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There are choices that will determine how cyberspace is. But, in my view, we Americans are disabled from making those choices. We are disabled for three very different reasons. The first is tied to the limits we place on courts; the second to the limits we have realized in legislatures; and the third to the limits in our thinking about code. If choice must be made, these limits mean we will not be making that choice. We are at a time when the most significant decisions about what this space will be are being made, but we don ’t have the institutions, or practice, to evaluate or readily alter them.

In this chapter, I describe these problems, and in Chapter 17, I sketch three solutions to them. Neither description will be complete, but both should be suggestive. The problems that cyberspace reveals are not problems with cyberspace. They are real-space problems that cyberspace shows us we must now resolve —or maybe reconsider.

Problems with Courts

There are two types of constitutions, one we could call codifying, and the other transformative. A codifying constitution tries to preserve something essential about the constitutional or legal culture in which it is enacted —to protect that cultural attribute against changes in the future. A transformative constitution (or amendment) does the opposite: It tries to change something essential in the constitutional or legal culture in which it is enacted —to make life different in the future, to remake some part of the culture. The symbol of the codifying regime is Ulysses tied to the mast; the symbol of the transformative is revolutionary France.

Our Constitution has both regimes within it. The Constitution of 1789—before the first ten amendments—was a transformative constitution. It “called into life” a new form of government and gave birth to a nation.1 The Constitution of 1791—the Bill of Rights—was a codifying constitution. Against the background of the new constitution, it sought to entrench certain values against future change. 2 The Civil War amendments were transformative again. They aimed to remake part of what the American social and legal culture had become —to rip out from the American soul a tradition of inequality and replace it with a tradition and practice of equality. 3

Of these two regimes, the transformative is clearly the more difficult to realize. A codifying regime at least has inertia on its side; a transformative regime must fight. The codifying regime has a moment of self-affirmation; the transformative regime is haunted with self-doubt and vulnerable to being undermined by targeted opposition. Constitutional moments die, and when they do, the institutions charged with enforcing their commands, such as courts, face increasing political resistance. Flashes of enlightenment notwithstanding, the people retain or go back to their old ways, and courts find it hard to resist.

Our own constitutional history reveals just this pattern. The extraordinary moment after the Civil War —when three amendments committed to civil equality were carved into our Constitution ’s soul—had passed by 1875. The nation gave up the struggle for equality and turned to the excitement of the Industrial Revolution. Laws enforcing segregation were upheld; 4 the right of African Americans to vote was denied;5 laws enforcing what was later seen to be a new kind of slavery were allowed.6 Only after one hundred years of continued inequality did the Supreme Court again take up the cause of the Civil War amendments. It would not be until Brown v. Board of Education, in 1954, that the Court again recognized the transformative idea of the Civil War amendments. 7

One could criticize the Court for this century of weakness. I think it is more important to understand its source. Courts operate within a political context. They are the weakest branch of resistance within that political context. For a time, they may be able to insist on a principle greater than the moment, but that time will pass. If the world does not recognize the wrongness of its racist ways, even a strong statement of principle enacted within our Constitution ’s text permits a court only so much freedom to resist. Courts are subject to the constraints of what “everyone” with a voice and the resources to make it heard believes is right, even if what “everyone” believes is inconsistent with basic constitutional texts.

Life is easier with a codifying constitution, because there is a tradition that the text is just meant to entrench. If this tradition is long-standing, then there is hope that it will remain solid as well.

But even a codifying constitution faces difficulties. Codification notwithstanding, if the passions of a nation become strong enough, there is often little that courts are willing to do. The clarity of the First Amendment ’s protection of freedom of speech notwithstanding, when the speech was that of communists and anarchists, the government was allowed the power to punish. 8 The presumption of innocence and equality notwithstanding, when Japan bombed Pearl Harbor, the government was allowed to shuttle every West Coast American of Japanese descent into concentration camps. 9

These are the realities of courts in a democratic system. We lawyers like to romanticize the courts, to imagine them as above influence. But they have never been so, completely or forever. They are subject to a political constraint that matters. They are an institution within a democracy, and no institution within a democracy can be the enemy of the people for long.

It is against this background that we should think about the problems raised in Part s 3 and 4. In each case, my argument was that we will need to choose the values we want cyberspace to embrace. These questions are not addressed by any clear constitutional text or tradition. In the main, they are questions affecting the codifying part of our tradition, but they are also cases of latent ambiguity. There is no “answer” to them in the sense of a judgment that seems to have been made and that a court can simply report. An answer must be fixed upon, not found; made, not discovered; chosen, not reported.

This creates difficulties for an American court. We live in the shadow of the Supreme Court of Chief Justice Earl Warren. Many people think (but I am not one of this crowd) that his was a wildly activist court, that it “made up” constitutional law and imposed its own “personal values” onto the political and legal system. Many viewed the Rehnquist Court as providing a balance to this activism of old.

I think this view is wrong. The Warren Court was not “activist” in any sense inconsistent with a principle of interpretive fidelity, and the Rehnquist Court was no less activist in that sense than the Warren Court. The question, however, is not what was true; the question is what people believe. What we believe is that the past was marked by activism, and that this activism was wrong.

At least wrong for a court. The opponents of the Warren Court are not just conservatives. Some are liberals who believe that the Court was not acting judicially. 10 These opponents believe that the Court was making, not finding, constitutional law —that it was guided by nothing more than whether it could muster a majority.

Any court risks seeming like a “Warren Court” when it makes judgments that don’t seem to flow plainly or obviously from a legal text. Any court is vulnerable when its judgments seem political. Against the background of history, our Supreme Court is particularly vulnerable to this view, and the Court will feel the reaction when its actions seem political.

My point is not that the Court fears retaliation; our Court is secure within our constitutional regime. 11 The Court feels the reaction to its seemingly political decisions because of its own image of its proper role. In its view, its role is not to be “political”; its conception is that it is to be a faithful agent, simply preserving founding commitments until they have changed. 12

But when—as in the cases of latent ambiguity—there are no founding commitments to preserve, any attempt at translation will seem to be something more. And whenever it seems as if the Court is doing more than simply preserving founding commitments, the perception is created that the Court is simply acting to ratify its own views of a proper constitutional regime rather than enforcing judgments that have been constitutionalized by others. 13 In a word, it seems to be acting “politically.”

But what does “political” mean here? It does not mean simply that the Court is making value or policy choices. The claim is not that values are improper reasons for a court to decide a case. To the contrary: Value choices or policy choices, properly ratified by the political process, are appropriate for judicial enforcement. The problem with the choices in cases of latent ambiguity is that they do not seem to have been properly ratified by the political process. They reflect values, but the values do not seem to be taken from the Constitution.

“Political” thus refers to judgments not clearly ratified and presently contested.14 When the very foundations of a judgment are seen to be fundamentally contested, and when there is no reason to believe that the Constitution takes a position on this contest, then enforcing a particular outcome of translation will appear, in that context, political. 15

Cyberspace will press this problem intensely. When a framing value can be translated with some clarity or certainty, the Court can act in a way that resists present majorities in the name of founding commitments. But when ambiguities are latent and a choice really seems to be a choice, translation will not suffice. My claim is that the Court will not be the locus for that choice.

This might seem overly pessimistic, especially when we consider the success in striking down the Communications Decency Act. 16 But that case itself reveals the instability that I fear will soon resolve itself into passivity.

Throughout both lower court opinions, the courts spoke as if they were “finding” facts about the nature of cyberspace. The “findings” determined the constitutional result, and both courts reported their findings with a confidence that made them seem set in stone.

These findings, for the most part, were exceptionally good descriptions of where cyberspace was in 1996. But they did not tell us anything about where cyberspace is going or what it could be. The courts spoke as if they were telling us about the nature of cyberspace. But as we ’ve seen, cyberspace has no intrinsic nature. It is as it is designed. By striking down Congress ’s efforts to zone cyberspace, the courts were not telling us what cyberspace is but what it should be. They were making, not finding, the nature of cyberspace; their decisions are in part responsible for what cyberspace will become.

At first it will not seem this way. When we confront something new, it is hard to know what is natural or given about it, and what part can be changed. But over time courts will see that there is little in cyberspace that is “natural.” Limits on the architecture of cyberspace that they have reported as findings in one opinion will be seen to have been “design choices” later on. What was “impossible” will later become possible, and as these shifts in the possible occur, courts will more and more feel that they cannot really say what cyberspace is. They will see that their findings affect what they find. They will see that they are in part responsible for what cyberspace has become.

This is Heisenberg applied to constitutional law. And as courts notice it, as they have in other areas, they will increasingly defer to the political branches: If these judgments are policy, they will be left to policy makers, not judges. 17

One can hardly blame judges for this. Indeed, in some cases their deference should be encouraged. 18 But we should not underestimate its consequences. In the future legislatures will act relatively unconstrained by courts; the values that we might call constitutional —whether enacted into our Constitution or not—will constrain these legislatures only if they choose to take them into account.

Before we turn to what we might expect from legislatures, consider one other problem with courts —specifically, the problem confronting our constitutional tradition as the Constitution moves into the context of cyberspace. This is the problem of “state action.”

Architectures constitute cyberspace; these architectures are varied; they variously embed political values; some of these values have constitutional import. Yet for the most part —and fortunately—these architectures are private. They are constructed by universities or corporations and implemented on wires no longer funded by the Defense Department. They are private and therefore traditionally outside the scope of constitutional review. The constitutional values of privacy, access, rights of anonymity, and equality need not trouble this new world, since this world is “private” and the Constitution is concerned only with “state action.”

Why this should be is not clear to me. If code functions as law, then we are creating the most significant new jurisdiction since the Louisiana Purchase. Yet we are building it just outside the Constitution ’s review. Indeed, we are building it just so that the Constitution will not govern —as if we want to be free of the constraints of value embedded by that tradition.

So far in this book, I have not relied very much on this private/public distinction. You might say I have ignored it. 19 But I have ignored it not because it makes no sense, but because I don’t know how it could be carried over to the regulation of cyberspace. The concept of state action itself presents a latent ambiguity, and I don ’t think we have a clear idea of how to resolve it.

That latent ambiguity is this: The Constitution was drawn at a time when basic architectures were set. The framers found the laws of nature, the laws of economics, the “natural law” of man; they were not made by government or man.

These architectures constrained, of course, and their constraint was a “regulation.” But the degree to which they could be used as tools of self-conscious control was limited. Town planning was not limited, 20 and beyond laying out a space, there was little these founders could do about the rules that would govern the built environment of this space.

Cyberspace, however, has different architectures, whose regulatory power are not so limited. An extraordinary amount of control can be built into the environment that people know there. What data can be collected, what anonymity is possible, what access is granted, what speech will be heard —all these are choices, not “facts.” All these are designed, not found.

Our context, therefore, is very different. That the scope of constitutional review was limited in the first context does not compel it to be similarly limited in the second. It could be, but we cannot know that merely from its being so limited in a very different context.

We have no answer from the framers, then, about the scope of state action. We must decide on our own what makes better sense of our constitutional tradition. Is it more faithful to our tradition to allow these structures of control, the functional equivalent of law, to develop outside the scope of constitutional review? Or should we extend constitutional review to the structures of private regulation, to preserve those fundamental values within our tradition?

These are hard questions, though it is useful to note that they are not as hard to ask in other constitutional regimes. The German tradition, for example, would have less trouble with the idea that private structures of power must ultimately be checked against fundamental constitutional values. 21 The German tradition, of course, is not our own. But the fact that they have sustained this view suggests that we can make space for the constraint of the Constitution without turning everything into a constitutional dispute. Reasoned decision is possible without turning every private contract into a federal case.

Nevertheless, it will take a revolution in American constitutional law for the Court, self-consciously at least, to move beyond the limits of state action. Scholars have sketched how it could without radically remaking American law, but others have argued it could not without radically remaking the American Constitution. 22

But my reason for ignoring the state action doctrine is not so much to radically remake law as it is to give us a clearer sense of how we should make the law in this new space in the first place. As Paul Berman puts it, the reason to ignore the state action doctrine for now is that:

. . . however such questions get resolved, at least we will have been forced to grapple with the substantive constitutional question and to articulate the competing values at stake. The state action doctrine, in contrast, takes such debates off the table altogether by asserting that the activity at issue is private and therefore not a fit subject for the constitutional discourse. If one believes that such discourse, in and of itself, has cultural value, then application of the state action doctrine comes with a significant cost. 23

Again, it remains likely that we will continue to suffer this cost.

It is in these two ways then that courts are stuck. They cannot be as creative, and the scope of their constitutional review has been narrowed (artificially, I believe) to exclude the most important aspect of cyberspace ’s law—code. If there are decisions about where we should go, and choices about the values this space will include, then these are choices we can ’t expect our courts to make.

Problems with Legislators

At a conference in former Soviet Georgia, sponsored by some Western agency of democracy, an Irish lawyer was trying to explain to the Georgians what was so great about a system of “judicial review” (the system by which courts can strike down the acts of a parliament). “Judicial review,” he enthused, “is wonderful. Whenever the court strikes down an act of parliament, the people naturally align themselves with the court, against the parliament. The parliament, people believe, is just political; the supreme court, they think, is principled. ” A Georgian friend, puppy-democrat that he was, asked, “So why is it that in a democracy the people are loyal to a nondemocratic institution and repulsed by the democratic institution in the system? ” “You just don’t understand democracy,” said the lawyer.

When we think about the question of governing cyberspace—when we think about the questions of choice I’ve sketched, especially those raised in Part III—we are likely to get a sinking feeling. It seems impossibly difficult, this idea of governing cyberspace. Who is cyberspace? Where would it vote? The very idea seems abhorrent to cyberspace itself.

But the problem here is not with governance in cyberspace. Our problem is with governance itself. There is no special set of dilemmas that cyberspace will present; there are only the familiar dilemmas of modern governance, but in a new place. Some things are different; the target of governance is different; the scope of international concerns is different. But the difficulty with governance will not come from this different target; the difficulty comes from our problem with governance.

Throughout this book, I’ve worked to identify the choices that cyberspace will present. I’ve argued that its very architecture is up for grabs and that, depending on who grabs it, there are several different ways it could turn out. Clearly some of these choices are collective —about how we collectively will live in this space. One would have thought that collective choices were problems of governance, but very few of us would want government to make these choices. Government seems the solution to no problem we have, and we should understand why this is. We should understand the Irish lawyer in all of us.

Our skepticism is not a point about principle. Most of us are not libertarians. We may be antigovernment, but for the most part we believe that there are collective values that ought to regulate private action. ( “Collective” just in the sense that all individuals acting alone will produce less of that value than if that individual action could be coordinated.) We are also committed to the idea that collective values should regulate the emerging technical world. Our problem is that we do not know how it should be regulated, or by whom. And we fear that the values that will be embraced are not the correct ones.

Like the Irish lawyer, we are weary of governments. We are profoundly skeptical about the product of democratic politics. We believe, rightly or not, that these processes have been captured by special interests more concerned with individual than collective values. Although we believe that there is a role for collective judgments, we are repulsed by the idea of placing the design of something as important as the Internet into the hands of governments.

The examples here are many, and the pattern is arresting. The single unifying message in the government ’s own description of its role in cyberspace is that it should simply get out of the way. In the area of Internet commerce, the government says, commerce should take care of itself. ( Of course, at the same time, the government is passing all sorts of laws to increase the protections for intellectual property.) The government is also seemingly enthusiastic about regulating “indecent” content regardless of the thriving commerce in it.

A perfect example of this point is the government’s hand-off of control of the management of the domain name system. For some time the government had been thinking about how best to continue the governance or control of the domain name system. 24 It had originally farmed the work out under National Science Foundation contracts, first to a California nonprofit organized by the late Jon Postel, and then to a private for-profit corporation, Network Solutions.

The contracts were due to lapse in 1998, however, and for a year the government thought in earnest about what it should do. In June 1998 it released a White Paper calling for the establishment of a nonprofit corporation devoted to the collective interest of the Internet as a whole and charged with deciding the policy questions relating to governing the domain name system. Policy-making power was to be taken away from government and placed with an organization outside its control. In 1998, that policy was effected through the creation of the Internet Corporation for Assigned Names and Numbers (ICANN), which, according to its webpage, is

dedicated to preserving the operational stability of the Internet; to promoting competition; to achieving broad representation of global Internet communities; and to developing policy appropriate to its mission through bottom-up, consensus-based processes. ICANN, a public benefit, non-profit entity, is the international organization responsible for the management and oversight of the coordination of the Internet ’s domain name system and its unique identifiers.25

Think about the kinds of questions my Georgian friend might ask about this move. A “nonprofit corporation devoted to the collective interest”? Isn’t that just what government is supposed to be? A board composed of representative stakeholders? Isn ’t that what a Congress is? Indeed, my Georgian friend might observe that this corporate structure differs from government in only one salient way —there is no ongoing requirement of elections.

This is policy making vested in what is in effect an independent agency, but one wholly outside the democratic process. And what does this say about us? What does it mean when our natural instinct is to put policy-making power in bodies outside the democratic process?

First, it reflects the pathetic resignation that most of us feel about the products of ordinary government. We have lost faith in the idea that the product of representative government might be something more than mere interest —that, to steal the opening line from Justice Marshall’s last Supreme Court opinion, power, not reason, is now the currency of deliberative democracy.26 We have lost the idea that ordinary government might work, and so deep is this despair that not even government thinks the government should have a role in governing cyberspace.

I understand this resignation, but it is something we must overcome. We must isolate the cause and separate it from the effect. If we hate government, it is not because the idea of collective values is anathema. If we hate government, it is because we have grown tired of our own government. We have grown weary of its betrayals, of its games, of the interests that control it. But we must find a way to get over that weariness.

One central cause of the dysfunction of government is the corruption suggested by the way government is elected. I don’t mean “corruption” in the traditional sense that saps the energy from so many developing nations. I don ’t believe congressmen are on the take (California’s Randy Cunningham is an exception, of course27); I don’t believe their motives are impure. They are trying to do the best they can in the world they inhabit. But it is that world that is the problem.

For with that world, money controls attention. To become a member of the House of Representatives, you have to run. In 2004, if you ran in an open district, then you spent on average $1,086,437. If you won, you spent $1,442,216. If you ran against an incumbent in 2004, then there ’s a 97.5 percent chance you didn’t win. (Only eight challengers won.) In the Senate, only one challenger defeated a sitting senator in 2004. Incumbency means life tenure in the United States. The average term for a member of Congress rivals the average term for a Supreme Court Justice. 28

To raise this money, members of Congress must spend their time making those with money happy. They do this by listening to their problems, and sometimes, pushing legislation that will solve those problems. That sounds harmless enough, until you begin to realize just how much time they spend doing this fundraising. Former Senator Hollings estimated that one-third of a senator ’s time is spent fundraising.29 That’s probably a significant underestimate.30

Now just think about how absurd these priorities are. Congressmen work for us. If an employee of a restaurant spent 33 percent of her time arranging to get to work, she ’d be fired. But that’s essentially what happens in Washington. The most significant chunk of time for members of Congress is time spent to raise money to remain members of Congress. Is this really what we pay them for?

The problem here is not so much that members of Congress aren’t doing their work. The problem is the way their work gets queered by this need to raise money. The easiest targets for fundraising are the clients of the lobbyists, and the lobbyists have lots of ideas about how to bend the law to benefit their clients.

And so Congress bends, and the law gets changed to benefit the most powerful in the economy. This is not capitalism as much as lobby-ism. Our economy is defined by a combination of laws benefiting some and power benefiting some.

To crack through lobbyism, you need a way to get the attention of members of Congress. But until the system is changed, the only way to get their attention is money. This is the cycle. Its results for democracy are vicious. Our Congress sees only what a small set want them to see. And what they see often has no obvious connection to the truth.

If there is a decision to be made about how cyberspace will grow, then that decision will be made. The only question is by whom. We can stand by and do nothing as these choices are made —by others, by those who will not simply stand by. Or we can try to imagine a world where choice can again be made collectively and responsibly.

Problems with Code

At a Harvard workshop around the time the first edition of this book was published, Jean Camp, a Harvard computer scientist who taught in the Kennedy School of Government, said that I had missed the point. The problem, she said, is not that “code is law” or that “code regulates.” The problem is that “we haven’t had a conversation about how code regulates.” And then to the rest of the audience, she said, “Did all of you like the debate we had about whether Microsoft Word documents would carry in them a unique identifying number? Was that a satisfying debate? ”

Her irony carried with it an important insight, and an interesting mistake. Of course, for the computer scientist code is law. And if code is law, then obviously the question we should ask is: Who are the lawmakers? Who writes this law that regulates us? What role do we have in defining this regulation? What right do we have to know of the regulation? And how might we intervene to check it?

All that is perfectly obvious for someone who thinks and breathes the regulations of code. But to a lawyer, both Camp and I, throughout this book, have made a very basic mistake. Code is not law, any more than the design of an airplane is law. Code does not regulate, any more than buildings regulate. Code is not public, any more than a television is public. Being able to debate and decide is an opportunity we require of public regulation, not of private action.

Camp’s mistake is a good one. It is a mistake more of us should make more of the time. Because while of course code is private, and of course different from the U.S. Code, its differences don ’t mean there are not similarities as well. “East Coast Code”—law—regulates by enabling and limiting the options that individuals have, to the end of persuading them to behave in a certain way. “West Coast Code” does the same. East Coast Code does this by increasing the cost to those who would deviate from the rules required by the code. West Coast Code does the same. And while we might argue that East Coast Code is more prevalent —that it regulates and controls a far larger part of our lives—that is a difference in degree, not kind. It’s a reason to be balanced in our concern, not to be unconcerned.

Of course, there are differences between law and code. I don’t think that everything is necessarily public, or that the Constitution should regulate every aspect of private life. I don ’t think it is a constitutional issue when I turn off Rush Limbaugh. But to say that there should be a difference is not to say that the difference should be as absolute as present constitutional thinking makes it. When we lawyers tell the Jean Camps of the world that they are simply making a “mistake” when they bring the values of public law to code, it is rather we who are making the mistake. Whether code should be tested with these constraints of public value is a question, not a conclusion. It needs to be decided by argument, not definition.

This won’t be easy, of course. Code is technical; courts aren’t well positioned to evaluate such technicality. But even so, the failure is not even to try. The formalism in American law, which puts beyond review these structures of control, is a third pathology that inhibits choice. Courts are disabled, legislatures pathetic, and code untouchable. That is our present condition. It is a combination that is deadly for action —a mix that guarantees that little good gets done.

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