For Americans, this ambiguity creates a problem. If we lived in an era when courts felt entitled to select the value that produced an answer that made the most sense in the context, there would be no problem. Latent ambiguities would be answered by choices made by judges — the framers could have gone either way, but our judges choose to go this way.
But we don’t live in such an era, and so we don’t have a way for courts to resolve these ambiguities. As a result, we must rely on other institutions. My claim is a dark one: We have no such institutions. If our ways don’t change, our constitution in cyberspace will be a thinner and thinner regime.
Cyberspace will present us with ambiguities over and over again. It will press this question of how best to go on. We have tools from real space that will help resolve the interpretive questions by pointing us in one direction or another, at least some of the time. But in the end the tools will guide us even less than they do in real space and time. When the gap between their guidance and what we do becomes obvious, we will be forced to do something we’re not very good at doing — deciding what we want, and what is right.
Competing Sovereigns
But regulation by whom? For the rules are different in one place versus another.
This was one important issue raised by Jake Baker. Jake lived in Ann Arbor, Michigan. His life there was subject to the norms of Ann Arbor, and he apparently adapted to these norms reasonably well. The authority of that space governed Jake, and, as far as anyone knew, it appeared to govern him exclusively.
But in cyberspace, Jake’s behavior changed, in part because the norms of the space were different. That created the problem. For when Jake “went to” cyberspace, he didn’t leave real space. In particular, he never left Ann Arbor. While sitting in a dorm at the University of Michigan, he was able to teleport himself — in the only normatively significant sense — to a different world where the norms of civility and decency that governed outside his dorm room did not reign. Cyberspace gave Jake the chance to escape Ann Arbor norms and to live according to the norms of another place. It created a competing authority for Jake and gave him the chance to select between these competing authorities merely by switching his computer on or off.
Again, my point is not that no similar possibility exists in real space — it plainly does. There is no doubt a Jake living in Hackensack, New Jersey (a suburban town with suburban values), who drives every night into lower Manhattan and live s for a few hours according to the “rules” of lower Manhattan. Those rules are not the rules of Hackensack; that life is different. Like Ann Arbor Jake, the Hackensack Jake lives under competing authorities. But between the lives of these two Jakes, there is a difference in degree that ripens into a difference in kind: It is at least conceivable that the Ann Arbor Jake raises a more significant problem for Ann Arbor than the Hackensack Jake raises for Hackensack. The differences could well be greater, and the effect more pervasive.
Nor should we think too narrowly about the competing normative communities into which a Jake might move. “Escape” here can be good or bad. It is escape when a gay teen in an intolerant small town can leave the norms of that town through a gay chat room on America Online[25]; it is escape when a child predator escapes the norms of ordinary society and engages a child in online sex[26]. Both escapes are enabled by the architecture of cyberspace as we now know it. Our attitudes about each, however, are very different. I call the first escape liberating and the second criminal. There are some who would call both escapes criminal, and some who would call both liberating. But the question isn’t about name-calling, it’s about the consequences of living in a world where we can occupy both sorts of space at the same time. When 50 people from 25 jurisdictions around the world spend 2,000 hours building a virtual community in Second Life that is housed on servers in San Francisco, what claim should real world jurisdictions have over that activity? Which of the 25 jurisdictions matters most? Which sovereign should govern?
These four themes frame everything that follows. They also map the understanding that I want this book to provide. Regulation in cyberspace can help us see something important about how all regulation works. That’s the lesson of the first theme, “regulability.” It will also introduce a regulator (“code”) whose significance we don’t yet fully understand. That’s the second theme, “Regulation by Code.” That regulation will render ambiguous certain values that are fundamental to our tradition. Thus, the third theme, “latent ambiguity.” That ambiguity will require us, the United States, to make a choice. But this choice is just one among many that many sovereigns will have to make. In the end the hardest problem will be to reckon these “competing sovereigns”, as they each act to mark this space with their own distinctive values.
I explore these four themes against a background that, as I said at the start, has changed significantly since the first edition of this book. When I first wrote the book, two ideas seemed to dominate debate about the Net: first, that the government could never regulate the Net, and second, that this was a good thing. Today, attitudes are different. There is still the commonplace that government can’t regulate, but in a world drowning in spam, computer viruses, identity theft, copyright “piracy”, and the sexual exploitation of children, the resolve against regulation has weakened. We all love the Net. But if some government could really deliver on the promise to erase all the bads of this space, most of us would gladly sign up.
Yet while attitudes about the Net have progressed, my own views have not. I still believe the Net can be regulated. I still believe that the obvious consequence of obvious influences will be to radically increase the ability of governments to regulate this Net. I also still believe that, in principle, this is not a bad thing. I am not against regulation, properly done. I believe regulation is essential to preserving and defending certain fundamental liberties. But I also still believe that we are far from a time when our government in particular can properly regulate in this context. This is both because of a general skepticism about government — grounded in a disgust about the particular form of corruption that defines how our government functions — and a particular skepticism about government — that it has not yet fully recognized just how regulation in the digital age works.
No doubt this particular mix of views will continue to puzzle some. How can I believe in regulation and yet be so skeptical about government? But it doesn’t take much imagination to understand how these apparently conflicting views can go together. I take it we all believe in the potential of medicine. But imagine your attitude if you were confronted with a “doctor” carrying a vial of leeches. There’s much we could do in this context, or at least, that is my view. But there’s a very good reason not to want to do anything with this particular doctor.
Part One. “Regulability”
It is said that cyberspace can’t be regulated. But what does it mean to say that something could be regulated? What makes regulation possible? That’s the question raised in this Part. If the Internet can’t be regulated, why? And whatever the reason, can it change? Might an unregulable space be tamed? Might the Wild West be won, and how?
Chapter 3. Is-ism
25.
See Steve Silberman, "We're Teen, We're Queer, and We've Got E-Mail,"
26.
Cf.