all horse force

It can’t be a random coincidence that the man who inspired me to go to law school wrote an article called “The Law Of The Horse” (PDF). It just can’t. It’s not just any article, either, it’s an early formulation of the theories from his most important book. Basically he’s arguing against Judge Frank Easterbrook’s notion that “there is no more a ‘law of cyberspace’ than there is a ‘law of the horse’”.

We’ll leave aside the problems with belittling the role of the horse in shaping our legal code, not to mention human history, and we’ll point out that no one is arguing that we should have a separate set of laws for ‘cyberspace’ (a term I will see dead if it’s the last thing I do). The issue at hand is basically whether or not the internet exerts enough stress on the letter and intent of current laws to require modifications to them. Obviously Congress thought it did, or there would be no need for the DMCA (pdf). Now I hate on the DMCA every day, but I recognize that the internet requires new legislation; I just think it is required in areas like privacy and universal service, not copyright.

In general, Lessig argues that there are four regulators of behavior: law, market, society, and architecture. The first three don’t necessarily differ from online to offline, but online, architecture is code, and code lacks the transparency that we expect from architecture in the rest of the world. He gives the example of a store, where you are aware of surveillance offline and completely unaware online. You can see the cameras at Wal-Mart, but you have no idea what information Amazon is capturing about you. These types of differences should at least encourage lawmakers to rethink what’s on the books. Another example comes from France’s attempted prosecution of Yahoo for allowing Nazi paraphernalia to be posted to its auction site. Selling such items is against France’s anti-hate speech laws, but it’s not illegal here or in many of the other places Yahoo’s site is available. The basic architecture of the Internet is such that any site can be accessed from any attached device, and that’s a centrally important principle: it puts the inter in internet. So is it possible for a government with a regulatory interest to enforce the blocking of content from its citizens? Not really. You’ve probably heard something about the Great Firewall of China; how they censor internet access, blocking sites about Falun Gong, Taiwan, etc. The internet just isn’t a smart enough network to support this, though. It’s too easy to take content from a blocked domain and host it on an unblocked one; it even happens automatically through Google’s caching system. France might have some luck suing Yahoo, because they’re a big stationary target, but if they really intend to stomp down any Nazi material they can find on the internet, they’re wasting their time. The internet is large and pervasive enough that it has become a Global Free Speech Zone, which is in a certain way what it was designed to be. Professor Lessig rightly points out, though, that this architecture is not a given; the code was written one way and it could be changed to work another way. Thankfully the basic Internet Protocol is very deeply entrenched, but that doesn’t mean some legal protections aren’t justified. So there’s a “law of cyberspace” for Judge Easterbrook: keep the pipes dumb, in order to ensure liberty and justice for all.

evan :: Aug.13.2004 :: Notions :: 1 Comment »

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