An Endnote on Regulating Cyberspace: Architecture vs Law?

(1988) University of New South Wales Law Journal 21(2): 593

27 Pages Posted: 12 Dec 2012

See all articles by Graham Greenleaf

Graham Greenleaf

University of New South Wales, Faculty of Law

Date Written: December 11, 1998

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

Suggested Citation

Greenleaf, Graham, An Endnote on Regulating Cyberspace: Architecture vs Law? (December 11, 1998). (1988) University of New South Wales Law Journal 21(2): 593 . Available at SSRN: https://ssrn.com/abstract=2188160

Graham Greenleaf (Contact Author)

University of New South Wales, Faculty of Law ( email )

Sydney, New South Wales 2052
Australia
+61 2 9385 2233 (Phone)
+61 2 9385 1175 (Fax)

HOME PAGE: http://www2.austlii.edu.au/~graham

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