The Laws of Cyberspace

Larry Lessig

Introductory Story

• Before Russian Revolution Tsar had system of internal passports which marked estate you came from and determined places you could go– Also who you could associate with and what

you could be

• They were like badges that granted or barred access

Story 2

• Bolsheviks promised to change this• Abolition of internal passport symbolized freedom

for Russian people• Democratization of citizenship in Russia• Not to last though, ~15 years later, starving

peasants flooded cities looking for food• Stalin brought back system of internal passports• Peasants again tied to rural land – lasted

throughout 70’s

Four Constraints on Behavior• Law – a prominent regulator of behavior because if you

fail to follow the law their can be consequences• Social Norms are a second constraint on behavior –

understandings or expectations of how I ought to behave– These can regulate behavior in a far wider array of

contexts than any law• The third is Market – it regulates by price, by pricing

goods, the market sets my opportunities, and through this range of opportunities it regulates

• The fourth is nature or what he calls architecture– The constraint of the world as it is– I can’t see through walls, a constraint on my ability to know what

is happening on the other side– No wheel chair ramp can constrain access to a library for a wheel

chair bound individual

Regulation through the Four Constraints

• To understand a regulation we must understand the sum of the four constraints operating together

• Any one cannot represent the effect of the four together

Cyberspace Hype

• Cyberspace is unavoidable

• Cyberspace is unregulable

• No nation can live without it

• No nation will be able to control behavior in it

• A place where individuals are inherently free from the control of real space sovereigns

His attack against the Hype

• He has a different view• Now entering a world where freedom is not

assured• Cyberspace has the potential to be the

most fully and extensively regulated space that we have ever known

• Unless we understand this we are likely to miss the transition from freedom into control

Connecting Cyberspace to Bolshevik Russia

• Similar to the real world, behavior in cyberspace is regulated by four types of constraints

• Again, Law is one of those constraints– copyright law, defamation law, sexual harassment law– In spite of the hype that cyberspace is wide open,

these laws constrain behavior similarly to how behaviors are constrained in real space

• There are also Norms in cyberspace as there are in real space

• When norms are not followed, punishments are meted out

Cyberspace and Bolshevik Russia 2

• The market also constrains cyberspace as in real space– change the price of access and constraints on access

differ• Architecture, the fourth, is most significant of the four

– He calls this CODE - meaning the SW and HW which constitute cyberspace

– the set of protocols implemented or codified in the SW of cyberspace that determine how people interact, or exist in the space

– It sets the terms upon which we enter or exist in cyberspace, just like the architecture of the real space

How Architecture(CODE) constrains Behavior

• Sometimes one must enter a password, othertimes they don’t

• Some transactions produce link back to individual, othertimes they don’t

• Sometimes encryption is an option, sometimes it isn’t• These differences are created by code by programmers,

they constrain some behavior while allowing others possible

• They are like architecture of real space regulating behavior in cyberspace

Real Space and CyberSpace

• In real space architecture, market, norms, and law regulate behavior

• In cyberspace code, market, norms, and law regulate behavior

• As with real space, in cyberspace we need to look at how the four work together to constrain behavior

Example - Regulation of Indecency on the Net

• Concern sharply grew in 1995• Kids using net more frequently mixed with availability of

“porn”• Article cites controversial and flawed study in

Georgetown Law Review reported that the new was “awash with porn.”

• Time and Newsweek ran cover articles about its availability

• Senators and Congressman bombarded with demands to do something to regulate cybersmut

Why the Outcry?

• Author writes - more indecent materials exist in real space than in cyberspace

• Most kids don’t have access to cyberspace, so why the outcry?

• Look at it differently, what regulates indecent materials in real space?

Why (U.S. View)

• 1) US laws regulate distribution of indecent materials to kids– ID checks to check age of buyers– Laws requiring these businesses to be far from kids

• 2) Norms - possibly more important than laws– Norms constrain adults not to sell this to kids

• 3) Market Norms - To buy this costs money and most kids do not have money

• 4) Architecture - difficult in real space to hide the fact that you are a kid

• So, constraints on being a kid are effective in real space

Cyberspace is Different Though

• In real space hard to hide that you are a kid, in cyberspace the default is anonymity

• Easy to hide who one is• Practically impossible for the same laws and

norms to apply in cyberspace• Key difference is the regulability of cyberspace,

the ability of governments to regulate behavior there

• Currently, cyberspace is less regulable than real space, less governments can do

Why?• Key difference is the code that constitutes

cyberspace• Its current architecture is essentially unregulable

(at least in 1995)• The architecture of 1995 and 1996 essentially

allowed anyone w/ access to roam w/o identifying who they were - Net95 was Bolshevik Russia

• One’s identity was invisible to the net then• One could enter w/o credentials, w/o an internal

passport• Users were fundamentally equal, essentially free

Communications Decency Act (1996)

• With Net95 as the architecture of the network at the time-- this statute was declared unconstitutional

• Because, at the time, any regulation attempting to zone kids from indecent materials would be a regulation that was too burdensome on speakers and listeners

• As the net was then, regulation would be too burdensome• Key problem was that the court spoke as if this

architecture, net95, was the only architecture that the net could have

But...

• We know that the net has no nature, no single architecture

• Net 95 is a set of features or protocols that constituted the net at a particular period in time

• Nothing requires it to always be that way (remember malleability?)

• Court spoke as if it had discovered the nature of the net and was therefore deciding on the nature of any possible regulation of the net

Univ of Chicago - Harvard Story

• Author was professor at UoC, to gain access to net, just plug into a jack (located throughout Univ)

• Any machine could do it and you would have full, anonymous, free access to the net

• It was this way because of the administration• This policy established the architectural design

of the UoC net

@Harvard

• One cannot connect one’s machine to the net unless the machine is registered– That is, licensed, approved, verified

• Only members of the Univ community can register their machine

• Once registered all transactions over the net are potentially monitored and identified to a particular machine

• Anonymous speech on this net is not permitted• Access can be controlled based on who someone is,

interactions can be traced

Two Views

• Controlling access is the ideal at Harvard• Facilitating access is the ideal at Univ of Chicago• These two views are common today at Univ’s

across America• UoC is Net95• Harvard is not an Internet but an Intranet

architecture– within an intranet, identity is sufficiently established

such that access can be controlled and usage monitored

Philosophies

• They both are built from TCP/IP but at Harvard you have Internet Plus, the plus means the power to control

• They reflect two philosophies about access and reflect two sets of principles or values on how speech should be controlled

• they parallel difference between political regimes of freedom and political regimes of control

The Point

• Nothing against Harvard or Chicago• Wants us to see that at the level of a nation, architecture

is inherently political• In cyberspace, the selection of an architecture is as

important as the choice of a constitution• The code of cyberspace is its constitution, it sets terms

for access, sets the rules, controls their behavior, a sort of sovereignty competing with real space sovereigns in the regulation of behavior of real space citizens

Supreme Error• Author feels that Supreme Court error is made by many• The error of thinking that the architecture as we have it is

an architecture that we will always have• That the space will guarantee us freedom, liberty• He feels this is “profoundly mistaken.”• While we celebrate the “inherent” freedom of the net, its

architecture is changing

Architecture Shift

• From an architecture of freedom to an architecture of control

• As it becomes an architecture of control it becomes more regulable

• US government is moving the architecture in these directions

• How? The government can regulate the architectures in cyberspace so that behaviors in cyberspace become more regulable

Two Examples

• Encryption– Much of its history has been heavily regulated

by American government p 141– Consistently banned its export– Has proposed laws requiring manufacturers to

assure that any encryption have built within it either a key recovery ability or an equivalent back door so that gov could get access to content of such communications

2nd Example

• The first was regulation of code, our constitution offers very little control over government regulation like this

• There is little the constitution offers against the government’s regulation of business

• Second - Another use of encryption is identification - besides hiding, you can through digital certificates authenticate who sent something

What is Achieved?

• If both regulations went into effect• Since US is largest market for Internet products, and no

product can really succeed unless it is successful in U.S.• The standards imposed in U.S. become standards for the

world.• We would be exporting an architecture that facilitates

control– Not just for us but for any government

• Is this completely true?

Where will it go?

• The US then, would move itself from a symbol of freedom to a peddler of control

• But, is it all bad?

• Read bottom of p 142 and selected portions of 143

• End