An Endnote on Regulating Cyberspace: Architecture vs Law?

Abstract

This 1998 article is an early analysis and application of Lessig's theory of cyberspace regulation. It is placed in the context of the (then) evolving nature of cyberspace and theories about it, from early 'digital libertarianism', to more dystopian views, to a proposal for the need for 'digital realism'. Five aspects of Lessig's 'code', and their significance, are discussed. Six illustrative examples of 'code' as regulation, drawn in part from Australian law, are considered: anonymity, cookies, spam black holes, P3P, Robot exclusion, and ECMS.

The contents of the article are as follows: I. INTRODUCTION: KING CANUTE’S COMEBACK II. THE EVOLVING NATURE OF CYBERSPACE A. A Realm of Freedom? - The Myths of Digital Libertarianism B. A Realm of Surveillance? - A Dystopian View of Cyberspace III. THEORIES OF CYBERSPACE REGULATION - DIGITAL REALISM NEEDED IV. CYBERSPACE REGULATION AS A FUNCTION OF FOUR CONSTRAINTS A. Norms, Morality and Self-Regulation B. Markets C. ‘Code’, ‘Nature’ and ‘Architecture’ D. Law - Direct and Indirect Regulation V. FIVE FEATURES OF CYBERSPACE ARCHITECTURE AS REGULATION A. Architecture is More than Software B. Architecture has Immediacy as a Constraint C. Most Architecture has High Plasticity D. The Legitimacy of Architecture Depends on Who Controls It E. Default Settings Give Regulation by Default VI. REGULATION BY AND OF CYBERSPACE ARCHITECTURE - ILLUSTRATIVE EXAMPLES A. Building Anonymity into Architecture B. Cookies - Caller ID with Hidden Opt-Out C. Mandatory Surveillance Code - Interceptability and Decryption Ability D. Spam Black Holes - Is Law Safe for ‘Return To Sender’ Architecture? E. Platform For Privacy Preferences (P3P) - What Can Protocols Achieve? F. Stopping Searching - Robot Exclusion Standards G. Electronic Copyright Management Systems (ECMS) - ‘IP Phone Home’ H. Copyright Circumvention Devices - Protecting Architecture

Keywords: cyberspace regulation, code, Lessig, Australia, anonymity, cookies, spam black holes, P3P, Robot exclusion, ECMS