch11Part2Footnote2
For a comprehensive treatment of the legal issues raised by cases of surveillance, see Christopher Slobogin, “Technologically Assisted Physical Surveillance: The American Bar Association’s Tentative Draft Standards,” Harvard Journal ...

Ch11Part3
Can, and do. The single greatest invasion of any sensible space of privacy that cyberspace has produced is the extraordinary monitoring of employees in which corporations now engage. On the ...

Ch11Part3Discussion
Discuss Ch11Part3 herei think we should include a discussion on the ECPA, the expectation of privacy and the regulations on databases (ex; e-mail archived in Gmail can be ...

Ch11Part3Footnote1
Communication attributes can be defined as “encompass[ing] all of the other information that can be learned about a communication, such as when and where it occurred, to whom and ...

Ch11Part3Footnote2
For instance, USA Today reported in “The Hunt for bin Laden” (August 21, 1998, A1) that “the supersecret National Agency in Fort Meade, Md., uses computers to scan tapped international ...

Ch11Part3Footnote3
Lew Platt, keynote address at Spring Internet World ’98, March 11, 1998, available at http: //www.hp.com/financials/textonly/personnel/ceo/keynote98.html (visited May 30, 1999). David Brin ...

Ch11Part3Footnote4
Michael Kemp, “Centurion to Fight Crooks; ‘Thinking’ Spy Camera Could Put an End to Car Crimes,” Daily Mail (London), May 20, 1995, 49; “Centurion” is a “real-time recognition and ...

Ch11Part3Footnote5
See, for example, the reports in George Cole, “Smart Building Looks Sharp” (Financial Times [London], November 2, 1995, 14), on a Japanese company that uses a video camera license plate ...

Ch11Part4
Cell phones need to locate themselves so that transmitters can follow the caller as she moves from one zone to another. These data about location are collected by systems that ...

Ch11Part4Discussion
Discuss Ch11Part4 here

Ch11Part4Footnote1
See Center for Democracy and Technology, “Filing Before the FCC in the Matter of the Communications Assistance for Law Enforcement Act, CC docket no. 97–213,” December 14, 1998, http ...

Ch11Part5
These three were “suspects”—they were near a car alarm when it went off—and yet, from the looks of things, you would have thought they had been caught holding ...

Ch11Part5Discussion
Discuss Ch11Part5 here

Ch11Part5Footnote1
See Minnesota v Dickerson, 508 US 366, 381 (1993) (Justice Antonin Scalia concurring).

Ch11Part5Footnote2
See, for example, William J. Stuntz, “Privacy’s Problem and the Law of Criminal Procedure,” Michigan Law Review 93 (1995): 1016, 1026; in “The Substantive Origins of Criminal Procedure,” Stuntz ...

Ch11Part6
As Stuntz argues, this is just what the Fourth and Fifth Amendments do. Combined, they make collecting the evidence for a crime like sedition impossible, thereby making a crime like ...

Ch11Part6Discussion
Discuss Ch11Part6 here

Ch11Part6Footnote1
Stuntz, “Privacy’s Problem and the Law of Criminal Procedure,” 1026.

Ch11Part6Footnote2
Alien and Sedition Acts of 1798, Act of June 18, 1798, ch. 59, 1 Stat. 566 (repealed 1802), Act of June 25, 1798, ch. 63, 1 Stat. 570 (expired); Act ...

Ch11Part6Footnote3
Stuntz, “Substantive Origins,”395.

Ch11Part6Footnote4
See Cass R. Sunstein, “Incompletely Theorized Agreements,” Harvard Law Review 108 (1995): 1733, 1735–36. “Participants in legal controversies,” Sunstein observes, “. . . need not agree on fundamental principle. . . . When they disagree ...

Ch11Part6Footnote5
There is a growing literature that is rethinking the implications of that choice. David Brin’s The Transparent Society is among the most arresting; he argues for a fundamental shift ...

Ch11Part7
Controlled UseTwo years ago I received in my mailbox a letter from AT&T. It was addressed to an old girlfriend, but the letter had not been forwarded. The ...

Ch11Part7Discussion
Discuss Ch11Part7 here

Ch11Part7Footnote1
The law thinks about it as a question of “information privacy.” The Constitution has very little time for the idea; see Albert W. Alschuler, “Interpersonal Privacy and the Fourth Amendment ...

Ch11Part7Footnote2
And they do not come from Janna Malamud Smith’s “fallacy of perspective,” discussed by David Brin (The Transparent Society, 68–70). My argument is not that privacy thrived in ...

Ch11Part7Footnote3
See Gandy, The Panoptic Sort, 66–68. In support of the theory that collectors of voluntarily given data can do whatever they like with that data, some have argued that ...

Ch11Part8
Why is that idea not troubling to these theorists? The reasons are many: • First, the harm is actually not very great. You get a discount card at your local grocery ...

Ch11Part8Discussion
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Ch11Part8Footnote1
Ibid., 87–90. For example, a targeting system that classified neighborhoods according to thirty-four different descriptors that accounted for 87 percent of the variance in socioeconomic levels across neighborhoods ...

Ch11Part8Footnote2
Peter H. Lewis, “Forget Big Brother,” New York Times, March 19, 1998, G1.

Ch11Part8Footnote3
Brin, The Transparent Society, 8–15.

Ch11Part9
There are two replies to this argument. One asks: Why do we have to choose? Why can’t we both control spying and build in checks on the distribution of ...

Ch11Part9Discussion
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Ch11Part9Footnote1
For a good story that effectively summarizes the state of Web advertising, and for a discussion of how DoubleClick operates and the case study of 3M’s sale of projectors ...

Ch11Part9Footnote10
See Joel Kosman, “Toward an Inclusionary Jurisprudence: A Reconceptualization of Zoning,” Catholic University Law Review 43 (1993): 59, 77–86, 101–3.

Ch11Part9Footnote2
See Federal Trade Commission, “Privacy Online: A Report to Congress,” June 1998, n.107, available at http: //www.ftc.gov/reports/privacy3/toc.htm (visited May 30, 1999).

Ch11Part9Footnote3
See Gandy, The Panoptic Sort, 1–3.

Ch11Part9Footnote4
Johnson, Interface Culture, 192–205. Andrew Shapiro calls this the “feedback effect” but argues that it narrows the range of choices; see The Control Revolution, 113.

Ch11Part9Footnote5
See, for example, McIntyre v Ohio Elections Commission, 514 US 334, 341–43 (1995).

Ch11Part9Footnote6
See Janai S. Nelson, “Residential Zoning Regulations and the Perpetuation of Apartheid,” UCLA Law Review 43 (1996): 1689, 1693–1704.

Ch11Part9Footnote7
Examples of laws that aim at segregation based on social or economic criteria include: regulations requiring a minimum lot size for housing; single-family ordinances prohibiting “nontraditional” families from living ...

Ch11Part9Footnote8
In 1926 the Supreme Court held zoning to be a valid exercise of local governmental power. See Village of Euclid v Ambler Realty Company, 272 US 365 (1926) (holding that ...

Ch11Part9Footnote9
In 1917 the Supreme Court outlawed racial zoning as a violation of the Fourteenth Amendment; see Buchanan v Warley, 245 US 60 (1917). However, “nonexclusionary” zoning regulation was used to ...

Ch12Part1
The right to free speech is not the right to speak for free. It is not the right to free access to television, or the right that people not hate ...

Ch12Part10
This regime requires a few assumptions. First, software manufacturers would have to write the code necessary to filter material. (This has already been done—both Netscape and Microsoft have PICS ...

Ch12Part10Discussion
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Ch12Part10Footnote1
See Diane Roberts, “On the Plurality of Ratings,” Cardozo Arts and Entertainment Law Journal 15 (1997): 105, 113–15.

Ch12Part10Footnote2
Paul Resnick, “PICS-Interest@w3.org, Moving On,” January 20 1999, available at http: //lists.w3.org/Archives/Public/pics-interest/1999Jan/0000.html (visited May 30, 1999); Paul Resnick ...

Ch12Part10Footnote3
See Jonathan Weinberg, “Rating the Net,” Hastings Communications and Entertainment Law Journal 19 (1997): 453, 478 n.108.

Ch12Part10Footnote4
See, for example, the Center for Democracy and Technology’s endorsement of parental empowerment through rating systems and blocking software rather than government regulation in “Internet Family Empowerment White Paper ...

Ch12Part11
In principle at least. We should be asking, however, what the incentives are to extend the solution beyond the problem. In addition, what resistance is this extended solution likely to ...

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Ch12Part11Footnote1
This claim, of course, is too strong. The site could block deceptively, making it seem as if the user were gaining access but actually not giving her access to what ...

Ch12Part11Footnote2
See Richard Thompson Ford (“The Boundaries of Race: Political Geography in Legal Analysis,” Harvard Law Review 107 [1994]: 1841, 1844), who asserts that jurisdictional boundaries perpetuate racial segregation and inequality ...

Ch12Part11Footnote3
See Regents of the University of California v Bakke, 438 US 265, 312 (1978) (Justice Lewis F. Powell, quoting Keyishian v Board of Regents, 385 US 589, 603 [1967]: “The ...

Ch12Part12
What happens, then, if the imperfections of filtering disappear? What happens if everyone can, in effect, have a butler? Would such a world be consistent with the values of the ...

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Ch12Part12Footnote0
Some have argued -- and some courts have accepted -- that removal of filters is a First Amendment interest not only of society at large, but also of an individual speaker, and ...

Ch12Part12Footnote1
See Fiss, The Irony of Free Speech, 3, 37–38; Sunstein, Democracy and the Problem of Free Speech, xvi–xx. Andrew Shapiro’s powerful analysis of Sunstein’s point is ...

Ch12Part12Footnote2
Ithiel de Sola Pool, Technologies Without Boundaries: On Telecommunications in a Global Age, edited by Eli M. Noam (Cambridge, Mass.: Harvard University Press, 1990), 15.

Ch12Part12Footnote3
See Geoffrey R. Stone, “Imagining a Free Press,” Michigan Law Review 90 (1992): 1246, 1264.

Ch12Part12Footnote4
But see Thomas G. Krattenmaker and L. A. Powe Jr. (“Converging First Amendment Principles for Converging Communications Media,” Yale Law Journal 104 [1995]: 1719, 1735), who argue that First Amendment ...

Ch12Part12Footnote5
For an early and extraordinary work that struggles with the complexity of the question about which information you should be able to own, see Anne Wells Branscomb, Who Owns Information ...

Ch12Part12Footnote6
There are exceptions even beyond the line of cases typified by Marsh and Pruneyard.  The Supreme Court has repeatedly refused to permit even private actors to use the courts to ...

Ch12Part13
The Regulators of Speech: Distribution So far my arguments about architectures have been about architectures in cyberspace. In this final story, I blur the borders a bit. I want to ...

Ch12Part13Discussion
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Ch12Part13Footnote1
See 47 CFR 73.277 (1998).

Ch12Part13Footnote2
47 USCA 81–119 (1927) (repealed by the Communications Act of 1934).

Ch12Part13Footnote3
See Red Lion Broadcasting Company v Federal Communications Commission, 395 US 367, 375–77 (1969); National Broadcasting Company v United States, 319 US 190, 212–13 (1943). Thomas Hazlett makes ...

Ch12Part13Footnote4
See Turner Broadcasting System, Inc. v Federal Communications Commission, 512 US 622, 637–38 (1997); see also Huber, Law and Disorder in Cyberspace.

Ch12Part13Footnote5
See National Broadcasting Company, Inc. v Columbia Broadcasting System, 213.

Ch12Part13Footnote6
See Huber, Law and Disorder in Cyberspace, 28–34. The dominant voice in this debate is Thomas W. Hazlett, who has argued strongly against the licensing regime for spectrum and ...

Ch12Part13Footnote7
See Ronald H. Coase, “The Federal Communications Commission,” Journal of Law and Economics 2 (1959): 1.

Ch12Part13Footnote8
See Patrick M. Garry, Scrambling for Protection: The New Media and the First Amendment (Pittsburgh: University of Pittsburgh, 1994), 97–106.

Ch12Part13Footnote9
There is an important argument supporting a different treatment for the “press” under the First Amendment, though the Supreme Court has not yet developed this distinctive jurisprudence. Justice Potter Stewart ...

Ch12Part14
In chapter 4, I said that architectures could differ both in the values they embrace and in the regulability of behavior within their space. But here we see a third ...

Ch12Part14Discussion
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Ch12Part14Footnote1
See Hazlett, Physical Scarcity, 911–12; Anna Couey, “The Birth of Spread Spectrum,” available at http://people.deas.harvard.edu/~jones/cscie129/nu_lectures/lecture7/hedy/lemarr.htm; Jack Glas ...

Ch12Part14Footnote2
Yochai Benkler’s article provides (for lawyers) the most extensive discussion of the technology; see “Overcoming Agoraphobia,” 287. He describes the change in technology: “The technological shift derives from various ...

Ch12Part14Footnote3
Ethernet literally functions like this. Data on an Ethernet network are streamed into each machine on that network. Each machine sniffs the data and then pays attention to the data ...

Ch12Part14Footnote4
See Yochai Benkler and Lawrence Lessig, “Net Gains,” New Republic, December 14, 1998.

Ch12Part14Footnote5
The founder of this argument must be Eli Noam; see “Spectrum Auctions: Yesterday’s Heresy, Today’s Orthodoxy, Tomorrow’s Anachronism—Taking the Next Step to Open Spectrum Access,” Journal ...

Ch12Part15
Speech Lessons What I described at the start of the book as modalities of constraint I have redescribed in this chapter as modalities of protection. While modalities of constraint can ...

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Ch12Part1Discussion
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Ch12Part1Footnote1
Two excellent examples include Owen M. Fiss, The Irony of Free Speech (Cambridge, Mass.: Harvard University Press, 1996); and Cass R. Sunstein, Democracy and the Problem of Free Speech (New ...

Ch12Part1Footnote2
See 47 CFR 73.658(e) (1998); see also Herbert J. Rotfeld et al., “Television Station Standards for Acceptable Advertising,” Journal of Consumer Affairs 24 (1990): 392.

Ch12Part1Footnote3
See Strafgesetzbuch (penal code) (StGB) 130–31, reprinted in German Criminal Law, vol. 1, edited by Gerold Harfst, translated by Otto A. Schmidt (Wrzburg: Harfst Verlag, 1989), 75–76.

Ch12Part2
The market provides a major protection to speech—relative to real space, market constraints on speech in cyberspace are tiny. Recall how easily Jake Baker became a publisher, with a ...

Ch12Part2Discussion
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Ch12Part2Footnote1
Built by industry but also especially by Cypherpunks—coders dedicated to building the tools for privacy for the Internet. As Eric Hughes writes in “A Cypherpunk’s Manifesto” (in Applied ...

Ch12Part2Footnote2
John Perry Barlow has put into circulation the meme that, “in cyberspace, the First Amendment is a local ordinance”; “Leaving the Physical World,” available at http://www.eff.org/Misc ...

Ch12Part3
The Regulators of Speech: Publication Floyd Abrams is one of America’s leading First Amendment lawyers. In 1971 he was a young partner at the law firm of Cahill, Gordon ...

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Ch12Part3Footnote1
See David Rudenstine, The Day the Presses Stopped: A History of the Pentagon Papers Case (Berkeley: University of California Press, 1996), 101, 139.

Ch12Part3Footnote10
The standard arguments are summarized well by Kathleen M. Sullivan and Gerald Gunther: “(1) It is easier for an official to restrict speech ‘by a simple stroke of the pen ...

Ch12Part3Footnote2
Ibid., 100.

Ch12Part3Footnote3
See ibid., 2.

Ch12Part3Footnote4
See ibid., 2, 42.

Ch12Part3Footnote5
Ibid., 47–63.

Ch12Part3Footnote6
Sanford J. Ungar, The Papers and the Papers: An Account of the Legal and Political Battle over the Pentagon Papers (New York: Columbia University Press, 1989), 120; cited in Rudenstine ...

Ch12Part3Footnote7
See ibid., 105.

Ch12Part3Footnote8
Near v Minnesota, 283 US 697, 716 (1931); cf. United States v Noriega, 917 F2d 1543 (11th Cir 1990) (affirming the prior restraint of audiotapes of the defendant’s conversations ...

Ch12Part3Footnote9
See, for example, Organization for a Better Austin v Keefe, 402 US 415, 418–19 (1971); Bantam Books, Inc., v Sullivan, 372 US 58, 70 (1963); Near v Minnesota, 283 ...

Ch12Part4
The Court struggled with the question, but resolved it quickly. It struggled because the costs seemed so high,¹ but when it resolved the question, it did so quite squarely ...

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Ch12Part4Footnote1
In a particularly telling exchange, Justice Stewart asked Professor Bickel about a case in which disclosure “would result in the sentencing to death of a hundred young men whose only ...

Ch12Part4Footnote2
In a concurring opinion, Justice Potter Stewart wrote that the prior restraint at issue was invalid since he could not “say that disclosure of [the Pentagon Papers] will surely result ...

Ch12Part4Footnote3
See United States v Progressive, Inc., 467 FSupp 990 (WDWis 1979); see also L. A. Powe Jr., “The H-Bomb Injunction,” University of Colorado Law Review 61 (1990): 55, 56

Ch12Part4Footnote4
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