The Laws of
Cyberspace
Larry Lessig
Introductory Story
• Before Russian Revolution Tsar had
system of internal passports which marked
estate you came from and determined
places you could go
– Also who you could associate with and what
you could be
• They were like badges that granted or
barred access
Story 2
• Bolsheviks promised to change this
• Abolition of internal passport symbolized
freedom for Russian people
• Democratization of citizenship in Russia
• Not to last though, ~15 years later, starving
peasants flooded cities looking for food
• Stalin brought back system of internal passports
• Peasants again tied to rural land – lasted
throughout 70’s
Four Constraints on Behavior
• Law – a prominent regulator of behavior because if you
fail to follow the law their can be consequences
• Social Norms are a second constraint on behavior –
understandings or expectations of how I ought to behave
– These can regulate behavior in a far wider array of
contexts than any law
• The third is Market – it regulates by price, by pricing
goods, the market sets my opportunities, and through this
range of opportunities it regulates
• The fourth is nature or what he calls architecture
– The constraint of the world as it is
– I can’t see through walls, a constraint on my ability to know what
is happening on the other side
– No wheel chair ramp can constrain access to a library for a wheel
chair bound individual
Regulation through the Four
Constraints
• To understand a regulation we must understand the sum
of the four constraints operating together
• Any one cannot represent the effect of the four together
Cyberspace Hype
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Cyberspace is unavoidable
Cyberspace is unregulable
No nation can live without it
No nation will be able to control behavior in
it
• A place where individuals are inherently
free from the control of real space
sovereigns
His attack against the Hype
• He has a different view
• Now entering a world where freedom is not
assured
• Cyberspace has the potential to be the
most fully and extensively regulated space
that we have ever known
• Unless we understand this we are likely to
miss the transition from freedom into
control
Connecting Cyberspace to
Bolshevik Russia
• Similar to the real world, behavior in cyberspace is
regulated by four types of constraints
• Again, Law is one of those constraints
– copyright law, defamation law, sexual harassment law
– In spite of the hype that cyberspace is wide open,
these laws constrain behavior similarly to how
behaviors are constrained in real space
• There are also Norms in cyberspace as there are in real
space
• When norms are not followed, punishments are
meted out
Cyberspace and Bolshevik
Russia 2
• The market also constrains cyberspace as in real space
– change the price of access and constraints on access
differ
• Architecture, the fourth, is most significant of the four
– He calls this CODE - meaning the SW and HW which
constitute cyberspace
– the set of protocols implemented or codified in the SW
of cyberspace that determine how people interact, or
exist in the space
– It sets the terms upon which we enter or exist in
cyberspace, just like the architecture of the real space
How Architecture(CODE)
constrains Behavior
• Sometimes one must enter a password, othertimes they
don’t
• Some transactions produce link back to individual,
othertimes they don’t
• Sometimes encryption is an option, sometimes it isn’t
• These differences are created by code by programmers,
they constrain some behavior while allowing others
possible
• They are like architecture of real space regulating
behavior in cyberspace
Real Space and CyberSpace
• In real space architecture, market, norms,
and law regulate behavior
• In cyberspace code, market, norms, and
law regulate behavior
• As with real space, in cyberspace we need
to look at how the four work together to
constrain behavior
Example - Regulation of
Indecency on the Net
• Concern sharply grew in 1995
• Kids using net more frequently mixed with availability of
“porn”
• Article cites controversial and flawed study in
Georgetown Law Review reported that the new was
“awash with porn.”
• Time and Newsweek ran cover articles about its
availability
• Senators and Congressman bombarded with demands to
do something to regulate cybersmut
Why the Outcry?
• Author writes - more indecent materials
exist in real space than in cyberspace
• Most kids don’t have access to
cyberspace, so why the outcry?
• Look at it differently, what regulates
indecent materials in real space?
Why (U.S. View)
• 1) US laws regulate distribution of indecent materials to
kids
– ID checks to check age of buyers
– Laws requiring these businesses to be far from kids
• 2) Norms - possibly more important than laws
– Norms constrain adults not to sell this to kids
• 3) Market Norms - To buy this costs money and most kids
do not have money
• 4) Architecture - difficult in real space to hide the fact that
you are a kid
• So, constraints on being a kid are effective in real space
Cyberspace is Different Though
• In real space hard to hide that you are a kid, in
cyberspace the default is anonymity
• Easy to hide who one is
• Practically impossible for the same laws and
norms to apply in cyberspace
• Key difference is the regulability of cyberspace,
the ability of governments to regulate behavior
there
• Currently, cyberspace is less regulable than real
space, less governments can do
Why?
• Key difference is the code that constitutes
cyberspace
• Its current architecture is essentially unregulable
(at least in 1995)
• The architecture of 1995 and 1996 essentially
allowed anyone w/ access to roam w/o
identifying who they were - Net95 was Bolshevik
Russia
• One’s identity was invisible to the net then
• One could enter w/o credentials, w/o an internal
passport
• Users were fundamentally equal, essentially free
Communications Decency Act
(1996)
• With Net95 as the architecture of the network at the time- this statute was declared unconstitutional
• Because, at the time, any regulation attempting to zone
kids from indecent materials would be a regulation that
was too burdensome on speakers and listeners
• As the net was then, regulation would be too
burdensome
• Key problem was that the court spoke as if this
architecture, net95, was the only architecture that the net
could have
But...
• We know that the net has no nature, no single
architecture
• Net 95 is a set of features or protocols that
constituted the net at a particular period in time
• Nothing requires it to always be that way
(remember malleability?)
• Court spoke as if it had discovered the nature of
the net and was therefore deciding on the nature
of any possible regulation of the net
Univ of Chicago - Harvard Story
• Author was professor at UoC, to gain
access to net, just plug into a jack (located
throughout Univ)
• Any machine could do it and you would
have full, anonymous, free access to the
net
• It was this way because of the
administration
• This policy established the architectural
design of the UoC net
@Harvard
• One cannot connect one’s machine to the net unless the
machine is registered
– That is, licensed, approved, verified
• Only members of the Univ community can register their
machine
• Once registered all transactions over the net are
potentially monitored and identified to a particular
machine
• Anonymous speech on this net is not permitted
• Access can be controlled based on who someone is,
interactions can be traced
Two Views
• Controlling access is the ideal at Harvard
• Facilitating access is the ideal at Univ of
Chicago
• These two views are common today at
Univ’s across America
• UoC is Net95
• Harvard is not an Internet but an Intranet
architecture
– within an intranet, identity is sufficiently
established such that access can be controlled
Philosophies
• They both are built from TCP/IP but at
Harvard you have Internet Plus, the plus
means the power to control
• They reflect two philosophies about access
and reflect two sets of principles or values
on how speech should be controlled
• they parallel difference between political
regimes of freedom and political regimes of
control
The Point
• Nothing against Harvard or Chicago
• Wants us to see that at the level of a nation, architecture
is inherently political
• In cyberspace, the selection of an architecture is as
important as the choice of a constitution
• The code of cyberspace is its constitution, it sets terms
for access, sets the rules, controls their behavior, a sort
of sovereignty competing with real space sovereigns in
the regulation of behavior of real space citizens
Supreme Error
• Author feels that Supreme Court error is made by many
• The error of thinking that the architecture as we have it is
an architecture that we will always have
• That the space will guarantee us freedom, liberty
• He feels this is “profoundly mistaken.”
• While we celebrate the “inherent” freedom of the net, its
architecture is changing
Architecture Shift
• From an architecture of freedom to an
architecture of control
• As it becomes an architecture of control it
becomes more regulable
• US government is moving the architecture
in these directions
• How? The government can regulate the
architectures in cyberspace so that
behaviors in cyberspace become more
regulable
Two Examples
• Encryption
– Much of its history has been heavily regulated
by American government p 141
– Consistently banned its export
– Has proposed laws requiring manufacturers to
assure that any encryption have built within it
either a key recovery ability or an equivalent
back door so that gov could get access to
content of such communications
2nd Example
• The first was regulation of code, our
constitution offers very little control over
government regulation like this
• There is little the constitution offers against
the government’s regulation of business
• Second - Another use of encryption is
identification - besides hiding, you can
through digital certificates authenticate
who sent something
What is Achieved?
• If both regulations went into effect
• Since US is largest market for Internet products, and no
product can really succeed unless it is successful in U.S.
• The standards imposed in U.S. become standards for the
world.
• We would be exporting an architecture that facilitates
control
– Not just for us but for any government
• Is this completely true?
Where will it go?
• The US then, would move itself from a
symbol of freedom to a peddler of control
• But, is it all bad?
• Read bottom of p 142 and selected
portions of 143
• End