Previous chapter: Privacy / Next chapter: Interlude

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 will not hate you for what you have to say. Strictly speaking—legally speaking—the right to free speech in the United States means the right to be free from punishment by the government in retaliation for at least some (probably most) speech. You cannot be jailed for criticizing the President, though you can be jailed for threatening him; you cannot be fined for promoting segregation, though you will be shunned if you do. You cannot be stopped from speaking in a public place, though you can be stopped from speaking with an FM transmitter. Speech in the United States is protected —in a complex, and at times convoluted, way—but its constitutional protection is a protection against the government.

Nevertheless, a constitutional account of free speech that thought only of government would be radically incomplete. Two societies could have the same “First Amendment”—the same protections against government’s wrath—but if within one dissenters are tolerated while in the other they are shunned, the two societies would be very different free-speech societies. More than government constrains speech, and more than government protects it. A complete account of this —and any—right must consider the full range of burdens and protections.

Consider, for example, the “rights” of the disabled to protection against discrimination as each of the four modalities of Chapter 7 construct them. The law protects the disabled. Social norms don ’t. The market provides goods to help the disabled, but they bear the full cost of that help. And until the law intervened, architecture did little to help the disabled integrate into society (think about stairs). The net of these four modalities describes the protection, or “rights,” that in any particular context the disabled have. Law might intervene to strengthen that protection —for example, by regulating architectures so they better integrate the disabled. But for any given “right,” we can use this mix of modalities to describe how well (or not) that “right” is protected.

In the terms of Chapter 7, then, these are modalities of both regulation and protection. That is, they can function both as constraints on behavior and as protections against other constraints. The following figure captures the point.

In the center is the object regulated—the pathetic dot from Chapter 7. Surrounding the individual now is a shield of protection, the net of law/norms/market/architecture that limits the constraints these modalities would otherwise place on the individual. I have not separated the four in the sphere of the shield because obviously there is no direct match between the modality of constraint and the modality of protection. When law as protector conflicts with law as constraint, constitutional law overrides ordinary law.

These modalities function together. Some might undercut others, meaning that the sum of protections might seem to be less significant than the parts. The “right” to promote the decriminalization of drugs in the present context of the war on drugs is an example. The law protects your right to advocate the decriminalization of drugs. The state cannot lock you up if, like George Soros, you start a campaign for the decriminalization of marijuana or if, like the Nobel Prize –winning economist Milton Friedman or the federal judge Richard Posner, you write articles suggesting it. If the First Amendment means anything, it means that the state cannot criminalize speech about law reform.

But that legal protection does not mean that I would suffer no consequences for promoting legalization of drugs. My hometown neighbors would be appalled at the idea, and some no doubt would shun me. Nor would the market necessarily support me. It is essentially impossible to buy time on television for a speech advocating such a reform. Television stations have the right to select their ads (within some limits); mine would most likely be deemed too controversial. 1 Stations also have the FCC—an active combatant in the war on drugs—looking over their shoulders. And even if I were permitted to advertise, I am not George Soros. I do not have millions to spend on such a campaign. I might manage a few off-hour spots on a local station, but I could not afford, for instance, a campaign on the networks during prime time.

Finally, architecture wouldn’t protect my speech very well either. In the United States at least, there are few places where you can stand before the public and address them about some matter of public import without most people thinking you a nut or a nuisance. There is no speakers ’ corner in every city; most towns have no town meeting. “America offline,” in this sense, is very much like America Online—not designed to give individuals access to a wide audience to address public matters. Only professionals get to address Americans on public issues —politicians, scholars, celebrities, journalists, and activists, most of whom are confined to single issues. The rest of us have a choice —listen, or be dispatched to the gulag of social lunacy.

Thus, the effective protection for controversial speech is more conditional than a view of the law alone would suggest. Put differently, when more than law is reckoned, the right to be a dissenter is less protected than it could be.

Let’s take this example now to cyberspace. How is the “right” to promote the legalization of drugs in cyberspace protected? Here too, of course, the law protects my right of advocacy —at least in the United States. But it is quite possible that my speech would be illegal elsewhere and that perhaps I could be prosecuted for uttering such speech in cyberspace “in” another country. Speech promoting the Nazi Party, for example, is legal in the United States but not in Germany. 2 Uttering such speech in cyberspace may make one liable in German space as well.

The law therefore is an imperfect protection. Do norms help to protect speech? With the relative anonymity of cyberspace and its growing size, norms do not function well there. Even in cyberspaces where people know each other well, they are likely to be more tolerant of dissident views when they know (or believe, or hope) the dissident lives thousands of miles away.

The market also provides a major protection to speech in cyberspace—relative to real space, market constraints on speech in cyberspace are tiny. Recall how easily Jake Baker became a publisher, with a potential readership greater than the readership of all law books (like this one) published in the last decade. Look at the more than 50 million blogs that now enable millions to express their view of whatever. The low cost of publishing means publishing is no longer a barrier to speaking. As Eben Moglen asks, “Will there be an unpublished poet in the 21st Century?”

But on top of this list of protectors of speech in cyberspace is (once again) architecture. Relative anonymity, decentralized distribution, multiple points of access, no necessary tie to geography, no simple system to identify content, tools of encryption 3—all these features and consequences of the Internet protocol make it difficult to control speech in cyberspace. The architecture of cyberspace is the real protector of speech there; it is the real “First Amendment in cyberspace,” and this First Amendment is no local ordinance.4

Just think about what this means. For over 60 years the United States has been the exporter of a certain political ideology, at its core a conception of free speech. Many have criticized this conception: Some found it too extreme, others not extreme enough. Repressive regimes —China, North Korea—rejected it directly; tolerant regimes—France, Hungary—complained of cultural decay; egalitarian regimes—the Scandinavian countries—puzzled over how we could think of ourselves as free when only the rich can speak and pornography is repressed.

This debate has gone on at the political level for a long time. And yet, as if under cover of night, we have now wired these nations with an architecture of communication that builds within their borders a far stronger First Amendment than our ideology ever advanced. Nations wake up to find that their telephone lines are tools of free expression, that e-mail carries news of their repression far beyond their borders, that images are no longer the monopoly of state-run television stations but can be transmitted from a simple modem. We have exported to the world, through the architecture of the Internet, a First Amendment more extreme in code than our own First Amendment in law.

This chapter is about the regulation of speech and the protection of speech in cyberspace —and therefore also in real space. My aim is to obsess about the relationship between architecture and the freedom it makes possible, and about the significance of law in the construction of that architecture. It is to get you to see how this freedom is built —the constitutional politics in the architectures of cyberspace.

I say “politics” because this building is not over. As I have argued (over and over again), there is no single architecture for cyberspace; there is no given or necessary structure to its design. The first-generation Internet might well have breached walls of control. But there is no reason to believe that architects of the second generation will do so, or not to expect a second generation to rebuild control. There is no reason to think, in other words, that this initial flash of freedom will not be short-lived. And there is certainly no justification for acting as if it will not.

We can already see the beginnings of this reconstruction. The architecture is being remade to re-regulate what real-space architecture before made regulable. Already the Net is changing from free to controlled space.

Some of these steps to re-regulate are inevitable; some shift back is unavoidable. Before the change is complete, however, we must understand the freedoms the Net now provides and determine which freedoms we mean to preserve.

And not just preserve. The architecture of the Internet, as it is right now, is perhaps the most important model of free speech since the founding. This model has implications far beyond e-mail and web pages. Two hundred years after the framers ratified the Constitution, the Net has taught us what the First Amendment means. If we take this meaning seriously, then the First Amendment will require a fairly radical restructuring of the architectures of speech off the Net as well. 5

But all of that is getting ahead of the story. In the balance of this chapter, I address four distinct free speech in cyberspace questions. With each, I want to consider how “free speech” is regulated.

These stories do not all have the same constitutional significance. But they all illustrate the dynamic at the core of the argument of this book —how technology interacts with law to create policy.

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. 6 Late in the evening of Monday, June 14, he received a call from James Goodale, in-house counsel for the New York Times. Goodale asked Abrams, together with Alexander Bickel, a Yale Law School professor, to defend the New York Times in a lawsuit that was to be filed the very next day.

The New York Times had just refused the government’s request that it cease all publication of what we now know as the “Pentagon Papers” and return the source documents to the Department of Defense.7 These papers, mostly from the Pentagon’s “History of U.S. Decision Making Process on Vietnam Policy,” evaluated U.S. policy during the Vietnam War.8 Their evaluation was very negative, and their conclusions were devastating. The papers made the government look extremely bad and made the war seem unwinnable.

The papers had been given to the New York Times by someone who did think the war was unwinnable; who had worked in the Pentagon and helped write the report; someone who was not anti-war at first but, over time, had come to see the impossibility that the Vietnam War was.

This someone was Daniel Ellsberg. Ellsberg smuggled one of the 15 copies of the papers from a safe at the RAND Corporation to an offsite photocopier. There, he and a colleague, Anthony Russo, photocopied the papers over a period of several weeks. 9 Ellsberg tried without success to make the papers public by having them read into the Congressional Record. He eventually contacted the New York Times reporter Neil Sheehan in the hope that the Times would publish them. Ellsberg knew that this was a criminal act, but for him the war itself was a criminal act; his aim was to let the American people see just what kind of a crime it was.

For two and a half months the Times editors pored over the papers, working to verify their authenticity and accuracy. After an extensive review, the editors determined that they were authentic and resolved to publish the first of a ten-part series of excerpts and stories on Sunday, June 13, 1971. 10

On Monday afternoon, one day after the first installment appeared, Attorney General John Mitchell sent a telegraph to the New York Times stating:

I respectfully request that you publish no further information of this character and advise me that you have made arrangements for the return of these documents to the Department of Defense. 11

When the Times failed to comply, the government filed papers to enjoin the paper from continuing to publish stories and excerpts from the documents. 12

The government’s claims were simple: These papers contained government secrets; they were stolen from the possession of the government; to publish them would put many American soldiers at risk and embarrass the United States in the eyes of the world. This concern about embarrassment was more than mere vanity: Embarrassment, the government argued, would weaken our bargaining position in the efforts to negotiate a peace. Because of the harm that would come from further publication, the Court should step in to stop it.

The argument was not unprecedented. Past courts had stopped the publication of life-threatening texts, especially in the context of war. As the Supreme Court said in Near v. Minnesota, for example, “no one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops. ”13

Yet the question was not easily resolved. Standing against precedent was an increasingly clear command: If the First Amendment meant anything, it meant that the government generally cannot exercise the power of prior restraint. 14 “Prior restraint” is when the government gets a court to stop publication of some material, rather than punish the publisher later for what was illegally published. Such a power is thought to present much greater risks to a system of free speech. 15 Attorney General Mitchell was asking the Court to exercise this power of prior restraint.

The Court struggled with the question, but resolved it quickly. It struggled because the costs seemed so high, 16 but when it resolved the question, it did so quite squarely against the government. In the Court ’s reading, the Constitution gave the New York Times the right to publish without the threat of prior restraint.

The Pentagon Papers is a First Amendment classic—a striking reminder of how powerful a constitution can be. But even classics get old. And in a speech that Abrams gave around the time the first edition to this book was published, Abrams asked an incredible question: Is the case really important anymore? Or has technology rendered this protection of the First Amendment unnecessary?

Abrams’s question was motivated by an obvious point: For the government to succeed in a claim that a printing should be stopped, it must show “irreparable harm”—harm so significant and irreversible that the Court must intervene to prevent it. 17 But that showing depends on the publication not occurring—if the Pentagon Papers had already been published by the Chicago Tribune, the government could have claimed no compelling interest to stop its publication in the New York Times. When the cat is already out of the bag, preventing further publication does not return the cat to the bag.

This point is made clear in a case that came after New York Times—a case that could have been invented by a law professor. In the late 1970s, the Progressive commissioned an article by Howard Morland about the workings of an H-bomb. The Progressive first submitted the manuscript to the Department of Energy, and the government in turn brought an injunction to block its publication. The government ’s claim was compelling: to give to the world the secrets of how to build a bomb would make it possible for any terrorist to annihilate any city. On March 26, 1979, Judge Robert Warren of the Western District of Wisconsin agreed and issued a temporary restraining order enjoining the Progressive from publishing the article.18

Unlike the Pentagon Papers case, this case didn’t race to the Supreme Court. Instead, it stewed, no doubt in part because the district judge hearing the case understood the great risk this publication presented. The judge did stop the publication while he thought through the case. He thought for two and a half months. The publishers went to the Court of Appeals, and to the Supreme Court, asking each to hurry the thinking along. No court intervened.

Until Chuck Hansen, a computer programmer, ran a “Design Your Own H-Bomb” contest and circulated an eighteen-page letter in which he detailed his understanding of how an H-Bomb works. On September 16, 1979, the Press-Connection of Madison, Wisconsin, published the letter. The next day the government moved to withdraw its case, conceding that it was now moot. The compelling interest of the government ended once the secret was out. 19

Note what this sequence implies. There is a need for the constitutional protection that the Pentagon Papers case represents only because there is a real constraint on publishing. Publishing requires a publisher, and a publisher can be punished by the state. But if the essence or facts of the publication are published elsewhere first, then the need for constitutional protection disappears. Once the piece is published, there is no further legal justification for suppressing it.

So, Abrams asks, would the case be important today? Is the constitutional protection of the Pentagon Papers case still essential?

Surprisingly, Floyd Abrams suggests not.20 Today there’s a way to ensure that the government never has a compelling interest in asking a court to suppress publication. If the New York Times wanted to publish the Pentagon Papers today, it could ensure that the papers had been previously published simply by leaking them to a USENET newsgroup, or one of a million blogs. More quickly than its own newspaper is distributed, the papers would then be published in millions of places across the world. The need for the constitutional protection would be erased, because the architecture of the system gives anyone the power to publish quickly and anonymously.

Thus the architecture of the Net, Abrams suggested, eliminates the need for the constitutional protection. Even better, Abrams went on, the Net protects against prior restraint just as the Constitution did —by ensuring that strong controls on information can no longer be achieved. The Net does what publication of the Pentagon Papers was designed to do —ensure that the truth does not remain hidden.

But there’s a second side to this story.

On July 17, 1996, TWA Flight 800 fell from the sky ten miles off the southern coast of Center Moriches, New York. Two hundred and thirty people were killed. Immediately after the accident the United States launched the (then) largest investigation of an airplane crash in the history of the National Transportation Safety Board (NTSB), spending $27 million to discover the cause of the crash, which eventually was determined to have been a mechanical failure. 21

This was not, however, the view of the Internet. From the beginning, stories circulated about “friendly fire”—missiles that were seen to hit the airplane. Dozens of eyewitnesses reported that they saw a streaking light shoot toward the plane just before it went down. There were stories about missile tests conducted by the Navy seventy miles from the crash site. 22 The Net claimed that there was a cover-up by the U.S. government to hide its involvement in one of the worst civil air disasters in American history.

The government denied these reports. Yet the more the government denied them, the more contrary “evidence” appeared on the Net.23 And then, as a final straw in the story, there was a report, purportedly by a government insider, claiming that indeed there was a conspiracy —because evidence suggested that friendly fire had shot down TWA 800.24

The former press secretary to President John F. Kennedy believed this report. In a speech in France, Pierre Salinger announced that his government was hiding the facts of the case, and that he had the proof.

I remember this event well. I was talking to a colleague just after I heard Salinger ’s report. I recounted Salinger’s report to this colleague, a leading constitutional scholar from one of the top American law schools. We both were at a loss about what to believe. There were cross-cutting intuitions about credibility. Salinger was no nut, but the story was certainly loony.

Salinger, it turns out, had been caught by the Net. He had been tricked by the flip side of the point Floyd Abrams has made. In a world where everyone can publish, it is very hard to know what to believe. Publishers are also editors, and editors make decisions about what to publish —decisions that ordinarily are driven at least in part by the question, is it true? Statements cannot verify themselves. We cannot always tell, from a sentence reporting a fact about the world, whether that sentence is true. 25 So in addition to our own experience and knowledge of the world, we must rely on structures of reputation that build credibility. When something is published, we associate the claim with the publisher. If the New York Times says that aliens have kidnapped the President, it is viewed differently from a story with the identical words published in the National Enquirer.

When a new technology comes along, however, we are likely to lose our bearings. This is nothing new. It is said that the word phony comes from the birth of the telephone —the phony was the con artist who used the phone to trick people who were familiar with face-to-face communication only. We should expect the same uncertainty in cyberspace, and expect that it too, at first, will shake expectations of credibility.

Abrams’s argument then depends on a feature of the Net that we cannot take for granted. If there were credibility on the Net, the importance of the Pentagon Papers case would indeed be diminished. But if speech on the Net lacks credibility, the protections of the Constitution again become important.

“Credibility,” however, is not a quality that is legislated or coded. It comes from institutions of trust that help the reader separate reliable from unreliable sources. Flight 800 thus raises an important question: How can we reestablish credibility in this space so that it is not lost to the loons? 26

In the first edition of this book, that question could only be answered hypothetically. But in the time since, we ’ve begun to see an answer to this question emerge. And the word at the center of that answer is: Blog.

At this writing, there are more than 50 million weblogs on the Internet. There’s no single way to describe what these blogs are. They differ dramatically, and probably most of what gets written there is just crap. But it is wrong to judge a dynamic by a snapshot. And the structure of authority that this dynamic is building is something very new.

At their best, blogs are instances of amateur journalism—where “amateur,” again, means not second rate or inferior, but one who does what he does for the love of the work and not the money. These journalists write about the world —some from a political perspective, some from the point of view of a particular interest. But they all triangulate across a range of other writers to produce an argument, or a report, that adds something new. The ethic of this space is linking —of pointing, and commenting. And while this linking is not “fair and balanced,” it does produce a vigorous exchange of ideas.

These blogs are ranked. Services such as Technorati constantly count the blog space, watching who links to whom, and which blogs produce the greatest credibility. And these rankings contribute to an economy of ideas that builds a discipline around them. Bloggers get authority from the citation others give them; that authority attracts attention. It is a new reputation system, established not by editors or CEOs of media companies, but by an extraordinarily diverse range of contributors.

And in the end, these amateur journalists have an effect. When TWA flight 800 fell from the sky, there were theories about conspiracies that were filtered through no structure of credibility. Today, there are more structure s of credibility. So when Dan Rather produced a letter on CBS’s 60 Minutes purporting to establish a certain fraud by the President, it took the blogosphere 24 hours to establish this media company’s evidence was faked. More incredibly, it took CBS almost two weeks to acknowledge what blogs had established. 27 The collaborative work of the blogs uncovered the truth, and in the process embarrassed a very powerful media company. But by contrast to the behavior of that media company, they demonstrated something important about how the Net had matured.

This collaboration comes with no guarantees, except the guarantee of a process. The most extraordinary collaborative process in the context of content is Wikipedia. Wikipedia is a free online encyclopedia, created solely by volunteers. Launched at the beginning of 2001, these (literally thousands of) volunteers have now created over 2 million articles. There are nine major language versions (not including the Klingon version), with about half of the total articles in English.

The aim of the Wikipedia is neutrality. The contributors edit, and reedit, to frame a piece neutrally. Sometimes that effort fails —particularly controversial topics can’t help but attract fierce conflict. But in the main, the work is an unbelievable success. With nothing more than the effort of volunteers, the most used, and perhaps the most useful encyclopedia ever written has been created through millions of uncoordinated instances of collaboration.

Wikipedia, however, can’t guarantee its results. It can’t guarantee that, at any particular moment, there won’t be errors in its entries. But of course, no one can make that guarantee. Indeed, in one study that randomly collected entries from Wikipedia and from Encyclopedia Britannica, there were just as many errors in Britannica as in Wikipedia.28

But Wikipedia is open to a certain kind of risk that Britannica is not—maliciousness. In May 2005, the entry to an article about John Seigenthaler Sr. was defaced by a prankster. Because not many people were monitoring the entry, it took four months before the error was noticed and corrected. Seigenthaler wasn ’t happy about this. He, understandably, complained that it was the architecture of Wikipedia that was to blame.

Wikipedia’s architecture could be different. But the lesson here is not its failures. It is instead the extraordinary surprise of Wikipedia’s success. There is an unprecedented collaboration of people from around the world working to converge upon truth across a wide range of topics. That, in a sense, is what science does as well. It uses a different kind of “peer review” to police its results. That “peer review” is no guarantee either—South Koreans, for example, were quite convinced that one of their leading scientists, Hwang Woo-Suk, had discovered a technique to clone human stem cells. They believed it because peer-reviewed journals had reported it. But whether right to believe it or not, the journals were wrong. Woo-Suk was a fraud, and he hadn ’t cloned stem cells, or anything else worth the attention of the world.

Blogs don’t coordinate any collaborative process to truth in the way Wikipedia does. In a sense, the votes for any particular position at any particular moment are always uncounted, while at every moment they are always tallied on Wikipedia. But even if they ’re untallied, readers of blogs learn to triangulate on the truth. Just as with witnesses at an accident (though better, since these witnesses have reputations), the reader constructs what must be true from a range of views. Cass Sunstein rightly worries that the norms among bloggers have not evolved enough to include internal diversity of citation. 29 That may well be true. But whatever the normal reading practice is for ordinary issues, the diversity of the blogosphere gives readers an extremely wide range of views to consider when any major issue —such as that which stung Salinger—emerges. When tied to the maturing reputation system that constantly tempers influence, this means that it is easier to balance extreme views with the correction that many voices can build.

A credibility can thus emerge, that, while not perfect, is at least differently encumbered. NBC News must worry about its bottom line, because its reporting increasingly responds to it. Blogs don ’t have a bottom line. They are—in the main—amateurs. Reputation constrains both, and the competition between the two forms of journalism has increasingly improved each. We have a richer environment for free speech today than five years ago —a commercial press tempered by blogs regulated by a technology of reputation that guides the reader as much as the writer.

Errors will remain. Everyone has a favorite example—mine is the ridiculous story about Al Gore claiming to have “invented the Internet.” The story originated with a CNN interview on March 9, 1999. In that interview, in response to a question about what was different about Gore over Bradley, Gore said the following:

During my service in the United States Congress, I took the initiative in creating the Internet. I took the initiative in moving forward a whole range of initiatives that have proven to be important to our country ’s economic growth and environmental protection, improvements in our educational system. 30

As is clear from the context, Gore is stating not that he invented the technology of the Internet, but that he “took the initiative in moving forward a whole range of initiatives” that have been important to the country. But the story was retold as the claim that Gore “invented the Internet.” That’s how the Internet journalist Declan McCullagh repeated it two weeks later: “[T]he vice president offered up a whopper of a tall tale in which he claimed to have invented the Internet. ” That characterization—plainly false—stuck. In a 2003 study of the media’s handling of the story, Chip Health and Jonathan Bendor conclude, “We show that the false version of Gore’s statement dominated the true one in mainstream political discourse by a wide margin. This is a clear failure in the marketplace of ideas, which we document in detail. ”31

The only redeeming part of this story is that it’s simple to document the falsity—because of the Internet. Seth Finkelstein, a programmer and anti-censorware activist, has created a page on the Internet collecting the original interview and the subsequent reports about it. 32 His is the model of the very best the Internet could be. That virtue, however, didn ’t carry too far beyond the Internet.

Regulations of Speech: Spam and Porn

For all our talk about loving free speech, most of us, deep down, wouldn’t mind a bit of healthy speech regulation, at least in some contexts. Or at least, more of us would be eager for speech regulation today than would have been in 1996. This change is because of two categories of speech that have become the bane of existence to many on the Net: spam and porn.

By “spam” I mean unsolicited commercial e-mail sent in bulk. “Unsolicited,” in the sense that there’s no relationship between the sender and recipient; “commercial” in a sense that excludes political e-mail; “e-mail” in the sense not restricted to e-mail, but that includes every medium of interaction in cyberspace (including blogs); and “bulk” meaning many (you pick the number) missives sent at once.

By “porn,” I mean not obscenity and not child porn, but what the United States Supreme Court calls sexually explicit speech that is “harmful to minors.”33 This is the category of legally permitted erotic speech—for adults, at least, not for kids. Obscenity and child porn are permitted to no one.

These two types of speech—porn and spam—are very different, but they are similar in the structure of regulation that each demands. Neither kind of speech should be banned by regulation: There are some who are happy to receive spam; there are some who are constitutionally entitled to access porn. But for both kinds of speech, there is a class of individuals who would like the power to block access to each: most of us with respect to spam; parents with respect to porn. This is a desire for a kind of “speech regulation.” The question is how, or whether, the law can support it.

I’m all for this form of speech regulation, properly architected. “But how,” anti-regulation sorts might ask, “can you so easily embrace the idea of regulation? Have you forgotten the important values of free speech? ”

But if the lovers of this form of speech regulation have been reading carefully, they have a quick answer to this charge of censorship. It is clear, upon reflection, that in the sense of Chapter 7, spam and porn have always been regulated in real space. The only question for cyberspace is whether the same effect of those real space regulations can be achieved in cyberspace.

Real-Space Regulations: Spam and Porn

Think first about spam in real space. In the sense of Chapter 7, spam, in real space, is regulated extensively. We can understand that regulation through the four modalities.

First law: Regulations against fraud and misrepresentation constrain the games bulk mailers can play in real space. Contests are heavily regulated (just read the disclaimers on the Publishers ’ Clearing House Sweepstakes).

Second, norms regulate bulk mail in real space. There’s a sense of what is appropriate to advertise for; advertisement outside that range is almost self-defeating.

Third, markets regulate bulk mail in real space. The cost of real space mail is high, meaning the returns must be significant before it pays to send bulk mail. That radically reduces the range of bulk mail that gets sent in real space.

And finally, architecture regulates bulk mail in real space. We get our mail just once a day, and it ’s fairly simple to segregate bulk from real. It’s also simple to dump the bulk without ever even opening it. The burdens of real-space spam are thus not terribly great.

These factors together restrict the spread of spam in real space. There is less of it than the spammers would like, even if there is more than the rest of us like. These four constraints thus regulate what gets made.

A similar story can be told about porn.

Pornography, in real space, is regulated extensively—again not obscenity and not child porn, but what the Supreme Court calls sexually explicit speech that is “harmful to minors.” Obscenity and child porn are regulated too, but their regulation is different: Obscenity and child porn are banned for all people in real space (United States); porn is banned only for children.

We can also understand porn’s regulation by considering the four modalities of regulation. All four are directed to a common end: to keep porn away from kids while (sometimes) ensuring adults ’ access to it.

First, laws do this. Laws in many jurisdictions require that porn not be sold to kids. 34 Since at least 1968, when the Supreme Court decided Ginsberg v. New York,35 such regulation has been consistently upheld. States can require vendors of porn to sell it only to adults; they can also require vendors to check the ID of buyers.

But not only laws channel. Social norms do as well. Norms restrict the sale of porn generally —society for the most part sneers at consumers of porn, and this sneer undoubtedly inhibits its sale. Norms also support the policy of keeping porn away from kids. Porn dealers likely don’t like to think of themselves as people who corrupt. Selling porn to kids is universally seen as corrupting, and this is an important constraint on dealers, as on anyone else.

The market, too, keeps porn away from kids. Porn in real space costs money. Kids do not have much money. Because sellers discriminate on the basis of who can pay, they thus help to discourage children from buying porn.

But then regulations of law, market, and norms all presuppose another regulation that makes the first three possible: the regulation of real-space architecture. In real space it is hard to hide that you are a child. He can try, but without any likely success. Thus, because a kid cannot hide his age, and because porn is largely sold face to face, the architectures of real space make it relatively cheap for laws and norms to be effective.

This constellation of regulations in real space has the effect of controlling, to an important degree, the distribution of porn to kids. The regulation is not perfect —any child who really wants the stuff can get it—but regulation does not need to be perfect to be effective. It is enough that these regulations make porn generally unavailable.

Cyberspace Regulations: Spam and Porn

Spam and porn are regulated differently in cyberspace. That is, these same four modalities constrain or enable spam and porn differently in cyberspace.

Let’s begin with porn this time. The first difference is the market. In real space porn costs money, but in cyberspace it need not —at least not much. If you want to distribute one million pictures of “the girl next door” in real space, it is not unreasonable to say that distribution will cost close to $1 million. In cyberspace distribution is practically free. So long as you have access to cyberspace and a scanner, you can scan a picture of “the girl next door” and then distribute the digital image across USENET to many more than one million people for just the cost of an Internet connection.

With the costs of production so low, a much greater supply of porn is produced for cyberspace than for real space. And indeed, a whole category of porn exists in cyberspace that doesn ’t in real space—amateur porn, or porn produced for noncommercial purposes. That category of supply simply couldn’t survive in real space.

And then there is demand. Porn in cyberspace can be accessed—often and in many places—for free. Thousands of commercial sites make porn available for free, as a tease to draw in customers. Even more porn is distributed in noncommercial contexts, such as USENET, or free porn websites. Again, this low price translates into much greater demand.

Much of this supply and demand is for a market that, at least in the United States, is constitutionally protected. Adults have a constitutional right in the United States to access porn, in the sense that the government can do nothing that burdens (perhaps unreasonably burdens) access to porn. But there is another market for porn in the United States that is not constitutionally protected. Governments have the right in the United States to block access by kids to porn.

As we saw in the previous section, for that regulation to work, however, there needs to be a relatively simple way to know who is a kid. But as we ’ve seen throughout this book, this is an architectural feature that cyberspace doesn’t have. It’s not that kids in cyberspace can easily hide that they are kids. In cyberspace, there is no fact to disguise. You enter without an identity and you identify only what you want —and even that can’t be authenticated with any real confidence. Thus, a kid in cyberspace need not disclose that he is a kid. And therefore he need not suffer the discriminations applied to a child in real space. No one needs to know that Jon is Jonny; therefore, the architecture does not produce the minimal information necessary to make regulation work.

The consequence is that regulations that seek selectively to block access to kids in cyberspace don ’t work, and they don’t work for reasons that are very different from the reasons they might not work well in real space. In real space, no doubt, there are sellers who want to break the law or who are not typically motivated to obey it. But in cyberspace, even if the seller wants to obey the law, the law can ’t be obeyed. The architecture of cyberspace doesn’t provide the tools to enable the law to be followed.

A similar story can be told about spam: Spam is an economic activity. People send it to make money. The frictions of real space significantly throttle that desire. The costs of sending spam in real space mean that only projects expecting a significant return get sent. As I said, even then, laws and norms add another layer of restriction. But the most significant constraint is cost.

But the efficiency of communication in cyberspace means that the cost of sending spam is radically cheaper, which radically increases the quantity of spam that it is rational to send. Even if you make only a .01% profit, if the cost of sending the spam is close to zero, you still make money.

Thus, as with porn, a different architectural constraint means a radically different regulation of behavior. Both porn and spam are reasonably regulated in real space; in cyberspace, this difference in architecture means neither is effectively regulated at all.

And thus the question that began this section: Is there a way to “regulate” spam and porn to at least the same level of regulation that both face in real space?

Regulating Net-Porn

Of all the possible speech regulations on the Net (putting copyright to one side for the moment), the United States Congress has been most eager to regulate porn. That eagerness, however, has not yet translated into success. Congress has passed two pieces of major legislation. The first was struck down completely. The second continues to be battered down in its struggle through the courts.

The first statute was the product of a scare. Just about the time the Net was coming into the popular consciousness, a particularly seedy aspect of the Net came into view first. This was porn on the Net. This concern became widespread in the United States early in 1995. 36 Its source was an extraordinary rise in the number of ordinary users of the Net, and therefore a rise in use by kids and an even more extraordinary rise in the availability of what many call porn on the Net. An extremely controversial (and deeply flawed) study published in the Georgetown University Law Review reported that the Net was awash in porn.37 Time ran a cover story about its availability.38 Senators and congressmen were bombarded with demands to do something to regulate “cybersmut.”

Congress responded in 1996 with the Communications Decency Act (CDA). A law of extraordinary stupidity, the CDA practically impaled itself on the First Amendment. The law made it a felony to transmit “indecent” material on the Net to a minor or to a place where a minor could observe it. But it gave speakers on the Net a defense —if they took good-faith, “reasonable, effective” steps to screen out children, then they could speak “indecently.”39

There were at least three problems with the CDA, any one of which should have doomed it to well-deserved extinction. 40 The first was the scope of the speech it addressed: “Indecency” is not a category of speech that Congress has the power to regulate (at least not outside the context of broadcasting.) 41 As I have already described, Congress can regulate speech that is “harmful to minors,” or Ginsberg speech, but that is very different from speech called “indecent.” Thus, the first strike against the statute was that it reached too far.

Strike two was vagueness. The form of the allowable defenses was clear: So long as there was an architecture for screening out kids, the speech would be permitted. But the architectures that existed at the time for screening out children were relatively crude, and in some cases quite expensive. It was unclear whether, to satisfy the statute, they had to be extremely effective or just reasonably effective given the state of the technology. If the former, then the defenses were no defense at all, because an extremely effective block was extremely expensive; the cost of a reasonably effective block would not have been so high.

Strike three was the government’s own doing. In arguing its case before the Supreme Court in 1997, the government did little either to narrow the scope of the speech being regulated or to expand the scope of the defenses. It stuck with the hopelessly vague, overbroad definition Congress had given it, and it displayed a poor understanding of how the technology might have provided a defense. As the Court considered the case, there seemed to be no way that an identification system could satisfy the statute without creating an undue burden on Internet speakers.

Congress responded quickly by passing a second statute aimed at protecting kids from porn. This was the Child Online Protect ion Act (COPA) of 1998.42 This statute was better tailored to the constitutional requirements. It aimed at regulating speech that was harmful to minors. It allowed commercial websites to provide such speech so long as the website verified the viewer ’s age. Yet in June 2003, the Supreme Court enjoined enforcement of the statute.43

Both statutes respond to a legitimate and important concern. Parents certainly have the right to protect their kids from this form of speech, and it is perfectly understandable that Congress would want to help parents secure this protection.

But both statutes by Congress are unconstitutional—not, as some suggest, because there is no way that Congress could help parents. Instead both are unconstitutional because the particular way that Congress has tried to help parents puts more of a burden on legitimate speech (for adults that is) than is necessary.

In my view, however, there is a perfectly constitutional statute that Congress could pass that would have an important effect on protecting kids from porn.

To see what that statute looks like, we need to step back a bit from the CDA and COPA to identify what the legitimate objectives of this speech regulation would be.

Ginsberg44 established that there is a class of speech that adults have a right to but that children do not. States can regulate that class to ensure that such speech is channeled to the proper user and blocked from the improper user.

Conceptually, for such a regulation can work, two questions must be answered:

• Is the speaker uttering “regulable” speech—meaning speech “harmful to minors”?

• Is the listener entitled to consume this speech—meaning is he a minor?

And with the answers to these questions, the logic of this regulation is:

IF
(speech == regulable)
AND
(listener == minor)
THEN
block access.

Now between the listener and the speaker, clearly the speaker is in a better position to answer question #1. The listener can ’t know whether the speech is harmful to minors until the listener encounters the speech. If the listener is a minor, then it is too late. And between the listener and the speaker, clearly the listener is in a better position to answer question #2. On the Internet especially, it is extremely burdensome for the speaker to certify the age of the listener. It is the listener who knows his age most cheaply.

The CDA and COPA placed the burden of answering question #1 on the speaker, and #2 on both the speaker and the listener. A speaker had to determine whether his speech was regulable, and a speaker and a listener had to cooperate to verify the age of the listener. If the speaker didn ’t, and the listener was a minor, then the speaker was guilty of a felony.

Real-space law also assigns the burden in exactly the same way. If you want to sell porn in New York, you both need to determine whether the content you ’re selling is “harmful to minors,” and you need to determine whether the person you’re selling to is a minor. But real space is importantly different from cyberspace, at least in the high cost of answering question #2: In real space, the answer is almost automatic (again, it ’s hard for a kid to hide that he’s a kid). And where the answer is not automatic, there’s a cheap system of identification (a driver’s license, for example). But in cyberspace, any mandatory system of identification constitutes a burden both for the speaker and the listener. Even under COPA, a speaker has to bear the burden of a credit card system, and the listener has to trust a pornographer with his credit card just to get access to constitutionally protected speech.

There’s another feature of the CDA/COPA laws that seems necessary but isn’t: They both place the burden of their regulation upon everyone, including those who have a constitutional right to listen. They require, that is, everyone to show an ID when it is only kids who can constitutionally be blocked.

So compare then the burdens of the CDA/COPA to a different regulatory scheme: one that placed the burden of question #1 (whether the content is harmful to minors) on the speaker and placed the burden of question #2 (whether the listener is a minor) on the listener.

One version of this scheme is simple, obviously ineffective and unfair to the speaker: A requirement that a website blocks access with a page that says “The content on this page is harmful to minors. Click here if you are a minor.” This scheme places the burden of age identification on the kid. But obviously, it would have zero effect in actually blocking a kid. And, less obviously, this scheme would be unfair to speakers. A speaker may well have content that constitutes material “harmful to minors,” but not everyone who offers such material should be labeled a pornographer. This transparent block is stigmatizing to some, and if a less burdensome system were possible, that stigma should also render regulation supporting this unconstitutional.

So what’s an alternative for this scheme that might actually work?

I’m going to demonstrate such a system with a particular example. Once you see the example, the general point will be easier to see as well.

Everyone knows the Apple Macintosh. It, like every modern operating system, now allows users to specify “accounts” on a particular machine. I’ve set one up for my son, Willem (he’s only three, but I want to be prepared). When I set up Willem’s account, I set it up with “parental controls.” That means I get to specify precisely what programs he gets to use, and what access he has to the Internet. The “parental controls” make it (effectively) impossible to change these specifications. You need the administrator ’s password to do that, and if that’s kept secret, then the universe the kid gets to through the computer is the universe defined by the access the parent selects.

Imagine one of the programs I could select was a browser with a function we could call “kids-mode-browsing” (KMB). That browser would be programmed to watch on any web page for a particular mark. Let ’s call that mark the “harmful to minors” mark, or <H2M> for short. That mark, or in the language of the Web, tag, would bracket any content the speaker believes is harmful to minors, and the KMB browser would then not display any content bracketed with this <H2M> tag. So, for example, a web page marked up “Blah blah blah <H2M>block this</H2M> blah blah blah” would appear on a KMB screen as: “Blah blah blah blah blah blah.”

So, if the world of the World Wide Web was marked with <H2M> tags, and if browser manufacturers built this <H2M>-filtering function into their browsers, then parents would be able to configure their machines so their kids didn ’t get access to any content marked <H2M>. The policy objective of enabling parental control would be achieved with a minimal burden on constitutionally entitled speakers.

How can we get (much of the) world of the Web to mark its harmful to minors content with <H2M> tags?

This is the role for government. Unlike the CDA or COPA, the regulation required to make this system work —to the extent it works, and more on that below—is simply that speakers mark their content. Speakers would not be required to block access; speakers would not be required to verify age. All the speaker would be required to do is to tag content deemed harmful to minors with the proper tag.

This tag, moreover, would not be a public marking that a website was a porn site. This proposal is not like the (idiotic, imho) proposals that we create a .sex or .xxx domain for the Internet. People shouldn ’t have to locate to a red-light district just to have adult material on their site. The <H2M> tag instead would be hidden from the ordinary user—unless that user looks for it, or wants to block that content him or herself.

Once the government enacts this law, then browser manufacturers would have an incentive to build this (very simple) filtering technology into their browsers. Indeed, given the open-source Mozilla browser technology —to which anyone could add anything they wanted—the costs of building this modified browser are extremely low. And once the government enacts this law, and browser manufacturers build a browser that recognizes this tag, then parents have would have as strong a reason to adopt platforms that enable them to control where their kids go on the Internet.

Thus, in this solution, the LAW creates an incentive (through penalties for noncompliance) for sites with “harmful to minors” material to change their ARCHITECTURE (by adding <H2M> tags) which creates a MARKET for browser manufacturers (new markets) to add filtering to their code, so that parents can protect their kids. The only burden created by this solution is on the speaker; this solution does not burden the rightful consumer of porn at all. To that consumer, there is no change in the way the Web is experienced, because without a browser that looks for the <H2M> tag, the tag is invisible to the consumer.

But isn’t that burden on the speaker unconstitutional? It’s hard to see why it would be, if it is constitutional in real space to tell a speaker he must filter kids from his content “harmful to minors.” No doubt there’s a burden. But the question isn’t whether there’s a burden. The constitutional question is whether there is a less burdensome way to achieve this important state interest.

But what about foreign sites? Americans can’t regulate what happens in Russia. Actually, that’s less true than you think. As we’ll see in the next chapter, there’s much that the U.S. government can do and does to effectively control what other countries do.

Still, you might worry that sites in other countries won’t obey American law because it’s not likely we’ll send in the Marines to take out a noncomplying website. That’s certainly true. But to the extent that a parent is concerned about this, as I already described, there is a market already to enable geographic filtering of content. The same browser that filters on <H2M> could in principle subscribe to an IP mapping service to enable access to American sites only.

But won’t kids get around this restriction? Sure, of course some will. But the measure of success for legislation (as opposed to missile tracking software) is not 100 percent. The question the legislature asks is whether the law will make things better off. 45 To substantially block access to <H2M> content would be a significant improvement, and that would be enough to make the law make sense.

But why not simply rely upon filters that parents and libraries install on their computers? Voluntary filters don ’t require any new laws, and they therefore don’t require any state-sponsored censorship to achieve their ends.

It is this view that I want to work hardest to dislodge, because built within it are all the mistakes that a pre-cyberlaw understanding brings to the question of regulation in cyberspace.

First, consider the word “censorship.” What this regulation would do is give parents the opportunity to exercise an important choice. Enabling parents to do this has been deemed a compelling state interest. The kids who can ’t get access to this content because their parents exercised this choice might call it “censorship,” but that isn’t a very useful application of the term. If there is a legitimate reason to block this form of access, that ’s speech regulation. There’s no reason to call it names.

Second, consider the preference for “voluntary filters.” If voluntary filters were to achieve the very same end (blocking H2M speech and only H2M speech), I ’d be all for them. But they don’t. As the ACLU quite powerfully described (shortly after winning the case that struck down the CDA partly on the grounds that private filters were a less restrictive means than government regulation):

The ashes of the CDA were barely smoldering when the White House called a summit meeting to encourage Internet users to self-rate their speech and to urge industry leaders to develop and deploy the tools for blocking “inappropriate speech.” The meeting was “voluntary,” of course: the White House claimed it wasn’t holding anyone’s feet to the fire. [But] the ACLU and others . . . were genuinely alarmed by the tenor of the White House summit and the unabashed enthusiasm for technological fixes that will make it easier to block or render invisible controversial speech. . . . [I]t was not any one proposal or announcement that caused our alarm; rather, it was the failure to examine the longer-term implications for the Internet of rating and blocking schemes. 46

The ACLU’s concern is the obvious one: The filters that the market has created not only filter much more broadly than the legitimate interest the state has here —blocking <H2M> speech—they also do so in a totally nontransparent way. There have been many horror stories of sites being included in filters for all the wrong reasons (including for simply criticizing the filter). 47 And when you are wrongfully blocked by a filter, there’s not much you can do. The filter is just a particularly effective recommendation list. You can ’t sue Zagat’s just because they steer customers to your competitors.

My point is not that we should ban filters, or that parents shouldn’t be allowed to block more than H2M speech. My point is that if we rely upon private action alone, more speech will be blocked than if the government acted wisely and efficiently.

And that frames my final criticism: As I’ve argued from the start, our focus should be on the liberty to speak, not just on the government ’s role in restricting speech. Thus, between two “solutions” to a particular speech problem, one that involves the government and suppresses speech narrowly, and one that doesn ’t involve the government but suppresses speech broadly, constitutional values should tilt us to favor the former. First Amendment values (even if not the First Amendment directly) should lead to favoring a speech regulation system that is thin and accountable, and in which the government ’s action or inaction leads only to the suppression of speech the government has a legitimate interest in suppressing. Or, put differently, the fact that the government is involved should not necessarily disqualify a solution as a proper, rights-protective solution.

The private filters the market has produced so far are both expensive and over-inclusive. They block content that is beyond the state ’s interest in regulating speech. They are effectively subsidized because there is no less restrictive alternative.

Publicly required filters (which are what the <H2M> tag effectively enables) are narrowly targeted on the legitimate state interest. And if there is a dispute about that tag —if for example, a prosecutor says a website with information about breast cancer must tag the information with an <H2M> tag—then the website at least has the opportunity to fight that. If that filtering were in private software, there would be no opportunity to fight it through legal means. All that free speech activists could then do is write powerful, but largely invisible, articles like the ACLU ’s famous plea.

It has taken key civil rights organizations too long to recognize this private threat to free-speech values. The tradition of civil rights is focused directly on government action alone. I would be the last to say that there ’s not great danger from government misbehavior. But there is also danger to free speech from private misbehavior. An obsessive refusal to even consider the one threat against the other does not serve the values promoted by the First Amendment.

But then what about public filtering technologies, like PICS? Wouldn’t PICS be a solution that avoided the “secret list problem” you identified?

PICS is an acronym for the World Wide Web Consortium’s Platform for Internet Content Selection. We have already seen a relative (actually, a child) of PICS in the chapter about privacy: P3P. Like PICS, is a protocol for rating and filtering content on the Net. In the context of privacy, the content was made up of assertions about privacy practices, and the regime was designed to help individuals negotiate those practices.

With online speech the idea is much the same. PICS divides the problem of filtering into two parts —labeling (rating content) and then filtering (blocking content on the basis of the rating). The idea was that software authors would compete to write software that could filter according to the ratings; content providers and rating organizations would compete to rate content. Users would then pick their filtering software and rating system. If you wanted the ratings of the Christian Right, for example, you could select its rating system; if I wanted the ratings of the Atheist Left, I could select that. By picking our raters, we would pick the content we wanted the software to filter.

This regime requires a few assumptions. First, software manufacturers would have to write the code necessary to filter the material. (This has already been done in some major browsers). Second, rating organizations would actively have to rate the Net. This, of course, would be no simple task; organizations have not risen to the challenge of billions of web pages. Third, organizations that rated the Net in a way that allowed for a simple translation from one rating system to another would have a competitive advantage over other raters. They could, for example, sell a rating system to the government of Taiwan and then easily develop a slightly different rating system for the “government” of IBM.

If all three assumptions held true, any number of ratings could be applied to the Net. As envisioned by its authors, PICS would be neutral among ratings and neutral among filters; the system would simply provide a language with which content on the Net could be rated, and with which decisions about how to use that rated material could be made from machine to machine. 48

Neutrality sounds like a good thing. It sounds like an idea that policymakers should embrace. Your speech is not my speech; we are both free to speak and listen as we want. We should establish regimes that protect that freedom, and PICS seems to be just such a regime.

But PICS contains more “neutrality” than we might like. PICS is not just horizontally neutral—allowing individuals to choose from a range of rating systems the one he or she wants; PICS is also vertically neutral —allowing the filter to be imposed at any level in the distributional chain. Most people who first endorsed the system imagined the PICS filter sitting on a user ’s computer, filtering according to the desires of that individual. But nothing in the design of PICS prevents organizations that provide access to the Net from filtering content as well. Filtering can occur at any level in the distributional chain —the user, the company through which the user gains access, the ISP, or even the jurisdiction within which the user lives. Nothing in the design of PICS, that is, requires that such filters announce themselves. Filtering in an architecture like PICS can be invisible. Indeed, in some of its implementations invisibility is part of its design. 49

This should set off alarms for those keen to protect First Amendment values—even though the protocol is totally private. As a (perhaps) unintended consequence, the PICS regime not only enables nontransparent filtering but, by producing a market in filtering technology, engenders filters for much more than Ginsberg speech. That, of course, was the ACLU’s legitimate complaint against the original CDA. But here the market, whose tastes are the tastes of the community, facilitates the filtering. Built into the filter are the norms of a community, which are broader than the narrow filter of Ginsberg. The filtering system can expand as broadly as the users want, or as far upstream as sources want.

The H2M+KMB solution alternative is much narrower. It enables a kind of private zoning of speech. But there would be no incentive for speakers to block out listeners; the incentive of a speaker is to have more, not fewer, listeners. The only requirements to filter out listeners would be those that may constitutionally be imposed —Ginsberg speech requirements. Since they would be imposed by the state, these requirements could be tested against the Constitution, and if the state were found to have reached too far, it could be checked.

The difference between these two solutions, then, is in the generalizability of the regimes. The filtering regime would establish an architecture that could be used to filter any kind of speech, and the desires for filtering then could be expected to reach beyond a constitutional minimum; the zoning regime would establish an architecture for blocking that would not have this more general purpose.

Which regime should we prefer?

Notice the values implicit in each regime. Both are general solutions to particular problems. The filtering regime does not limit itself to Ginsberg speech; it can be used to rate, and filter, any Internet content. And the zoning regime, in principle, is not limited to zoning only for Ginsberg speech. The <H2M> kids-ID zoning solution could be used to advance other child protective schemes. Thus, both have applications far beyond the specifics of porn on the Net.

At least in principle. We should be asking, however, what incentives are there to extend the solution beyond the problem. And what resistance is there to such extensions?

Here we begin to see the important difference between the two regimes. When your access is blocked because of a certificate you are holding, you want to know why. When you are told you cannot enter a certain site, the claim to exclude is checked at least by the person being excluded. Sometimes the exclusion is justified, but when it is not, it can be challenged. Zoning, then, builds into itself a system for its own limitation. A site cannot block someone from the site without that individual knowing it. 50

Filtering is different. If you cannot see the content, you cannot know what is being blocked. Content could be filtered by a PICS filter somewhere upstream and you would not necessarily know this was happening. Nothing in the PICS design requires truth in blocking in the way that the zoning solution does. Thus, upstream filtering becomes easier, less transparent, and less costly with PICS.

This effect is even clearer if we take apart the components of the filtering process. Recall the two elements of filtering solutions —labeling content, and then blocking based on that labeling. We might well argue that the labeling is the more dangerous of the two elements. If content is labeled, then it is possible to monitor who gets what without even blocking access. That might well raise greater concerns than blocking, since blocking at least puts the user on notice.

These possibilities should trouble us only if we have reason to question the value of filtering generally, and upstream filtering in particular. I believe we do. But I must confess that my concern grows out of yet another latent ambiguity in our constitutional past.

There is undeniable value in filtering. We all filter out much more than we process, and in general it is better if we can select our filters rather than have others select them for us. If I read the New York Times rather than the Wall Street Journal, I am selecting a filter according to my understanding of the values of both newspapers. Obviously, in any particular case, there cannot be a problem with this.

But there is also a value in confronting the unfiltered. We individually may want to avoid issues of poverty or of inequality, and so we might prefer to tune those facts out of our universe. But it would be terrible from the standpoint of society if citizens could simply tune out problems that were not theirs, because those same citizens have to select leaders to manage these very problems. 51

In real space we do not have to worry about this problem too much because filtering is usually imperfect. However much I ’d like to ignore homelessness, I cannot go to my bank without confronting homeless people on the street; however much I ’d like to ignore inequality, I cannot drive to the airport without passing through neighborhoods that remind me of how unequal a nation the United States is. All sorts of issues I ’d rather not think about force themselves on me. They demand my attention in real space, regardless of my filtering choices.

Of course, this is not true for everyone. The very rich can cut themselves off from what they do not want to see. Think of the butler on a 19th-century English estate, answering the door and sending away those he thinks should not trouble his master. Those people lived perfectly filtered lives. And so do some today.

But most of us do not. We must confront the problems of others and think about issues that affect our society. This exposure makes us better citizens. 52 We can better deliberate and vote on issues that affect others if we have some sense of the problems they face.

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 First Amendment?

Some believe that it would not be. Cass Sunstein, for example, has argued quite forcefully that the framers embraced what he calls a “Madisonian” conception of the First Amendment.53 This Madisonian conception rejects the notion that the mix of speech we see should solely be a function of individual choice. 54 It insists, Sunstein claims, on ensuring that we are exposed to the range of issues we need to understand if we are to function as citizens. It therefore would reject any architecture that makes consumer choice trump. Choice is not a bad circumstance in the Madisonian scheme, but it is not the end of the matter. Ithiel de Sola Pool makes a very similar point:

What will it mean if audiences are increasingly fractionated into small groups with special interests? What will it mean if the agenda of national fads and concerns is no longer effectively set by a few mass media to which everyone is exposed? Such a trend raises for society the reverse problems from those posed by mass conformism. The cohesion and effective functioning of a democratic society depends upon some sort of public agora in which everyone participates and where all deal with a common agenda of problems, however much they may argue over the solutions. 55

On the other side are scholars such as Geoffrey Stone, who insists just as strongly that no such paternalistic ideal is found anywhere in the conception of free speech embraced by our framers. 56 The amendment, he says, is merely concerned with banning state control of private choice. Since enabling private choice is no problem under this regime, neither is perfect filtering.

This conflict among brilliant University of Chicago law professors reveals another latent ambiguity, and, as with other such ambiguity, I do not think we get far by appealing to Madison. To use Sunstein against Sunstein, the framers ’ First Amendment was an incompletely theorized agreement, and it is better simply to confess that it did not cover the case of perfect filtering. The framers couldn ’t imagine a PICS-enabled world; they certainly didn’t agree upon the scope of the First Amendment in such a world. If we are to support one regime over another, we must do so by asserting the values we want to embrace rather than claiming they have already been embraced.

So what values should we choose? In my view, we should not opt for perfect filtering. 57 We should not design for the most efficient system of censoring—or at least, we should not do this in a way that allows invisible upstream filtering. Nor should we opt for perfect filtering so long as the tendency worldwide is to overfilter speech. If there is speech the government has an interest in controlling, then let that control be obvious to the users. A political response is possible only when regulation is transparent.

Thus, my vote is for the regime that is least transformative of important public values. A zoning regime that enables children to self-identify is less transformative than a filtering regime that in effect requires all speech to be labeled. A zoning regime is not only less transformative but less enabling (of other regulation) —it requires the smallest change to the existing architecture of the Net and does not easily generalize to a far more significant regulation.

I would opt for a zoning regime even if it required a law and the filtering solution required only private choice. If the state is pushing for a change in the mix of law and architecture, I do not care that it is pushing with law in one context and with norms in the other. From my perspective, the question is the result, not the means —does the regime produced by these changes protect free speech values?

Others are obsessed with this distinction between law and private action. They view regulation by the state as universally suspect and regulation by private actors as beyond the scope of constitutional review. And, to their credit, most constitutional law is on their side.

But as I’ve hinted before, and defend more below, I do not think we should get caught up in the lines that lawyers draw. Our question should be the values we want cyberspace to protect. The lawyers will figure out how.

The annoying skeptic who keeps noting my “inconsistencies” will like to pester me again at this point. In the last chapter, I embraced an architecture for privacy that is in essence the architecture of PICS. P3P, like PICS, would enable machine-to-machine negotiation about content. The content of P3P is rules about privacy practices, and with PICS it is rules about content. But how, the skeptic asks, can I oppose one yet favor the other?

The answer is the same as before: The values of speech are different from the values of privacy; the control we want to vest over speech is less than the control we want to vest over privacy. For the same reasons that we disable some of the control over intellectual property, we should disable some of the control over speech. A little bit of messiness or friction in the context of speech is a value, not a cost.

But are these values different just because I say they are? No. They are only different if we say they are different. In real space we treat them as different. My core argument is that we choose how we want to treat them in cyberspace.

Regulating Spam

Spam is perhaps the most theorized problem on the Net. There are scores of books addressing how best to deal with the problem. Many of these are filled with ingenious technical ideas for ferreting out spam, from advanced Bayesian filter techniques to massive redesigns of the e-mail system.

But what is most astonishing to me as a lawyer (and depressing to me as the author of Code) is that practically all of these works ignore one important tool with which the problem of spam could be addressed: the law. It ’s not that they weigh the value of the law relative to, for example, Bayesian filters or the latest in heuristic techniques, and conclude it is less valuable than these other techniques. It ’s that they presume the value of the law is zero—as if spam were a kind of bird flu which lived its own life totally independently of what humans might want or think.

This is an extraordinary omission in what is, in effect, a regulatory strategy. As I have argued throughout this book, the key to good policy in cyberspace is a proper mix of modalities, not a single silver bullet. The idea that code alone could fix the problem of spam is silly —code can always be coded around, and, unless the circumventers are not otherwise incentivized, they will code around it. The law is a tool to change incentives, and it should be a tool used here as well.

Most think the law can’t play a role here because they think spammers will be better at evading the law than they are at evading spam filters. But this thinking ignores one important fact about spam. “Spam” is not a virus. Or at least, when talking about “spam,” I’m not talking about viruses. My target in this part is communication that aims at inducing a commercial transaction. Many of these transactions are ridiculous—drugs to stop aging, or instant weight loss pills. Some of these transactions are quite legitimate —special sales of overstocked products, or invitations to apply for credit cards. But all of these transactions aim in the end to get something from you: Money. And crucially, if they aim to get money from you, then there must be someone to whom you are giving your money. That someone should be the target of regulation.

So what should that regulation be?

The aim here, as with porn, should be to regulate to the end of assuring what we could call “consensual communication.” That is, the only purpose of the regulation should be to block nonconsensual communication, and enable consensual communication. I don ’t believe that purpose is valid in every speech context. But in this context—private e-mail, or blogs, with limited bandwidth resources, with the costs of the speech born by the listener—it is completely appropriate to regulate to enable individuals to block commercial communications that they don ’t want to receive.

So how could that be done?

Today, the only modality that has any meaningful effect upon the supply of spam is code. Technologists have demonstrated extraordinary talent in devising techniques to block spam. These techniques are of two sorts —one which is triggered by the content of the message, and one which is triggered by the behavior of the sender.

The technique that is focused upon content is an array of filtering technologies designed to figure out what the meaning of the message is. As Jonathan Zdziarski describes, these techniques have improved dramatically. While early heuristic filtering techniques had error rates around 1 in 10, current Bayesian techniques promise up to 99.5% –99.95% accuracy.58

But the single most important problem with these techniques is the arms race that they produce. 59 Spammers have access to the same filters that network administrators use to block spam —at least if the filters are heuristic.60 They can therefore play with the message content until it can defeat the filter. That then requires filter writers to change the filters. Some do it well; some don ’t. The consequence is that the filters are often over and under inclusive—blocking much more than they should or not blocking enough.

The second code-based technique for blocking spam focuses upon the e-mail practices of the sender —meaning not the person sending the e-mail, but the “server” that is forwarding the message to the recipient. A large number of network vigilantes —by which I mean people acting for the good in the world without legal regulation—have established lists of good and bad e-mail servers. These blacklists are compiled by examining the apparent rules the e-mail server uses in deciding whether to send e-mail. Those servers that don ’t obey the vigilante’s rules end up on a blacklist, and people subscribing to these blacklists then block any e-mail from those servers.

This system would be fantastic if there were agreement about how best to avoid “misuse” of servers. But there isn’t any such agreement. There are instead good faith differences among good people about how best to control spam. 61 These differences, however, get quashed by the power of the boycott. Indeed, in a network, a boycott is especially powerful. If 5 out of 100 recipients of your e-mail can ’t receive it because of the rules your network administrator adopts for your e-mail server, you can be sure the server ’s rules—however sensible—will be changed. And often, there’s no appeal of the decision to be included on a blacklist. Like the private filtering technologies for porn, there ’s no likely legal remedy for wrongful inclusion on a blacklist. So many types of e-mail services can’t effectively function because they don’t obey the rules of the blacklists.

Now if either or both of these techniques were actually working to stop spam, I would accept them. I ’m particularly troubled by the process-less blocking of blacklists, and I have personally suffered significant embarrassment and costs when e-mail that wasn ’t spam was treated as spam. Yet these costs might be acceptable if the system in general worked.

But it doesn’t. The quantity of spam continues to increase. The Raducatu Group “predicts that by 2007, 70% of all e-mail will be spam.”62 And while there is evidence that the rate of growth in spam is slowing, there’s no good evidence the pollution of spam is abating.63 The only federal legislative response, the CAN-SPAM Act, while preempting many innovative state solutions, is not having any significant effect. 64

Not only are these techniques not blocking spam, they are also blocking legitimate bulk e-mail that isn ’t—at least from my perspective65—spam. The most important example is political e-mail. One great virtue of e-mail was that it would lower the costs of social and political communication. That in turn would widen the opportunity for political speech. But spam-blocking technologies have now emerged as a tax on these important forms of social speech. They have effectively removed a significant promise the Internet originally offered.

Thus, both because regulation through code alone has failed, and because it is actually doing harm to at least one important value that the network originally served, we should consider alternatives to code regulation alone. And, once again, the question is, what mix of modalities would best achieve the legitimate regulatory end?

Begin with the problem: Why is spam so difficult to manage? The simple reason is that it comes unlabeled. There ’s no simple way to know that the e-mail you’ve received is spam without opening the e-mail.

That’s no accident. Spammers know that if you knew an e-mail was spam, you wouldn’t open it. So they do everything possible to make you think the e-mail you’re receiving is not spam.

Imagine for a moment that we could fix this problem. Imagine a law that required spam to be labeled, and imagine that law worked. I know this is extremely difficult to imagine, but bear with me for a moment. What would happen if every spam e-mail came with a specified label in its subject line —something like [ADV] in the subject line.66

Well, we know what would happen initially. Everyone (or most of us) would either tell our e-mail client or ask our e-mail service to block all e-mail with [ADV] in the subject line. It would be glorious moment in e-mail history, a return to the days before spam.

But the ultimate results of a regulation are not always its initial results. And it ’s quite clear with this sort of regulation, initial results would be temporary. If there ’s value in unsolicited missives to e-mail inboxes, then this initial block would be an incentive to find different ways into an inbox. And we can imagine any number of different ways:

• Senders could get recipients to opt-into receiving such e-mail. The opt-in would change the e-mail from unsolicited to solicited. It would no longer be spam.

• Senders could add other tags to the subject line. For example, if this spam were travel spam, the tags could be [ADV] [Travel]. Then recipients could modify their filter to block all ADV traffic except Travel e-mails.

• Senders could begin to pay recipients for receiving e-mails. As some have proposed, the e-mail could come with an attachment worth a penny, or something more. Recipients could select to block all ADVs except those carrying cash.

The key to each of these modified results is that the recipient is now receiving commercial e-mail by choice, not by trick. This evolution from the initial regulation thus encourages more communication, but only by encouraging consensual communication. Nonconsensual communication —assuming again the regulation was obeyed—would be (largely) eliminated.

So in one page, I’ve solved the problem of spam—assuming, that is, that the labeling rule is obeyed. But that, of course, is an impossible assumption. What spammer would comply with this regulation, given the initial effect is to radically shrink his market?

To answer this question, begin by returning to the obvious point about spam, as opposed to viruses or other malware. Spammers are in the business to make money. Money-seekers turn out to be relatively easy creatures to regulate. If the target of regulation is in it for the money, then you can control his behavior by changing his incentives. If ignoring a regulation costs more than obeying it, then spammers (on balance) will obey it. Obeying it may mean changing spamming behavior, or it may mean getting a different job. Either way, change the economic incentives, and you change spamming behavior.

So how can you change the incentives of spammers through law? What reason is there to believe any spammer would pay attention to the law?

People ask that question because they realize quite reasonably that governments don ’t spend much time prosecuting spammers. Governments have better things to do (or so they think). So even a law that criminalized spam is not likely to scare many spammers.

But what we need here is the kind of creativity in the adaptation of the law that coders evince when they build fantastically sophisticated filters for spam. If law as applied by the government is not likely to change the incentives of spammers, we should find law that is applied in a way that spammers would fear.

One such innovation would be a well-regulated bounty system. The law would require spam to be marked with a label. That ’s the only requirement. But the penalty for not marking the spam with a label is either state prosecution, or prosecution through a bounty system. The FTC would set a number that it estimates would recruit a sufficient number of bounty hunters. Those bounty hunters would then be entitled to the bounty if they ’re the first, or within the first five, to identify a responsible party associated with a noncomplying e-mail.

But how would a bounty hunter do that? Well, the first thing the bounty hunter would do is determine whether the regulation has been complied with. One part of that answer is simple; the other part, more complex. Whether a label is attached is simple. Whether the e-mail is commercial e-mail will turn upon a more complex judgment.

Once the bounty hunter is convinced the regulation has been breached, he or she must then identify a responsible party. And the key here is to follow an idea Senator John McCain introduced into the only spam legislation Congress has passed to date, the CAN-SPAM Act. That idea is to hold responsible either the person sending the e-mail, or the entity for which the spam is an advertisement.

In 99 percent of the cases, it will be almost impossible to identify the person sending the spam. The techniques used by spammers to hide that information are extremely sophisticated. 67

But the entity for which the spam is an advertisement is a different matter. Again, if the spam is going to work, there must be someone to whom I can give my money. If it is too difficult to give someone my money, then the spam won ’t return the money it needs to pay.

So how can I track the entity for which the spam is an advertisement?

Here the credit card market would enter to help. Imagine a credit card—call it the “bounty hunters’ credit card”—that when verified, was always declined. But when that credit card was used, a special flag was attached to the transaction, and the credit card holder would get a report about the entity that attempted the charge. The sole purpose of this card would be to ferret out and identify misbehavior. Credit card companies could charge something special for this card or charge for each use. They should certainly charge to make it worthwhile for them. But with these credit cards in hand, bounty hunters could produce useable records about to whom money was intended to be sent. And with that data, the bounty hunter could make his claim for the bounty.

But what’s to stop some malicious sort from setting someone else up? Let’s say I hate my competitor, Ajax Cleaners. So I hire a spammer to send out spam to everyone in California, promoting a special deal at Ajax Cleaners. I set up an account so Ajax received the money, and then I use my bounty credit card to nail Ajax. I show up at the FTC to collect my bounty; the FTC issues a substantial fine to Ajax. Ajax goes out of business.

This is a substantial concern with any bounty system. But it too can be dealt with through a careful reckoning of incentives. First, and obviously, the regulation should make such fraud punishable by death. (Ok, not death, but by a significant punishment). And second, any person or company charged with a violation of this spam statute could assert, under oath, that it did not hire or direct any entity to send spam on its behalf. If such an assertion is made, then the company would not be liable for any penalty. But the assertion would include a very substantial penalty if it is proven false —a penalty that would include forfeiture of both personal and corporate assets. A company signing such an oath once would likely be given the benefit of the doubt. But a company or individual signing such an oath more than once would be a target for investigation by the government. And by this stage, the exposure that the spammers would be facing would be enough to make spamming a business that no longer pays.

Here again, then, the solution is a mixed modality strategy. A LAW creates the incentive for a certain change in the CODE of spam (it now comes labeled). That law is enforced through a complex set of MARKET and NORM-based incentives —both the incentive to be a bounty hunter, which is both financial and normative (people really think spammers are acting badly), as well as the incentive to produce bounty credit cards. If done right, the mix of these modalities would change the incentives spammers face. And, if done right, the change could be enough to drive most spammers into different businesses.

Of course there are limits to this strategy. It won’t work well with foreign sites. Nor with spammers who have ideological (or pathological) interests. But these spammers could then be the target of the code-based solutions that I described at the start. Once the vast majority of commercially rational spam is eliminated, the outside cases can be dealt with more directly.

---

This has been a long section, but it makes a couple important points. The first is a point about perspective: to say whether a regulation “abridg[es] the freedom of speech, or of the press” we need a baseline for comparison. The regulations I describe in this section are designed to restore the effective regulation of real space. In that sense, in my view, they don ’t “abridge” speech.

Second, these examples show how doing nothing can be worse for free-speech values than regulating speech. The consequence of no legal regulation to channel porn is an explosion of bad code regulation to deal with porn. The consequence of no effective legal regulation to deal with spam is an explosion of bad code that has broken e-mail. No law, in other words, sometimes produces bad code. Polk Wagner makes the same point: “[l]aw and software together define the regulatory condition. Less law does not necessarily mean more freedom. ”68 As code and law are both regulators (even if different sorts of regulators) we should be avoiding bad regulation of whatever sort.

Third, these examples evince the mixed modality strategy that regulating cyberspace always is. There is no silver bullet —whether East Coast code or West Coast code. There is instead a mix of techniques—modalities that must be balanced to achieve a particular regulatory end. That mix must reckon the interaction among regulators. The question, as Polk Wagner describes it, is for an equilibrium. But the law has an important role in tweaking that mix to assure the balance that advances a particular policy.

Here, by regulating smartly, we could avoid the destructive code-based regulation that would fill the regulatory gap. That would, in turn, advance free speech interests.

The Regulations of Speech: Free Culture

The third context in which to consider the special relevance of cyberspace to free speech follows directly from Chapter 10. As I describe there, the interaction between the architecture of copyright law and the architecture of digital networks produces an explosion of creativity within reach of copyright never contemplated by any legislature.

The elements in that change are simple. Copyright law regulates, at a minimum, “copies.” Digital networks function by making “copies”: There’s no way to use a work in a digital environment without making a copy. Thus, every single use of creative work in a digital environment triggers, in theory at least, copyright.

This is a radical change from life in real space. In real space, there are any number of ways to “use” a creative work without triggering the law of copyright. When you retell a joke to friends, the law of copyright is not invoked —no “copy” is made, and to friends, no public performance occurs. When you loan a friend your book, the law of copyright is not triggered. When you read a book, the law of copyright would never take notice. Practically every single ordinary use of culture in real space is free of the regulation of copyright. Copyright targets abnormal uses —such as “publishing” or public performances.

The gap between normal and abnormal uses began to close as the technologies for “copying” were democratized. Xerox created the first blip; cassette tape recorders were close behind. But even these technologies were the exception, never the rule. They raised copyright questions, but they didn ’t inject copyright into the center of ordinary life.

Digital technologies have. As more and more of ordinary life moves onto the Internet, more and more of ordinary life is subject to copyright. The functional equivalent to activities from real space that were essentially unregulated is now subject to copyright ’s rule in cyberspace. Creativity activity that never needed to grapple with copyright regulation must now, to be legal, clear a whole host of hurdles, some of which, because of the insanely inefficient property system that copyright is, are technically impossible. A significant portion of creative activity has now moved from a free culture to a permission culture. And the question for the values of free speech is whether that expanded regulation should be allowed to occur unchecked.

Again, I have my own (overly strong) views about the matter.69 I continue to be astonished that a Court so keen to avoid “rais[ing] the costs of being a producer of sexual materials troubling to the majority ”70 is apparently oblivious to the way copyright law raises the costs of being a producer of creative and critical speech.

But for our purposes here, we should simply note once again a latent ambiguity in our constitutional tradition. As the Supreme Court has held, the First Amendment imposes important limitations on the scope of copyright. Among those are at least the requirements that copyright not regulate “ideas,” and that copyright be subject to “fair use.”

But these “traditional First Amendment safeguards” were developed in a context in which copyright was the exception, not the rule. We don ’t yet have a tradition in which every single use of creative work is subject to copyright ’s reach. Digital technologies have produced that world. But most of the rest of the world has not yet woken up to it.

So what should First Amendment values be in this world? One view is that the First Amendment should have no role in this world —beyond the minimal protections of the “idea/expression” distinction and the requirement of “fair use.” In this view, the scope of Congress’s regulation of creative activities is, subject to these minimal conditions, plenary. Any creative act reduced to a tangible form could be subject to the monopoly right of copyright. And as every creative act in digital context is reduced to a tangible form, this view means that everything in the digital world could be made subject to copyright.

The opposite view rejects this unlimited scope for copyright. While the monopoly right of copyright makes sense in certain commercial contexts, or more broadly, makes sense where it is necessary to “promote . . . progress,” there is no legitimate reason to burden the vast majority of creative expression with the burdens of copyright law. That a kid making a video book report needs to clear permissions with the author of the book, or that friends making a mashup of a favorite artist can ’t do so unless the label has granted them permission, extends the reach of copyright beyond any legitimate purpose.

But between these two views, it is plain that the Framers never made a choice. They were never confronted with the option that copyright could (efficiently) control every single use of a creative work. Any control possible in 1790 would have been radically too burdensome. And while I have my bets about how they would vote, given their strong antipathy to monopolies and the very restrictive IP clause they enacted, that ’s nothing more than a bet. If there’s a choice to be made here, it is a choice they didn’t make. It is instead a choice that we must make: Whether the values of free speech restrict this radical increase in the scope of copyright ’s regulation.

The Regulators of Speech: Distribution

So far my arguments about architecture have been about architectures in cyberspace. In this final story, I blur the borders a bit. I want to use the architecture of cyberspace to show something important about the regulation of broadcasting.

The Federal Communications Commission regulates speech. If I wanted to broadcast a political speech on FM radio at a frequency of 98.6 MHz in San Francisco, the FCC would have me prosecuted. 71 To speak on 98.6 in San Francisco, I need a license, because to speak using these radio frequencies without a license is a crime. It is a crime despite the fact that the Constitution says, “Congress shall make no law . . . abridging the freedom of speech, or of the press. ” What gives?

The answer rests on a deeply held assumption at the core of our jurisprudence governing broadcasting technologies: Only a fixed amount of “spectrum” is available for broadcasting, and the only way to facilitate broadcasting using that spectrum is to allocate slices of it to users, who are then the ones entitled to use their allocated spectrum within a particular geographical region. Without allocation, there would be chaos, the assumption goes. And chaos would kill broadcasting.

This view first came on the constitutional scene after Congress passed the Radio Act of 1927. 72 In 1926 Secretary of Commerce Herbert Hoover gave up the practice of controlling broadcasting after a number of circuit courts held that he did not have the power to do so. If he did not have the power, he said, then the invisible hand would have to govern. But Hoover was no real friend of the invisible hand. He predicted what would happen when he withdrew federal jurisdiction —chaos—and some suggest his aim was to help bring about just what he predicted. Stations would override other stations, he said; broadcasting would be a mess. When some confusion did arise, Hoover used this to justify new federal regulation. 73

Congress then rode to the rescue by authorizing the FCC to regulate spectrum in a massively invasive way. Only the licensed could speak; what they said would be controlled by their license; they had to speak in the public interest; they had to share their resource with their opponents. In short, Congress said, broadcasting had to be regulated in the same way the Soviet Union regulated wheat. 74 We had no choice. As Justice Felix Frankfurter said in upholding the regime, such sovietism was compelled by the “nature” of radio.75

From the beginning, however, there have been skeptics of this view. Not skeptics about the idea that spectrum must be regulated, but about the manner by which it is regulated. Is it really necessary to have a central agency allocate what in effect are property rights? As these skeptics argued, the common law had done just fine before the federal government entered. It could also do fine if the government simply made spectrum a kind of tradable property right. Ronald Coase was most famous for pushing for a regime in which spectrum was auctioned rather than licensed. 76 And Coase’s idea caught on—fifty years later. In the United States, the FCC now auctions huge chunks of the broadcasting spectrum. Just this year, it is positioning itself to sell prime real estate spectrum —the part that used to broadcast UHF television.

Now under either scenario—either when the FCC allocates spectrum or when it allocates property rights to spectrum —there is a role for the government. That role is most extensive when the FCC allocates spectrum: Then the FCC must decide who should get what. When spectrum is property, the FCC need only enforce the boundaries that the property right establishes. It is, in a way, a less troubling form of government action than the government deciding who it likes best.

Both forms of government regulation, however, produce a “press” (at least the press that uses spectrum) that is very different from the “press” at the founding. In 1791, the “press” was not the New York Times or the Wall Street Journal. It was not comprised of large organizations of private interests, with millions of readers associated with each organization. Rather, the press was much like the Internet today. The cost of a printing press was low, the readership was slight, the government subsidized its distribution, and anyone (within reason) could become a publisher. An extraordinary number did. 77

Spectrum licenses and spectrum property, however, produce a very different market. The cost of securing either becomes a barrier to entry. It would be like a rule requiring a “newspaper license” in order to publish a newspaper. If that license was expensive, then fewer could publish. 78

Of course, under our First Amendment it would be impossible to imagine the government licensing newspapers (at least if that license was expensive and targeted at the press). That ’s because we all have a strong intuition that we want competition to determine which newspapers can operate, not artificial governmental barriers. And we all intuitively know that there ’s no need for the government to “rationalize” the newspaper market. People are capable of choosing among competing newspapers without any help from the government.

So what if the same were true about spectrum? Most of us haven’t any clue about how what we call “spectrum” works. The weird sounds and unstable reception of our FM and AM radios make us think some kind of special magic happens between the station and receiver. Without that magic, radio waves would “interfere” with each other. Some special coordination is thought necessary to avoid such “collision” and the inevitable chaos that would result. Radio waves, in this view, are delicate invisible airplanes, which need careful air traffic controllers to make sure disaster doesn ’t strike.

But what most of us think we know about radio is wrong. Radio waves aren’t butterflies. They don’t need the protection of the federal bureaucrats to do their work. And as technology that is totally familiar to everyone using the Internet demonstrates, there is in fact very little reason for either spectrum-licenses or spectrum-property. The invisible hand, here, can do all the work.

To get a clue about how, consider two contexts, at least one of which everyone is familiar with. No doubt, radio waves are different from sound waves. But for our purposes here, the following analogy works.

Imagine you’re at a party. There are 50 people in the room, and each of them is talking. Each is therefore producing sound waves. But though these many speakers produce different sound waves, we don ’t have any trouble listening to the person speaking next to us. So long as no one starts shouting, we can manage to hear quite well. More generally, a party (at least early in the evening) is comprised of smart speakers and listeners who coordinate their speaking so that most everyone in the room can communicate without any real trouble.

Radios could function similarly—if the receiver and transmitter were analogously intelligent. Rather than the dumb receivers that ordinary FM or AM radio relies upon, smart radios could figure out what to listen to and communicate with just as people at a party learn to focus on the conversation they ’re having.

The best evidence of this is the second example I offer to dislodge the common understanding of how spectrum works. This example is called “WiFi.” WiFi is the popular name of a particular set of protocols that together enable computers to “share” bands of unlicensed spectrum. The most popular of these bands are in the 2.5 GHz and 5 GHz range. WiFi enables a large number of computers to use that spectrum to communicate.

Most of the readers of this book have no doubt come across WiFi technology. I see it every day I teach: a room full of students, each with a laptop, the vast majority on the Internet —doing who knows what. The protocols within each machine enable them all to “share” a narrow band of spectrum. There is no government or regulator that tells which machine when it can speak, any more than we need the government to make sure that people can communicate at cocktail parties.

These examples are of course small and limited. But there is literally a whole industry now devoted to spreading the lesson of this technology as broadly as possible. Some theorists believe the most efficient use of all spectrum would build upon these models —using ultra-wide-band technologies to maximize the capacity of radio spectrum. But even those who are skeptical of spectrum utopia are coming to see that our assumptions about how spectrum must be allocated are driven by ignorance about how spectrum actually works.

The clearest example of this false assumption is the set of intuitions we’re likely to have about the necessary limitations in spectrum utilization. These assumptions are reinforced by the idea of spectrum-property. The image we ’re likely to have is of a resource that can be overgrazed. Too many users can clog the channels, just as too many cattle can overgraze a field.

Congestion is certainly a possible consequence of spectrum usage. But the critical point to recognize —and again, a point that echoes throughout this book—is that the possibility congestion depends upon the design. WiFi networks can certainly become congested. But a different architecture for “sharing” spectrum need not. Indeed, under this design, more users don’t deplete capacity—they increase it.79

The key to making this system possible is for every receiver to become a node in the spectrum architecture. Users then wouldn ’t be just consumers of someone else’s broadcast. Instead, receivers are now also broadcasters. Just as peer-to-peer technologies such as BitTorrent harness the bandwidth of users to share the cost of distributing content, users within a certain mesh-network architecture for spectrum could actually increase the spectrum capacity of the network. Under this design, then, the more who use the spectrum, the more spectrum there is for others to use —producing not a tragedy of the commons, but a comedy of the commons.

The basic architecture of this mesh system imagines every computer in the system is both a receiver and a transmitter. Of course, in one sense, that ’s what these machines already are—a computer attached to a WiFi network both receives transmissions from and sends transmissions to the broadcasting node. But that architecture is a 1-to-many broadcasting architecture. The mesh architecture is something different. In a mesh architecture, each radio can send packets of data to any other radio within the mesh. Or, put differently, each is a node in the network. And with every new node, the capacity of the network could increase. In a sense, this is precisely the architecture of much of the Internet. Machines have addresses; they collect packets addressed to that machine from the Net. 80 Your machine shares the Net with every other machine, but the Net has a protocol about sharing this commons. Once this protocol is agreed on, no further regulation is required.

We don’t have go too deep into the technology to recognize the question that I mean this section to pose: If technology makes it possible for radios to share the spectrum —without either spectrum-licenses or spectrum-property—then what justification does the government have for imposing either burden on the use of spectrum? Or, to link it back to the beginning of this section, if spectrum users could share spectrum without any coordination by the government, why is it any more justified to impose a property system on spectrum than it is for the government to charge newspapers for the right to publish?

No doubt, the architecture that enables sharing is not totally free of government regulation. The government may well require that only certified devi ces be used in this network (as the FCC already does with any device that can radiate within a range of spectrum). It may push the technology to the capacity, increasing mesh architecture. It may even reasonably impose nuisance-like limits on the power of any transmitter. But beyond these simple regulations, the government would not try to limit who could use the spectrum. It would not ban the use of spectrum for people who hadn ’t either paid or been licensed.

So here we have two architectures for spectrum—one where spectrum is allocated, and one where spectrum (like the market for newspapers) is shared. Which is more consistent with the First Amendment ’s design?

Here, finally, we have an example of a translation that works. We have a choice between an architecture that is the functional equivalent of the architecture of the American framing and an architecture equivalent to the Soviet framing. One architecture distributes power and facilitates speech; the other concentrates power and raises the price of speech. Between these two, the American framers made a choice. The state was not to be in the business of licensing speakers either directly or indirectly. Yet that is just the business that the current rule for spectrum allocation allows.

A faithful reading of the framers’ Constitution, my colleague Yochai Benkler and I have argued,81 would strike down the regime of spectrum allocation.82 A faithful reading would reject an architecture that so strongly concentrates power. The model for speech that the framers embraced was the model of the Internet —distributed, noncentralized, fully free and diverse. Of course, we should choose whether we want a faithful reading —translation does not provide its own normative support. But if fidelity is our aim, this is its answer.

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 be used as swords against the individual (powers), modalities of protection can be used as shields (rights).

In principle we might think about how the four modalities protect speech, but I have focused here on architectures. Which architectures protect what speech? How does changing an architecture change the kind of speech being protected?

I have not tried to be comprehensive. But I have pushed for a view that addresses the relationship between architectures and speech globally and uses constitutional values to think not just about what is permitted given a particular architecture, but also about which architectures are permitted. Our real-space constitution should inform the values of our cyberspace constitution. At the least, it should constrain the state in its efforts to architect cyberspace in ways that are inconsistent with those values.

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 Chapter Twelve Notes

1. See 47 CFR 73.658(e) (1998); see also Herbert J. Rotfeld et al., "Television Station Stan dards for Acceptable Advertising," Journal of Consumer Affairs 24 (1990): 392.
2. See Strafgesetzbuch (penal code) (StGB) 130�31, reprinted in German Criminal Law, vol. 1, edited by Gerold Harfst, translated by Otto A. Schmidt (W�rzburg: Harfst Verlag, 1989), 75�76.
3. 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 Cryptography, 2d ed., by Bruce Schneier New York: Wiley, 1996, 609): "We the Cypherpunks are dedicated to building anonymous systems. We are defending our privacy with cryptography, with anonymous mail forwarding systems, with digital signatures, and with electronic money. Cypherpunks write code. We know that someone has to write software to defend privacy, and since we can't get privacy unless we all do, we're going to write it. We publish our code so that our fellow Cypherpunks may practice and play with it. Our code is free for all to use, worldwide."
4. 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 link #78.
• Link 78: http://www.eff.org/Misc/Publications/John_Perry_Barlow/HTML/leaving_the_physical_world.html [cached]
5. Or it may well be that our understanding of First Amendment doctrine is insufficiently focused on its history with electronic media. See Marvin Ammori, "Another Worthy Tradition: How the Free Speech Curriculum Ignores Electronic Media and Distorts Free Speech Doctrine," Missouri Law Review 70 (2005): 59.
6. See David Rudenstine, The Day the Presses Stopped: A History of the Pentagon Papers Case (Berkeley: University of California Press, 1996), 101, 139.
7. Ibid., 100.
8. See ibid., 2.
9. See ibid., 2, 42.
10. Ibid., 47�63.
11. 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, The Day the Presses Stopped , 92.
12. See Rudenstine, The Day the Presses Stopped , 105.
13. 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 with his US 976 (1990) (Justice Thurgood Marshall dissenting).
14. 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 US 697, 713�14.
15. 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' than by the more cumbersome apparatus of subsequent punishment. . . . (2) Censors will have a professional bias in favor of censorship, and thus will systematically overvalue government interests and undervalue speech. (3) Censors operate more informally than judges and so afford less procedural safeguards to speakers. (4) Speech suppressed in advance never reaches the marketplace of ideas at all. (5) When speech is suppressed in advance, there is no empirical evidence from which to measure its alleged likely harms"; First Amendment Law (New York: Foundation Press, 1999), 339�40, citing Thomas Emerson, "The Doctrine of Prior Restraint," Law and Contemporary Problems 20 (1955): 648. Frederick Schauer offers a nice balance to this commonplace theory; see "Fear, Risk, and the First Amendment: Unraveling the `Chilling Effect,'" Boston University Law Review 58 (1978): 685, 725�30.
16. 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 offense had been that they were nineteen years old and had low draft numbers. What should we do?" Bickel replied that his "inclinations of humanity overcome the somewhat more abstract devotion to the First Amendment in a case of that sort"; May It Please the Court: The Most Significant Oral Arguments Made Before the Supreme Court Since 1955, edited by Peter Irons and Stephanie Guitton (New York: Free Press, 1993), 173.
17. 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 in direct, immediate, and irreparable damage to our Nation or its people"; New York Times Company v. United States, 403 US 713, 730 (1971) (per curiam). This standard has frequently been thought to reflect the position of the Court; see Laurence H. Tribe, American Constitutional Law (Mineola, N.Y.: Foundation Press, 1978), 731; Morton H. Halperin and Daniel N. Hoffman, Top Secret: National Security and the Right to Know (Washington, D.C.: New Republic Books, 1977), 147 n.22; see also Alderman v. Philadelphia Housing Authority, 496 F2d 164, 170 (3d Cir 1974), cert. denied, 419 US 844 (1974) (prior restraint must be supported by "compelling proof" that it is "essential to a vital government interest").
18. 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.
19. The Milwaukee Sentinel and Fusion magazine had published articles dealing with sim ilar concepts; see A. DeVolpi et al., Born Secret: The H-Bomb, The Progressive Case, and National Security (New York: Pergamon Press, 1981), 102, 106; see also Howard Morland, The Secret That Exploded (New York: Random House, 1981), 223, 225�26.
20. See Floyd Abrams, "First Amendment Postcards from the Edge of Cyberspace," St. John's Journal of Legal Commentary 11 (1996): 693, 699.
21. NTSB Chairman Jim Hall announced later that investigations confirmed that a fuel tank explosion caused the crash; see "Statement of Jim Hall, Chairman, National Transportation Safety Board," July 16, 1998, available at link #79.
• Link 79: http:// www.ntsb.gov/pressrel/1998/980716.htm [cached]
22. See Robert E. Kessler, "TWA Probe: Submarines off Long Island/Sources: But No Link to Crash of Jetliner," Newsday, March 22, 1997, A8.
23. See, for example, James Sanders, The Downing of TWA Flight 800 (New York: Kensing ton Publishing, 1997), 131�37; Accuracy in Media et al., "TWA 800--Missile Website Roadmap," available at link #80; Mark K. Anderson, "Friendly Ire," available at link #81; Ian W. Goddard, "TWA Flight 800 and Facts Pertaining to U.S. Navy Culpability," available at link #82.
• Link 80: http://www.angelfire.com/hi/TWA800/ [cached]
• Link 81: http://personals.valleyadvocate.com/articles/twa3.html [cached]
• Link 82: http://users.erols.com/igoddard/twa-fact.htm [cached]
24. See Sanders, The Downing of TWA Flight 800, 29�30, 75, 70�79, 171�73.
25. We can tell that it is false, of course, as in, "The cat was alive and not alive."
26. Initial CBS article on controversy: available at link #83; CBS acknowledgment of mis take: available at link #84.
• Link 83: http://www.cbsnews.com/stories/2004/09/10/politics/main642729.shtml [cached]
• Link 84: http://www.cbsnews.com/stories/2004/09/20/politics/main644539.shtml [cached]
27. See Howard Kurtz, "Rather Admits `Mistake in Judgment,'" Washington Post, Septem ber 21, 2004, A01. (". . . ending a nearly two-week-long defense of the network's journalistic conduct that media analysts say has badly hurt its credibility.")
28. Jim Giles, "Internet Encyclopedias Go Head to Head," news@nature.com, December 12, 2005, available at link #85.
• Link 85: http://www.nature.com/news/2005/051212/full/438900a.html [cached]
29. See Cass Sunstein, Infortopia: How Many Minds Produce Knowledge (New York: Oxford University Press, 2006).
30. See Seth Finkelstein, Al Gore "invented the Internet"--resources, transcript: Vice Pres ident Gore on CNN's Late Edition (last updated Fri April 28, 2006), available at link #86.
• Link 86: http://www.sethf.com/gore/ [cached]
31. Ibid.
32. Ibid
33. Ginsburg v. New York , 390 US 629 (1968). Obscenity is not constitutionally protected speech, and federal laws prohibit the transportation of obscene materials; see 18 USCA 1462 (1984), amended by 18 USCA 1462 (Supp 1999). In Miller v. California, the Supreme Court described the test for obscenity as: "(a) whether `the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value"; Miller v. California, 413 US 15, 24 (1973) (5�4 decision), rehearing denied, 414 US 881 (1973). Porn, on the other hand, is protected by the First Amendment but may be regulated to promote the state's interest in protecting children from harmful materials so long as the regulation is the least restrictive means to further the articulated interest; see Ginsberg v. New York, 390 US 629, 637�40 (1968). Child porn may be prohibited as obscene material even if it is not obscene under the Miller test, owing to the strong state interest in preventing the sexual exploitation of children; see New York v. Ferber, 458 US 747, 764 (1982). Child porn is not constitutionally protected, and federal law prohibits the transportation of child porn; see 18 USCA 2252 (1984), amended by 18 USCA 2252 (Supp 1999).
34. Justice Sandra Day O'Connor listed more than 40 states with such law in her concur rence in Reno v. ACLU, 521 US 844, 887 n.2.
35. Ginsberg v. New York, 390 US 629 (1968).
36. See Blake T. Bilstad, "Obscenity and Indecency in a Digital Age: The Legal and Political Implications of Cybersmut, Virtual Pornography, and the Communications Decency Act of 1996," Santa Clara Computer and High Technology Law Journal 13 (1997): 321, 336�37.
37. Marty Rimm, "Marketing Pornography on the Information Superhighway: A Survey of 917,410 Images, Descriptions, Short Stories, and Animations Downloaded 8.5 Million Times by Consumers in over 2,000 Cities in Forty Countries, Provinces, and Territories," Georgetown University Law Journal 83 (1995): 1849. Godwin provides the whole history of the Rimm article, describing the most significant problems and consequences of the "misleading" and "false" statements, and its eventual demise; Cyber Rights, 206�59; see also Jonathan Wallace and Mark Mangan, Sex, Laws, and Cyberspace (New York: M&amp;T Books, 1996), ch. 6.
38. See Philip Elmer-DeWitt, "On a Screen Near You: Cyberporn--It's Popular, Pervasive, and Surprisingly Perverse, According to the First Survey of Online Erotica--And There's No Easy Way to Stamp It Out," Time, July 3, 1995.
39. 47 USCA 223(e)(5)(A) (Supp 1999).
40. The law was extinguished (at least in part) at 521 US 844 (1997); see Eugene Volokh, "Freedom of Speech, Shielding Children, and Transcending Balancing," Supreme Court Review 1997 (1997): 141.
41. See Federal Communications Commission v. Pacifica Foundation, 438 US 726, 748�50 (1978) (plurality). Though Pacifica has been criticized strongly, see Steven H. Shiffrin, The First Amendment, Democracy, and Romance (Cambridge, Mass.: Harvard University Press, 1990), 80, as Jonathan Weinberg convincingly argues, Pacifica continues to have influence in the broadcasting context; "Cable TV, Indecency, and the Court," Columbia-VLA Journal of Law and the Arts 21 (1997): 95.
42. Ashcroft v. ACLU, 540 U.S. 1072 (2003). Child Online Privacy Protection Act of 1998, Title XIV, Section 1401.
43. Ashcroft v. ACLU, 540 U.S. 1072 (2003).
44. Ginsberg v. New York, 390 U.S. 629 (1968).
45. There is also a doctrine within First Amendment law that might limit the ability of the government to regulate when the regulation is ineffective. See Reno v. ACLU, 929 F. Supp 824, 848 (D. Pa.1996), where the court talks about how this regulation wouldn't work in foreign jurisdictions anyway.
46. Ann Beeson and Chris Hansen, "Fahrenheit 451.2: Is Cyberspace Burning?" (American Civil Liberties Union White Paper, March 17, 2002).
47. Not all of these filters function by using blacklists. Two examples of filtering programs that use an algorithmic approach rather than blacklists are PixAlert's SafeScreen (available at link #87) and LTU Technologies' ImageSeeker (available at link #88), the latter of which is supposedly being used by the FBI and DHS in child pornography investigations.
• Link 87: http://www.safescreen.net [cached]
• Link 88: http://www.ltutech.com/en/ [cached]
48. Paul Resnick, "PICS-Interest@w3.0rg, Moving On," January 20 1999, available at link #89; Paul Resnick, "Filtering Information on the Internet," Scientific American 106 (March 1997), also available at link #90; Paul Resnick, "PICS, Censorship, and Intellectual Freedom FAQ," available at link #91; Paul Resnick and Jim Miller, "PICS: Internet Access Controls Without Censorship," Communications of the ACM 39 (1996): 87, also available at link #92; Jim Miller, Paul Resnick, et al., "PICS 1.1 Rating Services and Rating Systems--and Their MachineReadable Descriptions," October 31, 1996, available at link #93); Tim Krauskopf, Paul Resnick, et al., "PICS 1.1 Label Distribution--Label Syntax and Communication Protocols," October 31, 1996, available at link #94; Christopher Evans, Paul Resnick, et al., "W3C Recommendation: PICS Rules 1.1, REC-PICS, Rules-971229," December 29, 1997, available at link #95.
• Link 89: http://lists.w3.org/Archives/Public/pics-interest/1999Jan/0000.html [cached]
• Link 90: http://chinese-school.netfirms.com/Internet-filtering.html [cached]
• Link 91: http:// www.w3.org/PICS/PICS-FAQ-980126.html; [cached]
• Link 92: http://www.w3.org/PICS/iacwcv2.htm [cached]
• Link 93: http://www.w3.org/TR/REC-PICS-services [cached]
• Link 94: http://www.w3.org/TR/REC-PICS-labels [cached]
• Link 95: http://www.w3.org/TR/REC-PICSRules [cached]
49. See Jonathan Weinberg, "Rating the Net," Hastings Communications and Entertainment Law Journal 19 (1997): 453, 478 n.108.
50. 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 she believes she is gaining access to.
51. 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; Gerald E. Frug ("Universities and Cities," Connecticut Law Review 30 1998: 1199, 1200), explains how universities erect borders to divorce themselves from surrounding poverty and argues that universities should critique these borders; Lani Guinier ("More Democracy," University of Chicago Legal Forum 1995 1995: 1, 3) advocates a cross-racial participatory democracy that demands a concern for, and a familiarity with, the views of others.
52. 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 Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth `out of a multitude of tongues, rather than through any kind of authoritative selection'").
53. See Sunstein, Democracy and the Problem of Free Speech, xvi�xx; Fiss, The Irony of Free Speech, 3, 37�38; Andrew Shapiro's powerful analysis of Sunstein's point is better tuned to the realities of the Net; see The Control Revolution, 107�12.
54. Sunstein, Democracy and the Problem of Free Speech , xvi�xx.
55. 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.
56. See Geoffrey R. Stone, "Imagining a Free Press," Michigan Law Review 90 (1992): 1246, 1264.
57. Dan Hunter argues it is not our choice anyway. See Dan Hunter, "Philippic.com," California Law Review 90 (2002): 611. Greg Laughlin is convinced the concerns are overstated. See Gregory K. Laughlin, "Sex, Lies, and Library Cards: The First Amendment Implications of the Use of Software Filters to Control Access to Internet Pornography in Public Libraries," Drake Law Review 51 (2003): 213, 267�68 n.287. For a review of Congress's latest effort to facilitate filtering, see Susan P. Crawford, Symposium, "Law and the Information Society, Panel V: Responsibility and Liability on the Internet, Shortness of Vision: Regulatory Ambition in the Digital Age," Fordham Law Review 74 (2005): 1, 6. ("The next information-flow membrane mandate to pass Congress--again, prompted by legislators' fixation on indecent (but legal) content online--was the Children's Internet Protection Act ("CIPA"), which required libraries to install filtering software on all their computers capable of accessing the Internet in order to hold on to their federal funding. The goal of this 2000 legislation was to condition provision of such funding on libraries' use of filters that block access to visual depictions that are harmful to minors (when accessed by a minor). On June 23, 2003, after another three years of litigation, the Supreme Court upheld CIPA, with two "swing" Justices (Anthony Kennedy and Stephen Breyer) suggesting that adults would be able to ask libraries to unblock legal sites (legal for adult viewing, if harmful to minors) that had been blocked by the installed filters. Even though the tie to the CDA was clear--this was another congressional attempt to eliminate online sexual material using technology that would also inevitably filter out protected speech--the link to federal funding made this case one the Justices could decide differently. Indeed, the federal funding element may have been the crucial difference between CDA and CIPA. One European commentator noted the CIPA opinion as an `important shift' by an American legal system that had been `previously critical of government's attempts to regular Internet access.'")
58. Compare Jonathan Zdziarski, "Ending Spam: Bayesian Content Filtering and the Art of Statistical Language Classification 31 (2005) and DSPAM, available at link #96.
• Link 96: http://dspam.nuclearelephant.com/ [cached]
59. Zdziarski, Ibid., 25.
60. Ibid., 31. But a related point can be made about Bayesian filtering as well, since many of the tools are themselves open source or free software. DSPAM, for example, is licensed under the GPL.
61. This is being charitable. Zdziarski is much more critical of "vigilantes who don't adhere to any form of proper procedure before blacklisting networks." Ibid., 28.
62. See Arik Hesseldahl, U.S. Congress Makes No Progress on Spam , December 26, 2003, available at link #97. Also Todd Bishop, Software Notebook: Is Gates' prediction on spam a bust? Seattle Post-Intelligencer (1/23/06). Estimates of success here differ dramatically. Microsoft estimates it blocks 95 percent of spam from reaching e-mail inboxes.
• Link 97: http://www.forbes.com/2003/11/26/cx_ah_1126tentech.html [cached]
63. Jonathan Zdziarski, Ending Spam: Bayesian Content Filtering and the Art of Statistical Language Classification (San Francisco: No Starch Press, 2005) 23.
64. See CAN-SPAM Act of 2003, Public Law 108-187 (2003). For a review of European leg islation, see D. I. Cojocarasu, Anti-spam Legislation Between Privacy and Commercial Interest: An Overview of the European Union Legislation Regarding the E-mail Spam (Oslo: University of Oslo, 2006). In my view, we define spam as "unsolicited bulk commercial e-mail." Each element is necessary. Unsolicited, meaning there is no agreement to receive such e-mail. If there is an agreement, the requirements would be removed. Bulk meaning it would not be intended to regulate circulations to friends or within small groups. Cf. Sonia Arrison, "Canning Spam: An Economic Solution to Unwanted Email" 9 (Pacific Research Institute, Feb. 2004). Commercial meaning it would not regulate social or political e-mail. And e-mail, meaning maybe more than e-mail--perhaps, for example, including blog spam.
65. In my view, Congress should be permitted to discriminate in favor of political speech, and should thus be permitted to exempt political speech from any "spam" regulation. This is not only because of the special value in this speech, but also, and more importantly, because abuse with political speech is more naturally regulated. If I am trying to win your vote, I'm not likely to annoy you with spam. But if I'm trying to sell you Viagra, whether I annoy you or not won't matter much to me.
66. This was the law in many states before the federal CAN-SPAM Act preempted this state law. But as those laws didn't have the enforcement remedy I propose here, they are not directly relevant to the argument I am making here. See "Subject Line Labeling as a Weapon Against Spam," A CAN-SPAM Act Report of Congress (FTC June 2005). This solution is just one instance of a general form which aims to shift the burden of revealing information to the sender. For a much more sophisticated proposal, see Theodore Loder, Marshall Van Alstyne, and Rick Wash (2006) "An Economic Response to Unsolicited Communication", Advances in Economic Analysis and Policy Vol. 6, No. 1, Article 2, available at link #98.
• Link 98: http://www.bepress.com/bejeap/advances/vol6/iss1/art2 [cached]
67. See Spammer-X, Jeffrey Polsuns and Stu Sjouwerman, Inside the Spam Cartel: Trade Secrets from the Dark Side (New York: Syngress Publishing, 2004).
68. R. Polk Wagner, "On Software Regulation," Southern California Law Review 78 (2005): 457, 516.
69. Lessig, Free Culture: The Nature and Future of Creativity , xiii�xvi.
70. Yochai Benkler, "Net Regulation: Taking Stock and Looking Forward," University of Colorado Law Review 71 (2000): 1203, 1249.
71. See, e.g., United States v. Dunifer, 219 F.3d 1004 (9th Cir. 2000). (FCC closure of pirate radio station Free Radio Berkeley); United States v. Any &amp; All Radio Station Transmission Equip., 2004 U.S. Dist. LEXIS 24899 (D.N.Y. 2004); United States v. Szoka, 260 F3d 516 (6th Cir. 2001). See 47 CFR 73.277 (1998).
72. 47 USCA 81�119 (1927) (repealed by the Communications Act of 1934).
73. 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 a powerful critique of Frankfurter's history of the emergence of any necessity for FCC regulation; see Thomas W. Hazlett, "Physical Scarcity, Rent Seeking, and the First Amendment," Columbia Law Review 97 (1997): 905, 933�34.
74. See Turner Broadcasting System, Inc. v Federal Communications Commission, 512 US 622, 637�38 (1997); see also Huber, Law and Disorder in Cyberspace.
75. See National Broadcasting Company, Inc. v. Columbia Broadcasting System, 213.
76. See Ronald H. Coase, "The Federal Communications Commission," Journal of Law and Economics 2 (1959): 1.
77. Paul Starr, The Creation of Media: Political Origins of Modern Communications (Basic Books, 2004), 25�46.
78. Yochai Benkler, "Net Regulation: Taking Stock and Looking Forward," University of Colorado Law Review 71 (2000): 1203.
79. See, for example, research at MIT to build viral mesh networks which increase in capacity as the number of users increases. Collaborative (Viral) Wireless Networks, available at link #99.
• Link 99: http://web.media.mit.edu/~aggelos/viral.html [cached]
80. Ethernet effectively 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 intended for it. This process creates an obvious security hole: "sniffers" can be put on "promiscuous mode" and read packets intended for other machines; see Loshin, TCP/IP Clearly Explained, 44�46.
81. See Yochai Benkler and Lawrence Lessig, "Net Gains," New Republic, December 14, 1998.
82. 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 of Law and Economics 41 (1998): 765. Benkler has spiced it up a bit (in my view, in critical ways) by adding to it the value of the commons. For an extraordinarily powerful push to a similar political (if not technological) end, see Eben Moglen, "The Invisible Barbecue," Columbia Law Review 97 (1997): 945. Moglen notes the lack of debate regarding the sociopolitical consequences of carving up telecommunication rights at the "Great Barbecue" and draws a parallel with the Gilded Age's allocation of benefits and privileges associated with the railroad industry.

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