Книга: Code 2.0

Cyberspace Regulations: Spam and Porn

Cyberspace Regulations: Spam and Porn

Spam and porn are regulated differently in cyberspace. That is, these same four modalities constrain or enable spam and porn differently in cyberspace.

Let’s begin with porn this time. The first difference is the market. In real space porn costs money, but in cyberspace it need not — at least not much. If you want to distribute one million pictures of “the girl next door” in real space, it is not unreasonable to say that distribution will cost close to $1 million. In cyberspace distribution is practically free. So long as you have access to cyberspace and a scanner, you can scan a picture of “the girl next door” and then distribute the digital image across USENET to many more than one million people for just the cost of an Internet connection.

With the costs of production so low, a much greater supply of porn is produced for cyberspace than for real space. And indeed, a whole category of porn exists in cyberspace that doesn’t in real space — amateur porn, or porn produced for noncommercial purposes. That category of supply simply couldn’t survive in real space.

And then there is demand. Porn in cyberspace can be accessed — often and in many places — for free. Thousands of commercial sites make porn available for free, as a tease to draw in customers. Even more porn is distributed in noncommercial contexts, such as USENET, or free porn websites. Again, this low price translates into much greater demand.

Much of this supply and demand is for a market that, at least in the United States, is constitutionally protected. Adults have a constitutional right in the United States to access porn, in the sense that the government can do nothing that burdens (perhaps unreasonably burdens) access to porn. But there is another market for porn in the United States that is not constitutionally protected. Governments have the right in the United States to block access by kids to porn.

As we saw in the previous section, for that regulation to work, however, there needs to be a relatively simple way to know who is a kid. But as we’ve seen throughout this book, this is an architectural feature that cyberspace doesn’t have. It’s not that kids in cyberspace can easily hide that they are kids. In cyberspace, there is no fact to disguise. You enter without an identity and you identify only what you want — and even that can’t be authenticated with any real confidence. Thus, a kid in cyberspace need not disclose that he is a kid. And therefore he need not suffer the discriminations applied to a child in real space. No one needs to know that Jon is Jonny; therefore, the architecture does not produce the minimal information necessary to make regulation work.

The consequence is that regulations that seek selectively to block access to kids in cyberspace don’t work, and they don’t work for reasons that are very different from the reasons they might not work well in real space. In real space, no doubt, there are sellers who want to break the law or who are not typically motivated to obey it. But in cyberspace, even if the seller wants to obey the law, the law can’t be obeyed. The architecture of cyberspace doesn’t provide the tools to enable the law to be followed.

A similar story can be told about spam: Spam is an economic activity. People send it to make money. The frictions of real space significantly throttle that desire. The costs of sending spam in real space mean that only projects expecting a significant return get sent. As I said, even then, laws and norms add another layer of restriction. But the most significant constraint is cost.

But the efficiency of communication in cyberspace means that the cost of sending spam is radically cheaper, which radically increases the quantity of spam that it is rational to send. Even if you make only a .01% profit, if the cost of sending the spam is close to zero, you still make money.

Thus, as with porn, a different architectural constraint means a radically different regulation of behavior. Both porn and spam are reasonably regulated in real space; in cyberspace, this difference in architecture means neither is effectively regulated at all.

And thus the question that began this section: Is there a way to “regulate” spam and porn to at least the same level of regulation that both face in real space?

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