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Chapter 7. What Things Regulate

Chapter 7. What Things Regulate

John Stuart Mill was an Englishman. He was also one of the most influential political philosophers in America. His writings ranged from important work on logic to a still striking text about sexual equality, The Subjection of Women. But perhaps his most important continuing influence comes from a relatively short book titled On Liberty. Published in 1859, this powerful argument for individual liberty and diversity of thought represents an important view of liberal and libertarian thinking in the second half of the nineteenth century.

“Libertarian”, however, has a specific meaning for us. For most, it associates with arguments against government.[1] Government, in the modern libertarian’s view, is the threat to liberty; private action is not. Thus, the good libertarian is focused on reducing government’s power. Curb the excesses of government, the libertarian says, and you will ensure freedom for your society.

Mill’s view was not so narrow. He was a defender of liberty and an opponent of forces that suppressed it, but those forces were not confined to government. Liberty, in Mill’s view, was threatened as much by norms as by government, as much by stigma and intolerance as by the threat of state punishment. His objective was to argue against these private forces of coercion. His work was a defense against liberty-suppressing norms, because, in England at that time, these were the real threat to liberty.

Mill’s method is important, and it should be our own as well. It asks, What is the threat to liberty, and how can we resist it? It is not limited to asking, What is the threat to liberty from government? It understands that more than government can threaten liberty, and that sometimes this something more can be private rather than state action. Mill was not concerned with the source of the threat to liberty. His concern was with liberty.

Threats to liberty change. In England, norms may have been the threat to free speech in the late nineteenth century; I take it they are not as much a threat today. In the United States in the first two decades of the twentieth century, the threat to free speech was state suppression through criminal penalties for unpopular speech; the strong protections of the First Amendment now make that particular threat less significant.[2] The labor movement was founded on the idea that the market is sometimes a threat to liberty — not so much because of low wages, but because the market form of organization itself disables a certain kind of freedom.[3] In other societies, at other times, the market is a key to liberty, not the enemy.

Thus, rather than think of “liberty’s enemy” in the abstract, we should focus upon a particular threat to liberty that might exist in a particular time and place. And this is especially true when we think about liberty in cyberspace. I believe that cyberspace creates a new threat to liberty, not new in the sense that no theorist had conceived of it before,[4] but new in the sense of newly urgent. We are coming to understand a newly powerful regulator in cyberspace. That regulator could be a significant threat to a wide range of liberties, and we don’t yet understand how best to control it.

This regulator is what I call “code” — the instructions embedded in the software or hardware that makes cyberspace what it is. This code is the “built environment” of social life in cyberspace. It is its “architecture.”[5] And if in the middle of the nineteenth century the threat to liberty was norms, and at the start of the twentieth it was state power, and during much of the middle twentieth it was the market, then my argument is that we must come to understand how in the twenty-first century it is a different regulator — code — that should be our current concern.

But not to the exclusion of other significant “regulators.” My argument is not that there’s only one threat to liberty, or that we should forget other, more traditional threats. It is instead that we must add one more increasingly salient threat to the list. And to see this new, salient threat, I believe we need a more general understanding of how regulation works — one that focuses on more than the single influence of any one force such as government, norms, or the market, and instead integrates these factors into a single account.

This chapter is a step toward that more general understanding.[6] It is an invitation to think beyond the threat to liberty from government power. It is a map for this more general understanding.

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