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].
56.
See Geoffrey R. Stone, "Imagining a Free Press,"
57.
Dan Hunter argues it is not our choice anyway. See Dan Hunter, "Philippic.com,"
58.
Compare Jonathan Zdziarski, "Ending Spam: Bayesian Content Filtering and the Art of Statistical Language Classification 31 (2005) and DSPAM, available at http://dspam.nuclearelephant.com/ (cached: http://www.webcitation.org/5J6nP0fwQ).