Many believed Unger was arguing that we should put everything up for grabs all the time, that nothing should be certain or fixed, that everything should be in constant flux. But that is not what he meant.
His meaning was instead just this: That we should interrogate the necessities of any particular social order and ask whether they are in fact necessities, and we should demand that those necessities justify the powers that they order. As Bruce Ackerman puts it, we must ask of every exercise of power: Why?[45] Perhaps not exactly at the moment when the power is exercised, but sometime.
“Power”, in this account, is just another word for constraints that humans can do something about. Meteors crashing to earth are not “power” within the domain of “it’s all politics.” Where the meteor hits is not politics, though the consequences may well be. Where it hits, instead, is nothing we can do anything about.
But the architecture of cyberspace is power in this sense; how it is could be different. Politics is about how we decide, how that power is exercised, and by whom.
If code is law, then, as William Mitchell writes, “control of code is power”: “For citizens of cyberspace, . . . code . . . is becoming a crucial focus of political contest. Who shall write that software that increasingly structures our daily lives? ”[46] As the world is now, code writers are increasingly lawmakers. They determine what the defaults of the Internet will be; whether privacy will be protected; the degree to which anonymity will be allowed; the extent to which access will be guaranteed. They are the ones who set its nature. Their decisions, now made in the interstices of how the Net is coded, define what the Net is.
How the code regulates, who the code writers are, and who controls the code writers — these are questions on which any practice of justice must focus in the age of cyberspace. The answers reveal how cyberspace is regulated. My claim in this part of the book is that cyberspace is regulated by its code, and that the code is changing. Its regulation is its code, and its code is changing.
We are entering an age when the power of regulation will be relocated to a structure whose properties and possibilities are fundamentally different. As I said about Russia at the start of this book, one form of power may be destroyed, but another is taking its place.
Our aim must be to understand this power and to ask whether it is properly exercised. As David Brin asks, “If we admire the Net, should not a burden of proof fall on those who would change the basic assumptions that brought it about in the first place? ”[47]
These “basic assumptions” were grounded in liberty and openness. An invisible hand now threatens both. We need to understand how.
One example of the developing struggle over cyber freedoms is the still-not-free China. The Chinese government has taken an increasingly aggressive stand against behavior in cyberspace that violates real-space norms. Purveyors of porn get 10 years in jail. Critics of the government get the same. If this is the people’s republic, this is the people’s tough love.
To make these prosecutions possible, the Chinese need the help of network providers. And local law requires that network providers in China help. So story after story now reports major network providers — including Yahoo! and Microsoft — helping the government do the sort of stuff that would make our Constitution cringe.
The extremes are bad enough. But the more revealing example of the pattern I’m describing here is Google. Google is (rightly) famous for its fantastic search engine. Its brand has been built on the idea that no irrelevant factor controls its search results. Companies can buy search words, but their results are bracketed and separate from the main search results. The central search results — that part of the screen your eyes instinctively go to — are not to be tampered with.
Unless the company seeking to tamper with the results is China, Inc. For China, Google has promised to build a special routine.[48] Sites China wants to block won’t appear in the Google.CN search engine. No notice will be presented. No system will inform searchers that the search results they are reading have been filtered by Chinese censors. Instead, to the Chinese viewer, this will look like normal old Google. And because Google is so great, the Chinese government knows most will be driven to Google, even if Google filters what the government doesn’t want its people to have.
Here is the perfect dance of commerce with government. Google can build the technology the Chinese need to make China’s regulation more perfectly enabled, and China can extract that talent from Google by mandating it as a condition of being in China’s market.
The value of that market is thus worth more to Google than the value of its “neutral search” principle. Or at least, it better be, if this deal makes any sense.
My purpose here is not to criticize Google — or Microsoft, or Yahoo! These companies have stockholders; maximizing corporate value is their charge. Were I running any of these companies, I’m not sure I would have acted differently.
But that in the end is my point: Commerce has a purpose, and government can exploit that to its own end. It will, increasingly and more frequently, and when it does, the character of the Net will change.
Radically so.
Part Two - Regulation By Code
The lesson of the last part was that the interaction between commerce and government will change the effective architecture of the Internet. That change will increase the regulability of behavior on the Internet. Powder will be sprayed on the invisible men of cyberspace, and after the spray, their exploits will be more easily known.
But so far my story has not changed the basic mode by which government regulates. So far, the government threatens punishment, and that threat is intended to create the incentive for individuals to obey the government’s rule. The changes in the effective architecture of cyberspace that I have described would simply make it easier for the state to make good on its threat, and that would reduce the expected value of criminal behavior (preferably below zero). Traceability will increase effective enforcement; effective enforcement will increase the costs of deviating from a state-specified rule.
In this part, I consider a different kind of regulation. The question here is not how the architecture of the Net will make it easier for traditional regulation to happen. The issue here is how the architecture of the Net — or its “code” — itself becomes a regulator. In this context, the rule applied to an individual does not find its force from the threat of consequences enforced by the law — fines, jail, or even shame. Instead, the rule is applied to an individual through a kind of physics. A locked door is not a command “do not enter” backed up with the threat of punishment by the state. A locked door is a physical constraint on the liberty of someone to enter some space.
My claim is that this form of regulation will become increasingly common in cyberspace. And it has, moreover, a distinctive and often counter-intuitive character. The aim of this part is to explore this distinctive mode of regulation as a step to understanding more systematically the interaction between technology and policy.
Chapter 6. Cyberspaces
I’ve said we can distinguish the Internet from cyberspace. To make the distinctive form of regulation that is the subject of this part salient, we need to say a bit more about this distinction. The Internet is a medium of communication. People do things “on” the Internet. Most of those things are trivial, even if important. People pay bills on the Internet, they make reservations at restaurants. They get their news from the Internet. They send news to family members using e-mail or IM chat. These uses are important in the sense that they affect the economy and make life easier and harder for those using the Internet. But they’re not important in the sense that they change how people live. It’s very cool that you can buy books with one click at Amazon. I buy tons (maybe literally) of books I wouldn’t otherwise have bought. But my life has not been changed by one-click (even if my bank account has). It’s been made easier and more literate, but not anything fundamentally different.
45.
In Bruce Ackerman,
46.
William J. Mitchell,
47.
David Brin,
48.
Though the plan remains uncertain. In June 2006, Google co-founder Sergey Brin expressed some doubts about Google's plans. See Thomas Crampton, "Google Is Voicing Some Doubt Over China,"